Sometimes, the location of a case – for one reason or another – can be just as important as anything else. Perhaps the law is different and more beneficial to one side in a particular location; possibly, one place is simply more convenient for purposes of introducing evidence at a trial or merely having all parties be present in court.
In my practice, I have seen this issue come up more and more. With our increasing mobility, the questions of where a case should be conducted and what court has jurisdiction has become increasingly complex. This is especially so in cases involving children who reside with the primary parent in another state from the other parent. Often, this can result in a tug of war between the courts in both states over where post-judgment issues related to the children should be addressed.
One recent case out of the trial court in Essex County squarely addressed this issue. In B.G. v. L.H., the parties were divorced in New Jersey, but had specifically agreed when they divorced that the mother and children could relocate to Massachusetts, which they did. The agreement also called for a parenting time schedule which afforded the father parenting time in Massachusetts and in New Jersey, which he exercised. Significantly, the agreement did address the question of jurisdiction quite clearly, stating:
Each of the parties hereby irrevocably consents and submits to the jurisdiction of the courts of the State of New Jersey for any future custody and parenting time disputes, so long as one parent resides in New Jersey.
After the wife and children relocated to Massachusetts, the husband continued to reside in New Jersey and, as noted above, to exercise parenting time with the children in New Jersey. Eventually, issues arose regarding the children and their time with their father. This included two complaints to the Massachusetts Department of Children and Family by one child’s teacher and the other child’s doctor. The Massachusetts DCF conducted an investigation and concluded that the allegations were unsubstantiated. However, this prompted the Mother to institute proceedings regarding custody and parenting time in the Probate and Family Court for the Commonwealth of Massachusetts.
And so the basic question arose: Should the custody and parenting time issues that arose be decided by a Massachusetts Court, or a New Jersey Court? In this particular case, the answer may seem obvious. The parties agreed, “irrevocably,” that as long as either of them resided in New Jersey, the courts of the State of New Jersey would have jurisdiction over custody and parenting time disputes. It was not disputed that the Father continued to reside in New Jersey. Therefore, based on their agreement, it would seem that New Jersey should continue to have jurisdiction over custody and parenting time issues.
However, the trial court judge went further and conducted an analysis of the issue as though there was no provision in the parties’ Matrimonial Settlement Agreement which addressed this issue. This is because only the Court can determine if it should relinquish jurisdiction, even where an agreement exists (although the existence of an agreement is an important factor the court must consider, as discussed below). Judge Passamano’s opinion provides a good overview of how the question of jurisdiction over custody and parenting time issues should be addressed under New Jersey’s Uniform Child Custody Jurisdiction and Enforcement Act (NJUCCJEA):
- Did New Jersey acquire continuing, exclusive jurisdiction over child custody issues?
- If so, have circumstances changed so as to divest New Jersey of continuing, exclusive jurisdiction?
- And, if circumstances have not changed, then is New Jersey no longer a convenient forum to decide these issues, and is the other state the appropriate forum?
Notably, this procedure prevents a party from doing what the Mother in B.G. v. L.H. tried to do – simply filing an application to modify custody/parenting time in another state’s court. The state court which originally had jurisdiction must conduct this analysis and affirmatively relinquish its jurisdiction.
Part 1: Continuing and Exclusive Jurisdiction
Generally speaking, a Court acquires continuing and exclusive jurisdiction as to custody issues when it makes an initial custody determination, or when it modifies a custody determination made by another state as authorized by law. In B.G. v. L.H., the initial custody determination was made in New Jersey, by a New Jersey Court. Therefore, the Court proceeded to the next question.
Part 2: Change of Circumstances
According to the NJUCCJEA, circumstances will have changed so as to divest New Jersey of jurisdiction when either of the following occur.
- A NJ court 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 New Jersey and that substantial evidence is no longer available in New Jersey concerning the child’s care, protection, training, and personal relationships; or
- A court of NJ or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in New Jersey
The question of whether there is a significant connection with the state cannot merely be based on whether one party continues to reside in NJ. Instead, it goes to the relationship between the child and the parent that remains in NJ. This is where the distinction between what the parties in B.G. v. L.H. contracted for and what the law dictates lies. The agreement between the parties called merely for the continued residency of one parent in New Jersey, but absent an agreement, the Court must look deeper at the relationship between the parent and the child. The judge in B.G. v. L.H. opined that, since the children in that case exercised parenting time with the Father in NJ, there existed the requisite significant connection in any event.
Part 3: Which is the Convenient Forum?
Having decided in favor of New Jersey on the first to issues, a New Jersey Court can still determine that it should relinquish jurisdiction if it finds that it is not a convenient forum, AND that the other state is the appropriate forum. Pursuant to N.J.S.A. 2A:34-71(b), the factors that the Court considers in answering this question are:
- Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
- The length of time the child has resided outside of the State;
- The distance between the court in this State and the court in the state that would assume jurisdiction;
- The relative financial circumstances of the parties;
- Any agreement of the parties as to which state should assume jurisdiction;
- The nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;
- The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
- The familiarity of the court of each state with the facts and issues of the pending litigation.
Again, in B.G. v. L.H., Factor 5 makes it impossible to ignore the fact that the parties explicitly, knowingly, and voluntarily, entered into an agreement that New Jersey would continue to have jurisdiction over custody and parenting time disputes so long as either of the parents (obviously, the Father in this case) merely resided in New Jersey. Although the Court must give some due consideration to the other factors, so long as the best interests of the children – which must always be paramount – are not deleteriously affected by jurisdiction remaining in New Jersey, it would be hard to argue that there should be any other result in the face of such clear cut language in the agreement.
The B.G. v. L.H. case provides a good lesson to practitioners about the importance of addressing this issue in agreements, especially if one parent’s relocation to another state may be on the horizon. If you are on the side of the potentially relocating custodial parent, know that a provision like the one the parties entered into in this case may make it more difficult for your client in the event he or she wants New Jersey to relinquish jurisdiction. By the same token, if you represent a party who may eventually be defending against an attempt to remove jurisdiction to another state, language like that included in the agreement in B.G. v. L.H. will be helpful to your client.