Jurisdiction Over Interference With Custody

Taking and concealing a child has been taken and concealed from the other parent, caretaker or agency with authority is a crime in New Jersey. If the concealing is for the purpose of protecting the child or protecting the parent taking the child, filing a custody proceeding can be a defense to criminal prosecution. It depends on the facts of the case.

Absent an emergency circumstance, courts may not make a custody decision if that court is not in the child’s home state. In simple terms, “home state” is where the child has resided with a parent or caretaker for six consecutive months preceding the action or the jurisdiction where the child has most significant contacts. If the child or parent is at imminent risk of harm from the other parent, an out-of-state court may take limited jurisdiction for the purpose of protection of parent and child, but the case will ultimately be decided in the home state of the child. The custody proceeding may also be filed as an interstate action and, sometimes, must be filed as an interstate action.

There was a time when states had different and conflicting rules on what court had authority to make determinations in custody proceedings, resulting in different custody orders in different jurisdiction for the same child. It was a complete nightmare. Even after efforts to make a uniform set of rules for all states for custody nationwide, the Uniform Child Custody Jurisdiction Act (UCCJA), there were still inconsistencies, and all states did not accept the UCCJA.

The next attempt to cure the inconsistencies in custody jurisdiction between states was a federal effort at conformity, the Parental Kidnapping Protection Act (PKPA). Among other things, the PKPA established home state jurisdiction as the standard to be used nationwide. Because federal law trumps state law, the PKPA continued things in the right direction, but surely did not cure all the problems. Home state jurisdiction, as defined above, eliminated one parent moving the child out of state and getting the new state to make a new custody order with different results than an existing order.

The most recent set of rules with a goal of consistent custody jurisdiction between states, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), came about at approximately the same time that the PKPA took effect on a federal basis. Most all states have now accepted the UCCJEA. For interstate custody disputes and for questions of jurisdiction between states, the UCCJEA is used, together with any portions of the PKPA that trump it.

Part of the UCCJEA requires courts in different jurisdictions to contact each other to determine which court has proper jurisdiction, with the courts putting any pending case on hold until that determination is made. In addition, the UCCJEA acted to cure the problem of jurisdiction over a child less than six months old. There are still circumstances that do not give clear jurisdiction on infants under six months, for example if the child has moved during that six months or the child happens to have been born outside of the home state. But as a whole, the UCCJEA is a vast improvement over the UCCJA, and the enforcement portion of it has been a very beneficial addition.

The UCCJA has not cured all problems. Sometimes, a court may be unwilling to forfeit jurisdiction to the proper court or emergency jurisdiction can be improperly taken, among other things. Though, overall, the UCCJEA has been a boon to eliminate jurisdictional problems and provide consistent treatment in interstate custody proceedings.

If you need to discuss the interference with custody or interstate custody, call the Law Offices of Peter Van Aulen for a free initial consultation at 201-845-7400.