A recent case out of New Jersey gives a great overview of the myriad child custody laws in NJ, particularly concerning jurisdictional aspects. The case, BG v LH, concerns three children. The eldest son has mental health issues, but lives in Israel and is now an adult. The younger son has extreme cerebral palsy. He has a wheelchair, cannot speak, and can communicate only using facial expressions, various noises, and a DynaVox. His physical disabilities are severe, and almost all of his daily functions are performed by someone else on his behalf. On June 30, 2014, the children’s parents were officially divorced upon the issuance of a Dual Final Judgment of Divorce (DFJOD), but prior to this, the court had entered a final judgment concerning the custody and parenting time issues, which the parties had consented to. Within this custody order, the mother had asserted that the father had agreed that she be allowed to relocate with her children to Massachusetts, specifically in the Boston/Newton area. She did move, and the parties continued to share custody and visitation of the children pursuant to the order.
However, in November 2016, the father picked up the younger son, then on the way back to New Jersey, traveled to Connecticut to retrieve his daughter who was at a school retreat. The daughter wanted to drive back with her friends and go visit her father from there, but the father refused, which of course, led to a confrontation. Although it was eventually resolved, the daughter’s anger discolored the entire weekend, and upon a week of returning the children to Massachusetts, the department of children and family received complaints, alleging that there was sexual and physical abuse upon the children by their father. Eventually, the complaints were said to be unsubstantiated, although the mother had already filed suit to amend custody in Massachusetts by that time, and the judge there restricted the father to have supervised parenting time only.
Courts interpreting child custody laws in NJ are bound to also follow the New Jersey Uniform Child Custody Jurisdiction and Enforcement Act, or NJUCCJEA. Essentially, the law provides that because New Jersey entered the initial orders concerning custody, that New Jersey can now be the only jurisdiction that is able to determine if it has lost jurisdiction. The children moved and currently reside in Massachusetts, so under the act, Massachusetts is the child’s home state. However, the court was required to go through a three-part analysis to determine whether it had appropriate jurisdiction to make custody determinations.
First, the court must consider whether it has ‘continuing, exclusive jurisdiction.’ Simply enough, by virtue of issuing an initial custody order, the court has ‘continuing, exclusive jurisdiction’ under the law. So, the first stage has been met.
Next, the court has to consider whether circumstances have changed to an extent to divest the state of jurisdiction over the matter. Jurisdiction will remain in the state of New Jersey unless there is no significant connection or substantial evidence to New Jersey which would allow its courts to retain jurisdiction. To determine whether there is a significant connection, NJ courts undertake a fact-intensive inquiry. For what it’s worth, a significant connection cannot be that one of the parents continues to reside in the state –there must be more. In the instant case, the defendant remains in New Jersey. The parties share joint legal custody and the defendant has ample parenting time in New Jersey. This latter factor appeared to be key for the court, latching on to the fact that both parties agree the children visit New Jersey regularly for purposes of visitation, and thus have a significant connection to the state. As for the prong which requires that substantial evidence be available in the state, the court was not persuaded that Massachusetts also had witnesses and evidence as to the dispute; rather, there was also evidence available in New Jersey by virtue of the significant connection, and thus there would be witnesses in New Jersey, too. Thus, the court determined that New Jersey had continuing, exclusive jurisdiction.
The next two stages require the court to determine if New Jersey is an inconvenient forum, and if so, whether Massachusetts is thus a more appropriate forum. Both prongs must be met for Massachusetts to acquire jurisdiction. Before making a determination using child custody laws in NJ, the court has to consider all relevant factors, essentially asking whether the court of another State is in a more advantageous position to make a custody determination. There are eight factors specifically listed under the NJUCCJEA, including the presence of domestic violence, the length of time the child has lived outside NJ, the distance between the courts in each state, the relative financial circumstances of the parties, any agreement of the parties as to jurisdiction, the nature and location of evidence present and available in each state, the ability of each court to determine the issues, and the familiarity of the court with the facts and issues of the litigation.
As to the issue of domestic violence, there was no evidence of it existing, but the court determined that there was no reason to favor one state over the other on this matter. As to the children living outside the state, the court determined that, while the children lived in Massachusetts for about three years before the current case, there was nothing to indicate that it would be a more appropriate forum than New Jersey, citing to case precedent, where children lived outside the state for about 4 years, but still the court determined NJ was appropriate. Again, this factor did not indicate one state being favored over the other. As to the proximity of the states, it is about a five-hour drive from each party’s home. This factor did not determine that either state should be favored over the other.
As to the relative financial circumstances of the parties, the mother did not show evidence she would be prejudiced if required to litigate in New Jersey based on financial concerns, and she consented to move. Therefore, the factor does not favor one state over the other. The parties consented to New Jersey having custody, although it is not an automatic presumption that New Jersey will continue to have this right. The court must consider such consent, and if it is shown that there was significant consideration by one party to consent to the removal (such as by avoiding a lengthy removal hearing), then this is persuasive. In the instant case, this factor went against finding that New Jersey is an inconvenient place to hold the case.
As to the evidence of the case, the court cannot know for sure which witnesses can be called at trial, nor is it sure of the exact nature and location of documents or other evidence which might be presented. There will likely be witnesses from both states, but also notes that, given the younger son’s significant disabilities, the burden to travel as a witness would be heaviest on him. Therefore, Massachusetts would be the more appropriate forum for him, and NJ more inconvenient.
In summation, after 6 factors, the court is tied with one factor favoring NJ and one factor favoring Massachusetts. The ability of the court to decide the issues was the next factor. There was no evidence that either court would be unable to hear the matter in a timely fashion, and so no state was favored over the other. As to the final factor – the familiarity of the court of each state with the facts and issues of the case – the NJ court has a longer history of its connection to the case. The parties had an initial custody determination. They subsequently had a divorce. The agreement stated that it shall be governed by the laws of NJ. Of course, the judge considering the issue in NJ had no involvement to the case prior to this immediate matter. But the Massachusetts judge also had no involvement to the matter until the instant case either. The judge that heard the preliminary matters in Massachusetts had since retired. Therefore, the court determined that this factor did not favor one court over the other.
So, essentially, the matter was tied. The next step then, was to perform both a qualitative analysis. The burden upon the son traveling to New Jersey to potentially testify did not outweigh the agreement the parties made to carry out disputes in NJ. The difficulties facing the son in traveling to court do not necessarily relate to actually traveling to court, but rather to the inherent difficulties he encounters daily as a result of his disabilities. Therefore, the court placed more emphasis on the agreement to litigate in New Jersey rather than the burden of the witness traveling there.
When contesting child custody and visitation, child custody laws in NJ must be interpreted by the courts using multiple other statutes. When jurisdictional issues appear, the court has to follow the NJUCCJEA. If you have a custody matter that involves two or more states, contact the Law Offices of Peter Van Aulen for a free consultation at 201-845-7400. With over 20 years of experience, he can guide you through every family law issue you might have.