United States: Appellate Division Finds That Trial Court Erred In Divesting New Jersey Of Jurisdiction Over Custody And Parenting Time Issues

Last Updated: February 27 2014
Article by Robert A. Epstein

Decisions involving New Jersey's Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA) are often very complicated matters that require courts to undertake an extremely detailed, fact-specific analysis to ensure that the issue of jurisdiction – what state or country should hear the matter – is properly made.  As a result, before you review this blog post discussing S.B. v. G.M.B., the Appellate Division's recently published (precedential) decision that I have broken down below, you may want to sit down and relax with a cup of coffee, and perhaps some Tylenol in case your head starts spinning.

Here are the pertinent facts that you need to know:

  • In May, 2011, wife obtained a final restraining order against husband.  Husband pleaded guilty to a third degree offense as to the event that gave rise to the FRO and, in July, 2012, he began a 3 year probationary term.
  • Shortly before the probationary period began, the parties were divorced, incorporating a settlement agreement into a dual judgment of divorce.
  • 4 children were born of the marriage.  The PSA stated that wife could remove the children from New Jersey to Ontario, Canada.  Husband's consent to such removal was expressly conditioned on wife's "express[ed] and irrevocabl[e] consent[]" that, until the youngest child was emancipated, New Jersey would retain continuing, exclusive jurisdiction over all matters pertaining to child custody, child support, and parenting time.
  • Wife also agreed that any orders regarding custody, support or parenting time entered by New Jersey courts would "supersede any such orders entered in Canada", that by entering into the settlement agreement, she "expressly and irrevocably assent[ed] and submit[ted]" to personal jurisdiction in New Jersey courts, that she "irrevocably consent[ed]" to receiving service of any pleadings at her residence in Canada, and that she "expressly and irrevocably waive[d] any claim or defense of improper service, lack of personal jurisdiction, improper venue or forum non conveniens or any similar basis."
  • Wife moved with the kids to Canada in August, 2012.
  • In mid-September, 2012 (merely 4 months after execution of the settlement agreement), husband filed a motion asserting that wife had failed to provide him with parenting time over the Labor Day weekend.
  • In addressing the motion, the trial judge indicated that he would "sua sponte [consider] whether Ontario was a more appropriate forum under relevant statute and case law.  Upon such consideration, the trial judge determined that New Jersey was an "inconvenient forum" and that Ontario should exercise jurisdiction.
  • Husband argued in seeking enforcement of the agreement's parenting time provisions that Canada as the location for the exercise of some of his parenting time was no longer feasible because his criminal conviction barred his entry into Canada.  In fact, the settlement agreement provided,
  • "If, for any reason, the Husband is refused entry into Canada and prevented from exercising the parenting time set forth in subparagraphs (h) through (j) above, the parties shall agree on reasonable equivalent parenting time for the Husband at an agreed upon location in the United States.  The parties reserve the right to apply to the [c]ourt for a determination of this issue in the event that they cannot reach an agreement."
  • As a result, husband sought wife to bring the children to Cortland, New York (approximately half way between the parties' respective residences) for his parenting time as delineated in the settlement agreement.
  • While wife opposed the motion, she did not argue that Canada assume jurisdiction over the matter – the issue was raised and determined by the trial judge, who rendered such determination without a hearing.

On appeal, the Appellate Division analyzed the matter in connection with New Jersey's Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA):

  • New Jersey acquired "exclusive, continuing jurisdiction" over custody determinations when the initial order was entered because the parties and children resided in New Jersey when the judgment defining custody and parenting issues was entered by the trial court.
  • New Jersey did not lose jurisdiction based on a lack of a "significant connection" or "substantial evidence".  The move to Canada occurred only a few months before the agreement was signed, and husband remained a New Jersey resident and was still entitled to meaningful parenting time with the children in this State.
  • Based on the record below, Canada was not "an appropriate forum," let alone "a more appropriate forum," in part, because husband was denied entry into Canada because of his criminal record, where the trial court's determination that Canada could permit his entry ran directly contrary to husband's allegations.  Unlike the trial court, the Appellate Division did not believe that entry into Canada was as "readily available" as suggested by the trial court, recognized that husband would have to undergo an application process for Canada to consider such entry, and noted that Canada could still deny entry.  "By the same token, it is premature to assume he will be permitted entry."
  • The Appellate Division further took the trial court to task for its unsupported indication that, even if husband was denied entry, he could appear at Canadian proceedings by video conference.  The trial court, thus, concluded that the husband's physical presence at a proceeding in New Jersey was less appropriate than his video appearance at a Canadian proceeding.  The trial court also seemingly disregarded the indication of husband's probation officer that someone in husband's situation would normally be barred from leaving the United States (although it was noted that a court could allow him to leave for the purpose of appearing in a foreign court).  The Court definitively provided:

"We find the trial judge's declination of jurisdiction to be highly inequitable because it relegates [husband] to an attempt to litigate his parenting-time issues in a forum that may not be accessible, instead of in a jurisdiction the parties expressly and unequivocally stipulated as the forum for such disputes – a forum that unquestionably possesses jurisdiction over the disputes.  Because Canada has not been shown to be an 'appropriate' forum, we reverse."

