By Christine C. Fitzgerald, Esq.
Seiden Family Law, LLC
I. Introduction and History
Prior to the enactment of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), the Uniform Child Custody Jurisdiction Act (“UCCJA”) was enacted in 1961. The predecessor Uniform Act was eventually adopted by every state in the United States to discourage parental interstate kidnapping of children by establishing jurisdiction over a child custody case in one state and protecting an order of the state with jurisdiction from being modified if the state with jurisdiction retains jurisdiction. In 1981, the Parental Kidnapping Prevention Act (“PKPA”) was created to essentially afford the UCCJA full faith and credit. Although the UCCJA and PKPA often work in tandem, there are differences between the two Acts. First, in determining jurisdiction between two states, the PKA gives priority to the “home state” of a child while the UCCJA does not. Second, although the UCCJA states that jurisdiction of one state must be adhered to by other states until the jurisdiction is no longer valid, the PKPA gives continuing and exclusive jurisdiction to the state with jurisdiction until the parties and the child leave the state. These differences create problems in some custody cases.
Another problem with the UCCJA and PKPA is that neither Act addresses the enforcement of a child custody determination. Thus, in 1997, the Uniform Law Commissioners created the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) to replace the UCCJA, to resolve the problems between the UCCJA and the PKPA, and to address interstate enforcement of child custody orders. The UCCJEA has been enacted in 49 States, the District of Columbia, Guam, and the U.S. Virgin Islands. A list of each state and the state’s relevant UCCJEA provisions is attached hereto. Massachusetts is the only state that has not adopted the UCCJEA.
II. New Jersey Adoption of UCCJEA
New Jersey is a signatory to the UCCJEA. In New Jersey, the UCCJEA is codified under N.J.S.A. 2A:34-53 to 95, which became effective in 2004 (“NJ UCCJEA”). In the Assembly Judiciary Committee Statement to the bill that enacted the UCCJEA in New Jersey, the Assembly Judiciary Committee notes that the New Jersey Bill essentially conforms with the UCCJEA except for a couple of differences. These differences are:
1. The New Jersey Court has greater authority in the NJ UCCJEA to exercise discretion over custody determinations from foreign countries. Specifically, the UCCJEA Section 105, subsection a states “[a] court of this State shall treat a foreign country as if it were a State of the United States for the purpose of applying [Articles] 1 and 2.” The NJ UCCJEA goes one step further by adding that a foreign country will be treated as a state “if the foreign court gives notice and an opportunity to be heard to all parties before making child custody determinations.”
2. The New Jersey Court also have greater authority to decline to apply Act to foreign counties than the UCCJEA provides. The UCCJEA states that “[a] court of this State need not apply this [Act] if the child custody law of a foreign country violates fundamental principles of human rights.” Again, the NJ UCCJEA takes this one step further and does not require the Act to be applied in foreign countries if the country’s custody laws violates “fundamental principles of human rights or does not base custody decisions on evaluation of the best interests of the child.”
3. The NJ UCCJEA also provides a layer of protection for the disclosure of addresses by rewording subsection a of the UCCJEA. The NJ UCCJEA states, in pertinent part, “[u]nless a party seeks an exception to disclosure of information as provided by subsection e. of this section, each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child's present address, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period.” Although the UCCJEA does not include the phrase “[u]nless a party seeks an exception to disclosure of information as provided by subsection e. of this section”, the subsection e provision of N.J.S.A. 2A34-73 and the proposed language in UCCJEA §209(e) are nearly identical.
4. Finally, NJ UCCJEA adds a subsection to the UCCJEA §208, which deals with declining jurisdiction by reason of the conduct of a party. NJ UCCJEA requires that a “court consider as a factor weighing against the petitioner any taking of the child or retention of the child from the person who has rights of legal custody, physical custody or visitation, if there is evidence that the taking or retention of the child was to protect the petitioner from domestic violence or to protect the child or sibling from mistreatment or abuse” in making a determination to decline jurisdiction.
Despite these small, but important differences, the intent of NJ UCCJEA is similar to that of the UCCJEA, which is to “provide uniformity of [the] law in a time when the mobility of the American public makes it important to have laws regarding child custody determinations uniform from state to state” in order to decrease the cost of enforcement, increase the certainty of outcome, and increase efficiency in resolution.
III. Key Provisions of New Jersey UCCJEA
A. Initial Custody Determinations
New Jersey has jurisdiction to make a custody determination when New Jersey is the home state of the child on the date of commencement of the proceeding. A home state of a child is defined as “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.”
However, there are circumstances in which New Jersey will exercise jurisdiction even when New Jersey is not the home state of the child. In fact, in 2018, the Appellate Division specifically addressed the issue stating “[w]e recognize that the lack of home-state status does not necessarily divest a state of jurisdiction. A New Jersey court may exercise jurisdiction if no court of another state has home-state jurisdiction, or a court with home-state jurisdiction declines to exercise it, and two other factors are present: ‘(a) the child and the child's parents, or the child and at least one parent or a person acting as a parent have a significant connection with this State other than mere physical presence; and (b) substantial evidence is available in this State concerning the child’s care, protection, training and personal relationships.’”
