Which State can enter a custody Order?

“Jurisdiction” is the right, power or authority to administer justice by hearing and determining controversies. In New Jersey, our family courts are vested with the jurisdiction to address issues involving the custody of children. However, in situations where parents move from one state or country to another, leaving or arriving into the State of New Jersey, a jurisdiction question arises over which court may decide the controversy.

In the Appellate Division’s decision in P.H. v. L.W., the Court was faced with a controversy where the parties met in Chicago while one party lived in New York and the other in South Dakota. The children were born in Chicago, before they returned to South Dakota with their mother. In 2015, L.W. and the children travelled east to live with P.H., first in New York and then New Jersey when P.H. signed a lease for a house in Dumont. However, a domestic violence situation developed and in January 2016, L.W. moved with the children back to South Dakota, where she filed for an order of protection and custody. Also, in January 2016, P.H. filed an application in New Jersey for custody, apparently failing to advise the Court of the short time the children resided in New Jersey. In October 2016, P.H. was issued an Order for custody of the children and L.W. filed a motion to dismiss the New Jersey case claiming that the New Jersey Court lacked jurisdiction. As the motion was denied, L.W. appealed the decision to the Appellate Division.

In analyzing the issue, the Appellate Division followed the steps outlined in N.J.S.A. 2A:34-65(a), which is part of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).  The first step was to determine the “home state” of the children, which is defined as the state where “a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of the child custody proceeding.”  Recognizing that the initial determination made by the family court in New Jersey was made based upon either a misrepresentation by P.H. or a failure of P.H. to advise the Court of the complete facts, the Appellate Division reversed the custody determination, noting that the evidence from L.W. clearly demonstrated that the children did not reside in New Jersey for six consecutive months before L.W. returned with them to South Dakota where she obtained an order for custody from the South Dakota court in January, 2016.

The UCCJEA provides a multi-step process whereby the Family Courts in New Jersey can assert or decline jurisdiction in situations where the children have resided in multiple states and/or countries. This case just reflects one of the many issues that can arise in these disputes. Clearly, it is incumbent upon the parties to provide accurate facts to the Court, but it is even more important for a party to utilize an attorney fully familiar with all aspects of the UCCJEA in order to have the best chance at success.

About the Author


John Nachlinger is a co-founder and managing attorney of Netsquire, a family law firm focused on streamlining divorces through effective mediation, settlement drafting, and court filing assistance. As a New Jersey Supreme Court Certified Matrimonial Law Attorney and Qualified Mediator, John guides couples toward equitable agreements without the cost and stress of litigation.

Recognized as a New Jersey Super Lawyer for over a decade, John’s client-focused approach aims to foster understanding during challenging transitions. With a background spanning top law journals, judicial clerkships, and boutique family law firms, John now applies his analytical skills to create workable solutions for all parties. His mediation services reshape the divorce journey by prioritizing compassion and compromise.

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