In Orr v. Johnson, an unpublished decision (meaning not precedential), the Appellate Division reviewed a jurisdictional issue between two parents – one living in New Jersey and one living in Virginia – and whether the written agreement between them was conclusive of jurisdiction under the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”).  Because the trial court did not determine whether New Jersey was the “home state” under the UCCJEA, the Appellate Division reversed and remanded the matter.  An agreement alone is not determinative of jurisdiction under the UCCJEA.

In this case, the parties entered a Custody and Parenting Time Agreement in February 2018, which designated the father as the parent of primary residence and the mother as the parent of alternate residence, with both parties sharing joint legal custody.  The agreement also provided that “jurisdiction shall lie in the State of New Jersey” with the mother’s parenting time to be “arranged and agreed upon by both parties.”

The parties engaged in significant litigation starting in April 2018, when the father filed an emergent ex-parte application with the court, stating the mother had not returned the parties’ son after the mother’s parenting time ended eleven days prior.  In father’s application, he requested the court enforce the parties’ Custody and Parenting Time Agreement and order the mother to return their son back to New Jersey.  On April 11, 2018, the court granted father’s relief that he had primary residential custody of the child and ordered the mother to bring the child back immediately.  The court set a return date for April 18, 2018.  The mother argued that because the child was born in Virginia, received his immunizations in Virginia, was enrolled in daycare in Virginia and resided in Virginia, Virginia was the home state and not New Jersey.  She also argued that paternity was never established and the reason the parties entered in the Custody and Parenting Time Agreement was so the child’s father could “cancel a year-long care contract.”   On April 18, 2018, the court determined that New Jersey had jurisdiction and awarded the father “temporary sole, legal and physical custody.”  A paternity test was also ordered and the mother was ordered to return the child to the father.  The parties were to return for a subsequent hearing in May 2018.

In the interim, the mother filed a motion requesting to modify the court’s April 18, 2018 order and also filed an emergent application, declaring Virginia had jurisdiction and returning the parties’ son to her.  There, the mother claimed that she was forced to the sign the Custody and Parenting Time Agreement and that the father was emotionally abusive.  The mother claimed the child had spent 263 nights in Virginia as opposed to only 100 nights in New Jersey.  The mother also attempted to file a stay pending an appeal and file an application in Virginia.  The court denied the emergent application, finding that her requests could await the May 30, 2018 hearing.

On May 30, 2018, before a different Family Part judge, the court entered a paternity order between the father and the parties’ child with parenting time with the mother.  The court assumed that the prior judge based jurisdiction upon the parties’ Custody and Parenting Time Agreement.  Specifically, the court stated that whether the mother believed there was a “jurisdictional dispute”, she submitted voluntarily to New Jersey.  The court determined that the April 18, 2018 Order to be a “final order” under the UCCJEA and therefore, New Jersey had continuing and exclusive jurisdiction of the child.  The parties also attended another hearing in September 2018, where the parties were ordered to attend custody and parenting time mediation.

The mother, once again, filed an application in October 2018, seeking to modify the April 11, 2018 and April 18, 2018 Orders, to change custody, relocate to Virginia, and that New Jersey should relinquish jurisdiction as the “Agreement was not determinative of the court’s subject matter jurisdiction.”  Father opposed the application and the court heard the applications in January 2019 before a third Family Part judge.  The court found that based upon the May 30, 2018 order, the court found the child had spent significant time in New Jersey and the Agreement stated that New Jersey was the child’s home state.  The court also found that the first judge entered an order relating to custody based upon the parties’ agreement, which was neither appealed nor was relief from the order sought.  The court ordered that the parties would have joint legal and residential custody of the child and alternate parenting time month to month.

In a subsequent order, the court clarified that the parties’ agreement was being enforced and the father was deemed the “primary residential custodian of the child.”  The court found the agreement was unambiguous, that the parties voluntarily entered into the agreement, and did not find the mother’s arguments that she was coerced credible.  The mother subjected herself to the jurisdiction by raising the paternity issue, and the mother should have known an action could have been instated in New Jersey given the language of the agreement.  Under the UCCJEA, the court found that the child had not lived with either parent for six months consecutively before the New Jersey action was commenced.  Additionally, the court found that while either New Jersey or Virginia could have been deemed the child’s “home state”, based upon the intent of the parties in entering the agreement, New Jersey was the “home state” for jurisdiction.

The purpose of the UCCJEA is to avoid jurisdictional disputes in favor of cooperation between the states.  There are two parts of the UCCJEA: an initial custody determination (the first custody order) and a modification of a custody determination (any determination made subsequent to the first custody order).  Here, the issue was whether New Jersey made an initial custody determination order and providing New Jersey with subject matter jurisdiction.

To determine whether a state can make an initial custody determination, the court must evaluate what is the “home state” of the child.  A child’s “home state” is the “state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding” – this also includes a temporary absence from the state.  Once a state who has jurisdiction to make an initial custody determination enters an order, that state has continuing and exclusive jurisdiction over the matter.  However, if there is no home state, New Jersey may exercise jurisdiction if: “no other court has home-state jurisdiction, or a court with home-state jurisdiction declines to exercise it,” and two other factors are present:

(a) the child and the child’s parents, or the child and at least one parent or a person acting as a parent have a significant connection with the State other than mere physical presence; and

(b) substantial evidence is available in this State concerning the child’s care, protection, training and personal relationships.

N.J.S.A. 2A:34-65(a)(2).  Here, the trial court did not make a determination of whether New Jersey was the home state for the child.  Rather, the trial court found that either New Jersey or Virginia could be the child’s home state.  The trial court therefore relied upon the agreement between the parties to determine jurisdiction, because either state could have been the home state.

The Appellate Division found that the trial court erred in relying upon the agreement as a basis for jurisdiction.  An agreement determining jurisdiction is only a factor if a court is deciding whether to decline jurisdiction as an inconvenient forum.  The trial court could have determined New Jersey had jurisdiction based upon the significant connection and substantial evidence tests as outlined under  N.J.S.A. 2A:34-65(a)(2).  The Appellate Court reversed the May 30, 2018 Order and remanded for a hearing as to whether there was a significant connection to either New Jersey or Virginia and whether there is substantial evidence relating to the child’s care, protection, training and personal relationships in Virginia or New Jersey.

If you are experiencing a multi-state custody, or other family-related, issue Fox Rothschild has the benefit of offices throughout the country to assist in your multi-jurisdictional dispute.  We can garner the experience of these attorneys to provide you with the knowledge and support in such complex matters.  We can assist you in evaluating these jurisdictional issues prior to commencing an application and drafting an agreement relating to the care and custody of your child.


Sofia M. Ucles, Associate, Fox Rothschild LLP   Sofia M. Ucles is an attorney in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Sofia at (973) 548.3349 or