East vs West? When Child Custody Leaves The Country
By Snyder & Sarno on April 02, 2014
Child custodyis often an issue in a New Jersey divorce. The disputes involved in a child custody battle are compounded when the dispute is between the United States and another country. When this occurs, the Uniform Child Custody Jurisdiction and Enforcement Act(UCCJEA) governs the dispute. This was explored in a recent unpublished case out of the New Jersey Appellate Division, Brown v. Brown.
In this case, the mother took the parties’ child to Germany to visit her father, which the father consented to. Once there, the mother told the father that she was not returning to the US and asked him to send her the clothes she had left behind, which he did. Two years later, the German court ordered the father to pay child support to the mother and granted the mother custody of the child.
Three years later, the father filed for a New Jersey divorce and for custody of the child. The trial judge determined that it did not have jurisdiction over the custody case, meaning that it did not have the authority to make a decision about the child’s custody.
The New Jersey Appellate Division agreed. The Court acknowledged that, under the UCCJEA, it treats foreign countries as if they were one of the states in the US. However, the Court goes on to explain that the initial custody demand must be brought in a state where the child lives or resided within the six months before the action began.
Here, because the child had not resided in New Jersey in the last few years and because the father did not seek custody until the child had been out of New Jersey for a few years, New Jersey did not have jurisdiction, or the authority, to determine custody of the child.
The Court explained that if the father wanted to file for custody or parenting time, he could file with the Germany court. Further, the Court explained that the father could file, under the Hague Convention, for the return of the child to New Jersey.
Thus, as evidenced from this case, in order for the New Jersey court to make a custody determination, it must have jurisdiction over the custody issue, which in most cases can only be established if the child lived in New Jersey within the past six months. Therefore, if the child has not lived in New Jersey within the past six months, you must contest custody in the state where the child has been living or, if international child abduction issues are at play, you may be able to file for return of the child to the State under the Hague Convention.
Issues dealing with child custody are generally highly stressful and the emotions are even more complex when the dispute is overseas. When filing for custody in this situation, it is important for you to work with an experienced New Jersey divorce lawyer, who knows the UCCJEA and the Hague Convention, and will be able to assist you in obtaining custody of your child.
If you have questions about your international child custody dispute, please contact Snyder & Sarno, whose excellent attorneys have handled many cases involving this issue, at (973) 274-5200.
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