B. Exclusive, Continuing Jurisdiction
NJ UCCJEA provides that New Jersey would have exclusive, continuing jurisdiction over a custody determination if a New Jersey Court made an initial custody determination until:
(1) a court of this State determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child's care, protection, training, and personal relationships; or
(2) a court of this State or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in this State.
However, if the New Jersey Court made an initial child custody determination, but does not have exclusive, continuing jurisdiction under subsection (a) of N.J.S.A. 2A:34-66, the New Jersey Court may only modify the custody determination if the Court would have jurisdiction to make the initial custody determination.
C. Modification to Custody Determinations
New Jersey Court has jurisdiction to modify a child custody determination when New Jersey has jurisdiction to make an initial custody determination and New Jersey has determined that the New Jersey Court would be a more convenient forum.
The first step when making a request to modify a custody determining is for the court to decide “whether this state acquired ‘exclusive, continuing jurisdiction’ over custody determinations involving this family when the initial order was entered.” An exercise of jurisdiction based on New Jersey being the “home state” of a child is preferred, but not required.
The next step for the Court to decide, if the Court determined that New Jersey does have exclusive, continuing jurisdiction, is “whether, during the time between the initial order and the filing of a motion for modification, circumstances have changed so as to divest this state of that jurisdiction.” In considering the second step, the emphasis is on the determination of whether New Jersey no longer has jurisdiction because there is a lack of significant connection and substantial evidence. This emphasis is based on the language of N.J.S.A. 2A:34-66(a), which states New Jersey has exclusive, continuing jurisdiction until “a court of this State determines that neither the child, the child and one parent nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child’s care, protection, training, and personal relationship.” The issue of whether there is a significant connection with the state is fact sensitive.
The last issue that may need to be addressed is a determination of whether a court of another State is in a better position to make the determination. If an issue of inconvenient forum is raised by motion of a party, then the Court must address the relevant factors as follows:
(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
(2) The length of time the child has resided outside of the state;
(3) The distance between the court in this State and the Court in the state that would assume jurisdiction;
(4) The relative financial circumstances of the parties;
(5) Any agreement of the parties as to which state should assume jurisdiction;
(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(7) The ability of the Court in each state to decide the issues expeditiously and the procedures necessary to present the evidence; and
(8) The familiarity of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.
If, after this consideration, the New Jersey Court concludes that New Jersey is an inconvenient forum and another State would be more appropriate, the Court must then stay the proceedings and may impose other terms that are appropriate. However, a custody action must be commenced promptly in the other court.
D. Emergency Jurisdiction
With respect to temporary emergency jurisdiction, the New Jersey Courts may exercise emergency temporary jurisdiction in specific and emergent circumstances. “A court of this State has temporary emergency jurisdiction if the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.” Thus, New Jersey can exercise emergency temporary jurisdiction even if New Jersey would not otherwise have jurisdiction.
E. Enforcement of Custody Determination
As stated above, one of the reasons for the creation of the UCCJEA was to add provisions regarding enforcement of a custody determination to the UCCJA. The NJ UCCJEA has two provisions dealing with the enforcement of a custody determination. First, the New Jersey Courts have a duty to enforce a custody determination of another state so long as the original state “exercised jurisdiction in substantial conformity” with the NJ UCCJEA or the circumstances met the jurisdictional determination in that the original state would have jurisdiction under the NJ UCCJEA and the determination was not modified. Additionally, the NJ UCCJEA gives the New Jersey Court power to use any remedy under New Jersey law to enforce the custody determination.
Further, the New Jersey Courts are authorized to grant any relief allowed under New Jersey law to enforce a registered custody determination made by a Court in another state. However, the New Jersey Court may not modify the registered custody determination made by the other State, unless N.J.S.A. 2A:34-67 applies.
Although complex, the UCCJEA and NJ UCCJEA are important laws for family law attorney to become familiar with in order to efficiently deal with interstate custody determination and proceedings. As recognized by the Assembly Judiciary Committee in New Jersey, our society has become increasingly mobile resulting in more custody contests whereby two states could assert jurisdiction over the same child and family. The determination of the home state of the child and whether New Jersey has jurisdiction to make the initial custody determination is usually the first step in this multi-step process in determining whether New Jersey should exercise exclusive, continuing jurisdiction and/or jurisdiction to modify a custody determination.
Regardless of the jurisdiction questions under NJ UCCJEA, a family law attorney should start by clarifying what is the Court being asked to do (e.g. modify an existing order, take temporary emergency jurisdiction, enforce an existing custody determination, or make an initial custody determination). The next step is to review the provision of the NJ UCCJEA that is relevant and all other provisions that are referenced in the initial provision.
These jurisdiction issues with custody cases can arise out of many different fact patterns, each one being unique. Without a thorough understanding and review of the NJ UCCJEA when jurisdiction issues arise, the cost and time of litigating the jurisdictional issue before even tackling the custody issue will put family law litigant at a disadvantage for the issues most important – the best interest of the child.