Jurisdiction of Custody Disputes After Inter-State Relocation
By Snyder & Sarno on September 24, 2013
When a custodial parent wishes to relocate to another state, a court is often asked to decide whether the children should be allowed to go with that parent. A recent Appellate Division case deals with that issue but with a new twist--which state has jurisdiction over the custody issues, including the issue of relocation?
In Giorgianni v. Giorgianni, the parties, who had lived together in South Carolina, engaged in divorce proceedings in that state. Then, Mrs. Giorgianni, known as Ms. Howard after the divorce, relocated with the parties’ child to New Jersey, which is where both the parents were from and where both sets of grandparents lived. After the relocation, Mr. Giorgianni, who continued to live in South Carolina,filed for divorce in New Jersey. However, the New Jersey and South Carolina courts determined that South Carolina would retain jurisdiction over the case. Later, Mr. Giorgianni moved to New Jersey, but the parties obtained a divorce in South Carolina and entered into an agreement under which Ms. Howard was granted sole legal and physical custody of the parties’ child. Seven months later, Mr. Giorgianni requested to have jurisdiction of the custody issues transferred to New Jersey. The trial court denied his request.
On appeal, the Appellate Division cited to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), holding that “‘exclusive, continuing jurisdiction’ continues in the State that made the initial custody determination until ‘a court of this State or a court of another state determines that neither the child, nor a parent . . . resides in this State.’” The Appellate Division found that at the time Mr. Giorgianni requested transfer of jurisdiction, Ms. Howard and the child had been living in New Jersey for over two years and Mr. Giorgianni had been living in New Jersey for over one year. The Appellate Division also found that because the parties had already obtained a divorce and resolved the custody dispute in South Carolina, there was not the issue of Mr. Giorgianni attempting to transfer jurisdiction in order to resolve the matter in a more favorable forum. Based on these two reasons, the Appellate Division reversed the lower court and allowed transfer of the custody issues to New Jersey.
Giorgianni is a good reminder that the UCCJEA governs custody disputes between states and has specific rules for establishing jurisdiction of custody issues. Generally, the child’s home state has jurisdiction over the custody issue. The UCCJEA says that “this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State.” Thus, in Giorgianni, because the proceeding commenced while the child resided in South Carolina, that state was the home state. Generally, under the UCCJEA, the state that has jurisdiction in the original proceeding maintains exclusive and continuing jurisdiction. However, as the Appellate Division stated in Giorgianni, the UCCJEA provides that once neither of the parties nor the children reside in that state, it no longer has exclusive and continuing jurisdiction.
If you have questions about which state should have jurisdiction over your New Jersey divorce or your custody dispute, please contact the experienced New Jersey divorce lawyers at Snyder &Sarno at (973) 274-5200.
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