In our ever-changing society that is becoming more transient as we modernize, it’s important to remember time requirements for a state to establish jurisdiction over a child should you find yourself in need of a custody determination after residing across state lines. 

In the reported decision of P.H. v. L.W., the parties met in Chicago while P.H. lived in New York and L.W. lived in South Dakota, had twins born in South Dakota and, eventually after a sorted history, they resided together in New Jersey from July 18, 2015 to January 13, 2016 when L.W. packed all of her and the twins’ belongings and made her way back to South Dakota where she arrived on January 15, 2016. P.H. then returned to New York in early 2016.  The facts are explored below but it’s primarily important to look at the takeaways here based on those bare bones.

First, the Appellate Division reversed the trial court’s findings that New Jersey was the “home state” of the parties’ twins because they resided here for five (5) days short of the six (6) month requirement of N.J.S.A. 2A:34-54. The initial orders finding New Jersey as the home state were entered based upon the P.H.’s misrepresentation that the twins begin residing in New Jersey three (3) days earlier than L.W. and the twins actually moved in with him in Dumont (July 15, 2015 as compared to July 18, 2015).  That earlier date is when he signed the lease for the Dumont apartment, without L.W. on the lease, as opposed to the day that they actually moved in with him.

Additionally, the Appellate Division further found that the twins’ absence from New Jersey for the few days short of the six (6) month requirement was not “temporary”. If, for example, the twins were on vacation for those days, then the days would have counted toward the required time period.  Here, however, their absence was the result of L.W. moving permanently from New Jersey back to South Dakota where she hails from.

Although the trial court’s jurisdiction finding was based solely on the “home state” argument, the Appellate Division did not stop there to hammer home the point that New Jersey lacked jurisdiction.  Rather, it explored the alternatives that New Jersey could have used to find jurisdiction of the parties’ twins.

Citing to N.J.S.A. 2A:34-65(a)(2), New Jersey may still have custody over a child who resides here for less than six (6) months if:

  1. No other state has jurisdiction or
  2. A court with home-state jurisdiction declines to exercise it and
    • the child and at least one parent or person acting as the parent have a significant connection with New Jersey other than mere physical presence and
    • substantial evidence is available in New Jersey concerning the child’s care, protection, training and personal relationships.

Neither of the above requirements existed in the case at hand, in part due to the time that passed between the father arguing that New Jersey is the home state (and leaving out the above alternatives) and the present appeal.  P.H. initially filed his New Jersey custody application on January 28, 2016 when the twins had been outside of the state for about two (2) weeks.  The trial court could have found jurisdiction based on the “significant connection” and “substantial evidence”.  However, with the passage of time, this totally changed.  The Order being revisited was entered in June 2017 denying L.W.’s April 2017 request to dismiss the New Jersey custody orders based on a lack of jurisdiction.  At the time it was filed, both parties had resided outside of New Jersey for almost a year and a half.  Thus, jurisdiction would not have been warranted by either the significant connection” or “substantial evidence” tests, above.

Taking it a step further to really confirm that New Jersey does not have jurisdiction, citing to N.J.S.A. 2A:34-71, the Appellate Division opined that South Dakota is a more convenient forum as compared to New Jersey.  Here, it is important to note that even if the above standards had been met (either the home state, significant connection or substantial evidence tests), New Jersey courts have the authority to decline jurisdiction if:

  1.  New Jersey is an inconvenient forum under the circumstances and
  2. Another state is a more appropriate forum.

There is no question that South Dakota was more convenient as L.W. and twins had lived there for about a year and a half when the appeal was filed.

