What happens when a parent leaves the state and relocates to another state?  Which state has decision making power over the issue of custody?

The recently issued unpublished Appellate Division decision  of Hinton-Lynch v. Horton dealt with the issue of whether New Jersey courts had decision making power regarding custody of a child who’s home state (state of habitual residence) had been determined to be Georgia.

The child in the above case was born in NJ, but moved to Georgia when she was five months old.  The courts of Georgia issued Orders declaring mother the custodial parent and addressing father’s visitation.  Several years later, mother returned to NJ and filed a motion here regarding father’s visitation.  Ultimately that motion was dismissed because of mother’s failure to appear.  Thereafter, father filed a motion in the NJ courts seeking to transfer custody to him.  The court scheduled a hearing and mother failed to appear.  The NJ court then granted father’s application and transferred custody to him.  Mother appealed the trial court’s decision, claiming among other things, that NJ courts did not have the power to make any modifications to custody as Georgia courts retained this power.

Issues of interstate custody are governed by the UCCJEA (“Uniform Child Custody Jurisdiction and Enforcement Act”), as codified in N.J.S.A. 2A: 34-53 to 95, which became effective December 13, 2004.  Prior thereto, this issue was governed by the UCCJA (“Uniform Child Custody Jurisdiction Act”) (N.J.S.A. 2A: 34-28 to 42).

The UCCJEA makes it clear that in order for a Court of this state to have decision making power regarding custody of a child, a court of another state cannot have decision making power over that child.  Therefore, if another state has entered an Order regarding custody and a Complaint for Custody has not been filed in NJ and the other state has not relinquished its authority over that child, NJ courts are barred from altering the decision of another court.  Note, however, that this does not prevent a NJ court from enforcing that Order once same is registered in NJ.

In the case cited above, it came down to an issue of timing.  The Georgia court relinquished its decision making power over this child after the NJ court had awarded father the transfer of custody.  Careful interpretation of the UCCJEA indicates that “any relinquishment of jurisdiction by the state with exclusive jurisdiction must occur before the other state assumes jurisdiction.”  Hinton-Lynch v. Horton at page 8.

EDITORS NOTE:  While this case was not reported, thus not precedential, it provides a good reminder of the concept of continuing exclusive jurisdiction that really is one of the bedrock principles in the UCCJEA which has been enacted in one form or another in almost every if not every state.  Under the prior law, what usually occurred was that once a child’s home state had changed for a period of more than 6 months, it was very easy to change jurisdiction to the new state. –Eric S. Solotoff