Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

When Is New Jersey The “Home State” For My Child?

 After six months (absent emergent circumstances).  The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) clearly directs New Jersey child custody lawyers that, pursuant to this federal law, upon the child residing in one state for six consecutive months makes that state the child’s “home state.”  As attorneys we understand that, no matter what reason, a child lives in New Jersey for the past six months, jurisdiction is in the state of New Jersey.  While this law may seem pretty clear, the following case demonstrates how complicated things can get.  This is yet another reason why having a New Jersey lawyer with a law firm that only handles child custody and other family law matters is essential.

In Spiegel v. Smith, father Floyd Smith appealed parenting time orders dated August 26, 2014 and November 12, 2014, entered by the Superior Court of New Jersey, Family Part of Cape May County, and argued that the court lacked jurisdiction. However, the New Jersey Appellate Division found that the record supported the Family Part court’s conclusion that under New Jersey Statute 2A:34-53 to -95, the Uniform Child Jurisdiction and Enforcement Act, its exercise of jurisdiction was proper. As such, the appellate panel affirmed the decision of the Family Part of Cape May County.

Floyd and Stacy Spiegel got married in March of 2000 in New Jersey. During the course of their marriage they had two children together. At some point before 2013, Stacy and the kids started living in Maryland.

Stacy and Floyd entered into a Separation and Property Settlement Agreement on November 4, 2012. This agreement stated that the couple had separated on October 1, 2012, and that both intended to end their marriage. The separation agreement also provided for the division of the former couple’s property, that that each parent would share joint legal custody of the kids, that Stacy would have primary physical custody of the kids, established Floyd’s parenting time schedule, and specified his child support obligation. The separation agreement further stipulated that an issue arising out of the separation agreement would be settled by an application of Maryland law.

Under the agreement, the parents also agreed that Stacy would move with the children to specific defined counties in New Jersey. As a result, Stacy and the children moved to New Jersey on December 1, 2012. Floyd chose to stay in Maryland. The terms provided for in the settlement agreement were incorporated into a consent order entered by the Circuit Court of Montgomery County, Maryland on December 14, 2012. Then on November 12, 2013, a judgment of absolute Divorce was entered by the Maryland court, which granted Stacy a divorce from Floyd and terminated their marriage. This judgment also incorporated the provisions of the former couple’s separation agreement by reference.

Stacy filed a verified petition with the Family Part of Cape May County, and a verified statement to register the judgement of divorce from Maryland with forms provided by the county clerk’s office on March 5, 2014. Even though the petition provided by the clerk’s office mentioned a request to modify the support obligation on March 7, 2014, the Family Part’s presiding judge issued notice to Floyd informing him of Stacy’s complaint for parent time and visitation rights custody, which was scheduled to be heard on April 4, 2014. While Stacy appeared for the proceeding on April 4, 2014, Floyd could not appear because he already been scheduled to appear at a witness for an unrelated court matter in Maryland.

The Family Part judge later informed Stacy that Floyd had filed commenced an action to enforce custody against her in Maryland. Due to the competing custody actions in two different states, and unsure of the status of the enforcement action in Maryland, the Family Part judge advised that more information was needed, and that Stacy had to consider and address which state should hear the issue. As such, the judge entered an order on April 4, 2014, that stated that it seemed as though jurisdiction over the issue remained in Maryland, and adjourned the issue so that Stacy could talk to an attorney and address the jurisdictional issue.

The parents met in court again on July 35, 2014. While the Family Part found that Stacy had filed the registration form and paid the fee to register the judgment of divorce from Maryland in New Jersey, Floyd’s lawyer argued that the registration of the judgment of divorce from Maryland was improper, and that the Family Part did not have jurisdiction over Stacy’s motion. The judge agreed to grant Floyd a hearing to determine the validity of Stacy’s registration of the judgment of divorce from Maryland, and whether the court had jurisdiction to hear Stacy’s motion to modify parenting time. The Family Part judge further suggested that the parents try to agree upon a mutual parenting time schedule. The parents did in fact agree on a detailed and comprehensive parenting time schedule, and placed the terms of the agreement on the record. The parents further informed the court that they agreed that the Maryland judgment of divorce was registered properly in New Jersey, and there was no longer any need to hear that issue. However, Floyd’s attorney still reserved his right to contest the jurisdiction of the Family Part court, and requested more time to contemplate the method in which the issue of jurisdiction could be resolved.

The Family Part entered an order on August 26, 2014, that reflected the parenting agreement that the parents reached on July 25, 2014. The last section of the order stated the parents would inform the court in a week if there was still any outstanding jurisdictional issue, and if the issue need to be scheduled for trial. Floyd filed a motion for reconsideration on September 5, 2014, and argued that the Family Part did not have the jurisdiction to enter the order dated August 26, 2014, that modified the parenting time sections of the Maryland judgment of divorce. As a result, the Family Part judge sent a letter to Associate Judge Cynthia Callahan of the Circuit Court of Montgomery County in Maryland, and informed her of the motion for reconsideration of the August 26, 2014 parenting time order and asked the Maryland Court to review the jurisdictional issue.

The Maryland judge held a hearing on October 9, 2014 in order to determine if the State of Maryland was an inconvenient forum to exercise “continuing exclusive jurisdiction” over the parent’s parenting time issue. In an order dated October 26, 2014, Judge Callahan found that Maryland was an inconvenient forum to resolve the child custody disputes between Stacy and Floyd. The judge then transferred jurisdiction to the Superior Court of New, Family Part of Cape May County, allowing the exercise of jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act.  

The Family Part heard oral argument on Floyd’s motion for reconsideration on November 7, 2014, and rejected his argument that it did not have jurisdiction, because Judge Callahan had just found that Maryland was an inconvenient forum, which allowed the New Jersey Family Part to exercise jurisdiction under the UCCJEA. At the November 7, 2014 proceeding, the parents agreed to additional terms relating to child custody. Then on November 12 2014 the Family Part issued an order that denied Floyd’s motion for reconsideration, and incorporated the terms of the parent’s agreement. Floyd appealed.

Only appeal, Floyd challenged only the Family Part’s jurisdiction. The New Jersey Appellate Division stated that the Uniform Child Custody Jurisdiction and Enforcement Act should be interpreted to avoid competition and conflict between jurisdictions, and require cooperation with courts in other states, to make sure that custody determinations are made in the state that can best decide the case. One of the primary goals of the UCCJEA is to prioritize home state jurisdiction in child custody disputes. The appellate panel held that the Family Part court could modify the judgment of divorce from Maryland if: (1) the Family Part would have otherwise had jurisdiction to make the initial child custody determination, and (2) the Maryland court determined that the New Jersey Family Part would be a more convenient forum. The New Jersey Appellate Division found that both these required elements were met, and affirmed the decision of the Family Part.

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