On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, FD-09-002094-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 31, 2012 -
Before Judges Payne and Reisner.
Plaintiff Arsha M. Knowles, pro se, appeals from an August 23, 2010 order of the Family Part dismissing her order to show cause seeking physical and legal custody of the parties' son J.S. and directing the parties to continue any further custody litigation in New York. We affirm.
The parties are not married. Their son J.S. was born in 2004. All three previously lived in New Jersey. By order dated September 2, 2008, the Family Part in New Jersey awarded plaintiff and defendant joint legal custody of J.S. and awarded plaintiff residential custody. The order also granted her permission to move to Virginia Beach, Virginia with the child. However, the parties informally made a different arrangement.
According to plaintiff's testimony at a very brief hearing before the Family Part on August 23, 2010, she and defendant agreed that the child would live with defendant, who had moved to New York, so that J.S. could attend kindergarten there. Plaintiff testified that this was to be a temporary arrangement, lasting a year, after which the son was to return to live with her. On the other hand, defendant testified that the son had been living with him in New York for the past two years. There is no dispute that plaintiff now lives in Maryland, where she attends college, and defendant lives in Staten Island, New York with their son.
Plaintiff filed this action in New Jersey because the 2008 order was entered here. However, at the August 23, 2010 hearing, the Family Part judge determined that the parties should litigate their custody dispute in the courts of New York, because the child had been living there with his father for at least the previous year. The judge also found that there was no "emergency" requiring the court's intervention. See N.J.S.A. 2A:34-68. He denied both parties' emergent orders to show cause seeking custody of the child; ordered that defendant be "designated as the parent of primary custody," but "Arsha Knowles retains her legal parental rights"; and ordered that "[the] parties can file application[s] for custody in New York." In other words, he preserved the status quo, under which the child was living with his father, without prejudice to the right of either or both parties to file a custody action in New York.
New Jersey's Uniform Child Custody Jurisdiction and Enforcement Act (NJUCCJEA or Act), N.J.S.A. 2A:34-53 to -95, provides that, even if a New Jersey court enters an initial decision on child custody, the New Jersey court will no longer have jurisdiction to make custody decisions if the child and the parents no longer live here. See Griffith v. Tressel, 394 N.J. Super. 128, 140-41 (App. Div. 2007). The NJUCCJEA is intended "to ensure that custody determinations are made in the state that can best decide the case." Id. at 138. The Act states:
a. Except as otherwise provided in section 16 of this act [2A:34-68], a court of this State that has made a child custody determination consistent with section 13 or 15 of this act [2A:34-65 or 2A:34-67] has exclusive, continuing jurisdiction over the determination until:
(1) a court of this State determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this State and that substantial evidence is no longer available in this State concerning the child's care, protection, training, and personal relationships; or
(2) a court of this State or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in this State. [N.J.S.A. 2A:34-66 (emphasis added).]
Because neither the parties nor their son live in New Jersey, and the son has lived with defendant in New York for at least the past year, we agree with the trial judge that under the NJUCCJEA, the New York courts have jurisdiction over custody issues concerning the child. Therefore, plaintiff's application was properly dismissed, without prejudice to her right to file a custody application in New York.*fn1 ...