Relocation to new states is becoming more and more common at every stage of people’s lives. Regardless of whether a couple is just married or has been married for twenty years, our society is mobile, and relocating to a new place for a job or family is not unusual. Even though relocation is common, when children are involved it can get complicated. This is especially true when the relocation is a result of or attendant to a divorce or separation. In the past, some parents would take children, relocate, and then immediately file for custody in the new state in an attempt to make it more difficult for the other parent to defend such a suit or in an effort to find a friendlier court. In response to this practice, in 1997, the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) was drafted, and it has been adopted by 49 states, including New Jersey. The UCCJEA provides the rules on where a child custody case should be filed.
The UCCJEA is premised on the thought that the court best situated to make an initial child custody determination is the court in the “home state” of a child. When a court is asked to make an initial custody determination (meaning a determination when there is no previous court order discussing custody or visitation of the child), the court will look to where the child has resided for the six months immediately preceding the beginning of the custody suit. That state is considered the child’s home state. If the child does not have a home state because he or she has not resided in any state for at least six months, the next appropriate court will be the state that has “significant connection” with the child and at least one of the parents and also where there is “substantial evidence” concerning the child. The purpose of this is to make sure that the place the custody suit is heard is the same place where there will be witnesses and evidence about the child and his or her well-being. If more than one state meets the significant connection/substantial evidence test, then the courts should communicate directly to determine which court is the more appropriate forum for the case.
The rules are different where a parent is attempting to modify a prior custody order. In those cases, the last court to enter an order concerning a child has “continuing, exclusive jurisdiction.” The only way that bringing the case in another location will be permitted will be where neither the child nor either parent resides in the state, or where the court with continuing jurisdiction determines it cannot no longer pass the significant connection/substantial evidence test. In most circumstances, you will need to file an application in the state that originally had jurisdiction to request that state to allow another state to have jurisdiction. The rules are complicated and depend on the specific circumstances of your case.
The UCCJEA is a very large and complex piece of legislation, and this is just a small overview of two of the provisions. in helping clients navigate interstate custody actions that involve the UCCJEA. Call us today at (732) 529-6937 to talk about your case.