Child Custody Jurisdiction in New Jersey

By: Marc A. Rapaport, Empire State Building, 350 Fifth Ave, Ste 4400, New York, NY (212) 382-1600

Introduction

Jurisdiction in interstate child custody cases is principally governed by the Uniform Custody Jurisdiction Act and the Parental Kidnapping Prevention Act of 1980. The Uniform Child Custody Jurisdiction Act (UCCJA) is codified in New Jersey at N.J.S.A. 2A: 34-28, et. seq. The Parental Kidnapping Prevention Act of 1980 (PKPA) can be found at 28 U.S.C 1738A. Under these laws, there are multiple grounds upon which the courts of New Jersey can exercise jurisdiction in a child custody matter. Some of the more common situations are discussed below.

Home State Jurisdiction

Under N.J.S.A. 2A: 34-31(a)(1), the Superior Court of the State of New Jersey has jurisdiction to make a child custody determination by initial or modification decree if New Jersey is the home state of the child at the time of the commencement of the proceedings, or had been the child's home state within six months before commencement of the proceedings and the child is absent from this state because of his removal and retention by a person claiming his custody, or for other reasons, and a parent or person acting as parent continues to live in this state.

The mere fact that a child is physically present in New Jersey, or because the child and one of the contestants is present in this state, does not automatically confer jurisdiction on the New Jersey Superior Court . N.J.S.A 2A: 34-31 (b). Although physical presence of the child in New Jersey is desirable, it is not always a prerequisite for jurisdiction. N.J.S.A. 2A 34-31 (c).

Significant Connection/Best Interest Jurisdiction

The New Jersey Superior Court also has jurisdiction to decide a child custody case if it is in the best interests of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available substantial evidence concerning the child's present or future care, protection, training, and personal relationships. N.J.S.A 2A: 34-31 (a)(2)

Abandonment/Emergency Jurisdiction

Under N.J.S.A. 2A: 34-31 (a)(3), the Superior Court of New Jersey may assume jurisdiction to make a child custody determination by initial or modification decree if the child is physically present in this state, and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected.

Lack of Alternative Jurisdiction

Under N.J.S.A 2A:34-31, a fourth kind of jurisdiction is established under the UCCJA for cases in which no other state is interested in exercising jurisdiction.

The application of these laws in a particular case can involve complex factual and legal issues. These issues can be especially challenging if the parties have commenced separate custody proceedings in different states. The issue of who filed first may affect the ability of the court to proceed with a case. N.J.S.A. 2A:34-34. If you are faced with a child custody matter involving questions of jurisdiction, you should consult with an attorney who is experienced in the area of interstate custody matters.