While this component of its decision was enough for the Court, it then added that, even if Canada was an appropriate forum, it was improper for New Jersey to decline jurisdiction.  In so doing, the Appellate Division analyzed the 8 factors to address such issue under the UCCJEA:

  1. Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child:  Here, wife had an FRO and husband was serving a probationary term in New Jersey, stemming from the same incident.  The Court concluded that the trial judge gave no weight to the fact that wife stipulated to a New Jersey forum after entry of the FRO, after husband pleaded guilty, after wife planned to move to Canada, and that no other episodes of domestic violence had occurred since the first FRO was granted.
  2. Length of time the children have resided outside of New Jersey:  Wife and children lived in New Jersey throughout the marriage, and the move to Canada only occurred one month prior to the husband filing the motion at issue.  The Court concluded that the trial judge mistakenly converted the second factor into the sixth factor (addressing the children's present circumstances, and the location of evidence and witnesses to address the issue).  Since only a month had passed from when the children moved to when the motion was filed, the Appellate Division held, "This factor highly favors New Jersey's retention of jurisdiction."
  3. Distance between the New Jersey court and the court in the location that would assume jurisdiction:  Similar to factor 2, the trial court improperly considered this factor 6 as to the location of evidence and witnesses.  Analyzing this factor, the Court concluded that Canada was more convenient for wife and New jersey was more convenient for husband.
  4. The relative financial circumstances of the parties:  Wife was in a financially inferior position to husband and, as a result, this factor properly favored the Canadian forum.
  5. Any agreement of the parties as to which state should assume jurisdiction:  The parties agreed in the settlement agreement that New Jersey would retain jurisdiction, and that this agreement was made in exchange for the husband's agreement that the wife could move to Canada with the children.  The Appellate Division, in contrast to the trial court, gave far greater weight to this factor and circumstance, finding that "The judge was greatly mistaken in this regard."
  6. Nature and location of the evidence required to resolve the pending litigation, including the testimony of the children:  While the trial judge focused on the lack of accessibility/availability of evidence and witnesses in Canada, the Appellate Court found that the judge "overlooked" that the dispute concerned an alternative to the agreement's indication that husband had a right to parenting time at certain times in Canada.  The Court concluded that the issue was simply how could the "parenting time precluded by [husband's] ostensible inability to enter Canada be equitably replaced?"  The Court further questioned what evidence in Canada was necessary to address the issue, or if a hearing was even necessary (and, if a hearing was necessary, an analysis of difficulties a Canadian court would encounter as to examining New Jersey evidence would be required).  Ultimately the Court determined that this factor favored New Jersey because both locations had similar issues, but the children had spent their entire lives (prior to the recent move) in New Jersey.
  7. The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence:  While the trial judge noted that both courts address such issues in an expeditious manner, the Canadian court would face potential additional hurdles due to the above-issues with husband's entry into the country.  The potential additional litigation would only prolong the process.
  8. The familiarity of the court of each state with the facts and issues of the pending litigation:  No Canadian court was familiar with the case, and the New Jersey court certainly was in having presided over the domestic violence matter and uncontested hearing.

In finding that New Jersey should not decline jurisdiction, the Appellate Division concluded:

Those statutory factors that may suggest New Jersey's declination of jurisdiction or are in equipoise represent only the foreseeable consequences of the parties' free and voluntary agreement and should not have more weight than the agreement itself.  When viewed in that context, there are very little, if any, arguable reasons for New Jersey's declination of jurisdiction at this time.

Interestingly, in reversing the trial court's decision and directing the trial court to expeditiously resolve the parenting time issues, the Appellate Division exercised original jurisdiction, "Because of the time that has elapsed since the order was entered," and, in so doing, directed that, pending the trial court hearing from the parties on such issues, any future visitation pursuant to certain provisions of the settlement agreement occur in Niagara Falls, New York, or any other location to which the parties agreed.

Cases involving the UCCJEA are typically very fact specific and, as a result, the analysis can become quite complicated to ensure that the issue of jurisdiction is properly decided.  As a litigant, be sure to navigate through these waters with matrimonial counsel experienced in such issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Robert A. Epstein
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