Although the above may seem straight forward, family law cases are extremely fact sensitive and the facts here are nothing short of interesting:

Timeline of Residence in New Jersey

  • L.W. is from South Dakota and lived there when the parties met in Chicago in 2012.
  • P.H. resided in New York when the parties met.
  • L.W. became pregnant and gave birth in South Dakota in June 2013.
  • P.H. returned to New York City following the birth.
  • L.W. and the twins lived in South Dakota until 2015 with period visits from P.H. that she claims included domestic violence acts committed against her.
  • In June 2015, L.W. and the twins went to live with P.H. in New York – both in an RV on a campground and in P.H.’s apartment.
  • On July 15, 2015,  P.H. signed a lease for a house in Dumont.
  • L.W. and the twins moved into the house on July 18, 2015.
  • L.W. obtained possession of the home upon entry of a Temporary Restraining Order (“TRO”) in New Jersey on December 14, 2015, which also provided that she have custody of the twins.
  • P.H. obtained his own TRO against Defendant on January 11, 2016, also filed in New Jersey.
  • On January 13, 2016, L.W. packed her belongings for a permanent move back to South Dakota, and she provided evidence by way of her mover’s inventory that she took all of her belongings and the move was permanent.
  • On January 15, 2016, L.W. arrived in South Dakota where she continues to reside with the twins.  There was evidence that she was in Chicago on January 14, 2016 and, thus, had started her journey back to South Dakota.
  • P.H. then returned to New York shortly thereafter.
  • On January 28, 2016, the New Jersey court dismissed L.W.’s TRO against P.H. when she failed to appear for the final hearing.

Timeline of Custody Determinations in Both South Dakota and New Jersey

  • On January 28, 2016, the same date of the above TRO dismissal, P.H. filed a complaint seeking determination of paternity and custody.  P.H. failed to successfully serve L.W. at the address he sent the motion, namely her father’s home, as L.W. was living at an undisclosed residence because she did not want P.H. to know her whereabouts in light of her alleged domestic violence history.  L.W.’s father did not send her this mail until October or November 2016.  This unopposed application was the catalyst for New Jersey being declared the twins’ home state.  Of course the lack of service was not yet known to the court.
  • During the time in which P.H. filed his case in New Jersey (without L.W.’s knowledge), L.W. obtained a temporary order of protection in South Dakota on January 27, 2016 and then the final Order on March 8, 2016, which awarded her custody of the twins.
  • On March 17, 2016, the New Jersey court entered an order requiring L.W. to submit the twins to genetic testing for paternity purposes following the unopposed application.
  • On September 1, 2016, the New Jersey court ordered L.W. to bring the children to New Jersey, finding that she improperly removed the twins who had resided in New Jersey for six months.
  • On October 25, 2016, the New Jersey court again found that New Jersey was the twins’ home state because they lived here for six (6) months and ordered a bench warrant for L.W.’s arrest, as well as modified custody to grant P.H. sole legal custody of the twins to have them brought back to New Jersey to address paternity and custody issues.
  • P.H. used that New Jersey Order as support for his request that South Dakota modify its March 2016 Order granting L.W. custody of the twins.  L.W. opposed the application.  The judges of each state conferred and then South Dakota vacated the custody portion of the protective Order and ordered that L.W. comply with the New Jersey genetic testing Order, which she did.
  • On March 31, 2017, the South Dakota Court relinquished its limited jurisdiction to New Jersey.
  • In April and May 2017, L.W. unsuccessfully challenged the Orders entered in both states as to New Jersey’s jurisdiction – with New Jersey finding that jurisdiction had been decided and the family would be left without a “place to go” because South Dakota relinquished jurisdiction.  The trial court never addressed L.W.’s argument that New Jersey is an “inconvenient forum”.

With all that said, try to ensure that your children reside in the state where you want to be heard for at least six (6) months before you file for a custody determination.  That can be easier said than done.  Whether your timing is a bit off or you meet the six (6) months, do not box yourself into a corner by basing your case on only one argument in your favor – use them all.  That holds true for issues well beyond custody jurisdiction.  Happy home hunting!


Lindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Lindsay A. Heller, Associate, Fox Rothschild LLP

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