Art by edkohler

GRIFFITH v. TRESSEL, 394 N.J. Super. 128, Appellate Division, A-1213-05T3 [LINK], June 25, 2007:

An agreement between the parties cannot bind the courts of this state to accept subject matter jurisdiction when not permitted by law. Neger v. Neger, 93 N.J. 15, 35 (1983); Peregoy v. Peregoy, 358 N.J. Super. 179, 184 (App. Div. 2003); cf. N.J.S.A. 2A:34-71b(5) (providing that “any agreement of the parties as to which state should assume jurisdiction” is one factor a court must consider in determining whether this state or another provides a more appropriate forum for a custody dispute).

The New Jersey’s Uniform Child Custody Jurisdiction and Enforcement Act (NJUCCJEA) defines the term “child custody determination” broadly to include any “judgment, decree or other order of a court providing for the legal custody, physical custody or visitation with respect to a child[, including] permanent, temporary, initial and modification order[s].” N.J.S.A. 2A:34-54 (also defining the term “child custody proceeding” to include “a proceeding in which legal custody, physical custody or visitation . . . is an issue”). A parental agreement about custody or parenting time incorporated in a judgment or order is a custody determination, and a motion to modify that determination is a custody proceeding within the meaning of N.J.S.A. 2A:34-54.

The first question a court must consider when a question of jurisdiction is raised on a motion to modify a custody order entered by a court of this state is whether this state acquired “exclusive, continuing jurisdiction” over custody determinations involving this family when the initial order was entered.

The relevant statute is N.J.S.A. 2A:34-66a, which provides:
a. Except as otherwise provided [for exercise of temporary emergency jurisdiction pursuant to N.J.S.A. 2A:34-68], a court of this State that has made a child custody determination consistent with [N.J.S.A. 2A:34-65 (initial custody jurisdiction) or N.J.S.A. 2A:34-67 (jurisdiction to modify)] has exclusive, continuing jurisdiction over the determination . . . .

Pursuant to this provision, this state acquires “exclusive, continuing jurisdiction” when a court of this state makes an initial custody determination authorized by N.J.S.A. 2A:34-65 or modifies a custody determination made by another state when authorized to do so by N.J.S.A. 2A:34-67. Ibid.; accord UCCJEA, § 202.

When the courts of this state have acquired “exclusive, continuing jurisdiction,” the second question a court confronted with a motion to modify that order must consider is whether, during the time between the initial order and the filing of the motion for modification, circumstances have changed so as to divest this state of that jurisdiction. Subsections a(1) and (2) of N.J.S.A. 2A:34-66, which are modeled on Section 202(a)(1) and (2) of the UCCJEA, define those circumstances. Pursuant to N.J.S.A. 2A:34-66, New Jersey’s “exclusive, continuing jurisdiction” is retained 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.
[N.J.S.A. 2A:34-66a(1)-(2).]

Thus, N.J.S.A. 2A:34-66 addresses the problem of competing jurisdiction and potentially conflicting orders in two ways – by specifying the substantive standards and limiting authority to apply them. While a court of any state may determine that New Jersey has lost its jurisdiction because the child and both of the child’s parents have left New Jersey, N.J.S.A. 2A:34-66a(2), only a New Jersey court can determine that New Jersey has lost jurisdiction based on a lack of significant connection and substantial evidence. Accord UCCJEA, § 202(a)(1)-(2).

Under subsection a(1) of N.J.S.A. 2A:34-66, a court must determine whether it lacks jurisdiction because “neither the child, [nor] the child and one parent . . . have a significant connection with this State and . . . substantial evidence is no longer available . . . .” N.J.S.A. 2A:34-66a(1). A literal reading compels the conclusion that jurisdiction is retained until both the requisite “significant connection” and the requisite “substantial evidence” are lacking. Stated in the affirmative, N.J.S.A. 2A:34-66a(1) provides that while this state has either the requisite “significant connection” or “substantial evidence,” its exclusive jurisdiction continues.

So long as there is either a “significant connection” or “substantial evidence,” exclusive, continuing jurisdiction is retained.

The question whether the requisite significant connection remains is fact specific and the scenarios vary greatly from case-to-case. Generally, however, courts of other jurisdictions applying statutes similar to New Jersey’s have found a “significant connection” when the parent who remains in the state in which the custody order was entered exercises parenting time. Where there is visitation with a parent in the state, other factors (such as the length of time since the child has lived elsewhere, the child’s involvement with other family members and activities in the state and agreements concerning the site for post-judgment litigation) are generally considered relevant to the question whether jurisdiction should be declined in favor of a more appropriate forum. See, e.g., West, supra, 216 S.W. 3d at 562 (finding jurisdiction continued where children spent twenty percent of their time with their father who remained in Arkansas); Grahm, supra, 34 Cal. Rpt. 3d at 272-74 (finding adequate connection based on parenting time during the summer and alternating holidays and noting that there is a “significant connection” so long as the remaining parent continues to assert and exercise visitation rights); Steckler v. Steckler, 921 So.2d 740, 741-42 (Fla. Dist. Ct. App. 2006) (finding adequate connection based on visitation for four weeks in summer and during winter break in alternate years); Fish, supra, 596 S.E. 2d at 655-56 (finding adequate connection based on visitation during the month of July and five other times during the year); Horgan v. Romans, 851 N.E.2d 209 (Ill. App. Ct. 2006) (acknowledging retention of exclusive, continuing jurisdiction based on father’s parenting time but affirming order declining exercise in favor of a more appropriate forum); Ruth, supra, 83 P. 3d at 1253 (significant connection based on visitation in Kansas two weekends per month and during the summer); Shanoski v. Miller, 780 A.2d 275, 276-78 (Me. 2001) (finding adequate connection based on parenting time but concluding that there was no error in declining exercise where child had reached school age since leaving Maine and remanding for consultation with the Florida judge who had issued a protective order); Watson v. Watson, 724 N.W.2d 24, 30 (Neb. 2006) (quoting and approving the construction in Grahm, supra, 34 Cal. Rptr. 3d at 274); Stocker v. Sheehan, 786 N.Y.S.2d 126 (N.Y. App. Div. 2004) (noting that Rhode Island, the state that entered the initial custody order, must decide the question of “significant connection” and “substantial evidence” but noting that visitation with the parent who remained in Rhode Island was an adequate basis for continuing exercise of that jurisdiction); Forlenza, supra, 140 S.W. 3d at 376 (finding adequate connection based on six visits with parent in Texas over a four-year period, four of which were one-month visits and noting that children also maintained contacts with relatives in Texas).

However, pursuant to N.J.S.A. 2A:34-71c, when a court of this state concludes that it is an inconvenient forum and that another state is a more appropriate forum, the court must take additional steps. The court must “stay the proceedings upon condition that a child custody proceeding be promptly commenced” in the other state and may impose conditions that are “just and proper.” Ibid.