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Hache v. Riley

Decided: August 16, 1982.


Nitto, J.s.c.


Plaintiff and defendant were divorced in Florida in 1979. The judgment of dissolution of marriage incorporated a written property settlement agreement which provided that plaintiff was to have custody of the two children born of the marriage, subject to specific visitation privileges for defendant. After the parties were divorced defendant moved to California while plaintiff and children moved to New Jersey. The parties and children have continued their residences in these respective states to date.

Defendant's most recent visitation with the children commenced on July 11, 1982, when the children arrived in California to spend approximately one month with their father. On July 28, 1982, while the children were still visiting with him, defendant filed an application for a change of custody in the California courts. Plaintiff was notified but did not appear at the California proceeding. As a result of defendant's uncontested application, the California court entered an order on August 4, 1982 which changed custody of the children from plaintiff to defendant pending a final hearing to be held on August 24, 1982. On the same day that this order was entered in California plaintiff instituted legal proceedings in New Jersey, seeking to enforce her right to custody of the children pursuant to the provisions of the parties' Florida divorce decree.

The interstate ramifications of this matter mandate that its factual circumstances be considered within the framework of the Uniform Child Custody Jurisdiction Act (UCCJA). Both California (West's Ann.Civ.Code ยงยง 5150 to 5174) and New Jersey (N.J.S.A. 2A:34-28 to 2A:34-52) have adopted the UCCJA. It is therefore this court's purpose to determine which state can properly assume jurisdiction under the UCCJA to

decide whether retention of the present custodial arrangement or a modification of that arrangement should be entered on a permanent basis.

To assist the court in reaching this resolution, a court appearance was conducted on August 13, 1982, at which time counsel for both plaintiff and defendant were present to answer several specific questions prepared by the court. Through the efforts of defendant's counsel the court also had the benefit of reviewing copies of all documents filed with the California court in relation to this custody matter.

Upon consideration of the statements made by both counsel at the court appearance and review of both the California and New Jersey pleadings, the court finds that certain factors relevant to the jurisdictional issue are not contested by the parties and should be noted before proceeding into unresolved areas. Initially, mention should be made of the fact that although the original custody decree was entered in Florida, it is clear that plaintiff, defendant and, most importantly, the children presently do not have any significant connections with Florida for purposes of a jurisdictional determination. Neither the parties nor the children have lived in Florida for some time now and neither of the parties has expressed the desire to litigate this case in Florida. It is the finding of this court that Florida no longer satisfies any of the jurisdictional prerequisites contained in the UCCJA and, as a result, cannot assume jurisdiction over this proceeding. The issue of jurisdiction is therefore limited to consideration of two alternatives, California and New Jersey.

Secondly, counsel for the plaintiff and counsel for the defendant both confirmed that plaintiff and children have resided continuously in New Jersey since August 1981. The children are currently not in New Jersey as a result of the California court order transferring their custody to defendant. Based on these facts, this court finds that New Jersey, not California, satisfies the first two provisions of the jurisdictional section of the UCCJA. New Jersey was both the home state of the children

and plaintiff at the time of the commencement of the California proceeding and had been the children's and plaintiff's home state six months before the commencement of the proceeding; the children are presently absent from New Jersey because of their retention by defendant, who is claiming their custody, while plaintiff continues to live in this State. N.J.S.A. 2A:34-31(a)(1)(i), 2A:34-31(a)(1)(ii), 2A:34-30(e).

Furthermore, this court finds that New Jersey, not California, satisfies two other provisions of the jurisdictional section of the UCCJA in that the children and plaintiff have a significant connection with this State and there is available in this State substantial evidence concerning the children's present and future care, protection, training and personal relationships. N.J.S.A. 2A:34-31(a)(2)(i), 2A:34-31(a)(2)(ii). Although there are some allegations in the California pleadings that substantial evidence and connections exist in California, the UCCJA itself specifically rejects the reasons set forth by defendant to support these claims. For example, defendant's focus on the children's actual presence in California is of little value in light of the UCCJA provision that physical presence of the children and one of the parties is alone insufficient to confer jurisdiction pursuant to the "significant connection" alternative. N.J.S.A. 2A:34-31(b). Similarly, defendant's mention of the expense of transporting the children back to New Jersey is completely undercut by the following excerpt from the official commentary to the UCCJA:

On the other hand, at the August 13, 1982 court appearance it was admitted by counsel for both parties that the children have lived in New Jersey from August 1981 to date; that they have been going to school in this State since they moved here; that the children's maternal grandparents, who allegedly have played a role in the children's upbringing for the past year, live in New ...

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