I just moved to a new state – where should I file a custody application?

family relocating out of state and moving into a new house

According to Forbes, New Jersey was among the top 5 most expensive states to reside in 2022. For that reason, it is not uncommon for individuals to make the economic decision to relocate out of New Jersey after a divorce. However, when children are involved, it is important to know which state has jurisdiction over custody issues should they arise following one’s relocation out of the state.

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), which has been adopted in every state except Massachusetts, governs the determination of jurisdiction over custody disputes between states. New Jersey adopted the UCCJEA in 2004 as codified in N.J.S.A. 2A:34-65. The purpose of the UCCJEA is to prevent “jurisdictional competition and conflict and require cooperation with courts of other states as necessary to ensure that custody determinations are made in the state that can best decide the case.” Griffith v. Tressel, 394 N.J. Super. 128, 138 (App. Div. 2007).

The UCCJEA is broken down into three separate categories: (1) an initial custody determination; (2) modification of a custody determination made by another state; and (3) temporary emergency jurisdiction. N.J.S.A. 2A:34-65-68.

Consider the following scenario:

Parties to a marriage file for divorce in New Jersey, and there is one child born of said marriage. At the conclusion of the parties’ divorce proceedings, a New Jersey Court enters a Final Judgment of Divorce granting Parent A and Parent B joint legal and physical custody of Child. Five and a half months later, Parent A relocates to Florida with Child and files a custody modification application in a Florida Court seeking sole legal and physical custody of Child.

  • Initial custody determination. The UCCJEA defines a child custody determination as a “judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to a child.” N.J.S.A. 2A:34-54. In the above scenario, assuming that no other Court Order has been entered to establish custody, the Final Judgment of Divorce would be considered an initial child custody determination. However, a state can only make an initial child custody determination if the state was the “home state” of the child for at least six consecutive months before a child custody proceeding, absent other exceptions. Importantly, New Jersey case law regards the six-month rule as a “bright line rule” which means that a child must reside in a state for no less than six months or more to be the home state; being “close to” the six-month mark will not suffice.
  • Modification (and emergency). In the above scenario, it is improper for Parent A to file an application in Florida because the child has not resided in Florida for at least six consecutive months, and thus, absent an emergency, Florida does not have jurisdiction over the matter and cannot modify the custody determination made in New Jersey. That is, even though Parent A and Child have not resided in New Jersey for the past five and a half months, New Jersey is still considered the “home state” of Child because it has not been at least six months. Therefore New Jersey would have exclusive, continuing jurisdiction until a New Jersey Court determined that it no longer had jurisdiction. Only after a New Jersey Court determined that it no longer had jurisdiction would Florida be able to modify the custody arrangement in place.

Before a parent files a custody application, it is important to know which state has jurisdiction, and where to file. With offices in Somerville, Morristown, and Freehold, the experienced family law attorneys at Lyons & Associates, P.C. can help you answer that question. To schedule a free consultation, call our office at (908) 575-9777 or contact us online.