Bayville, NJ asked in Family Law for New Jersey

Q: NJ jurisdiction vs Fla jurisdiction. No one will address Family Law issues on divorce and custody

My niece has 2 children from previous marriage. Ex-husband filed divorce in Florida in 2017. She & children already lived in NJ, but Fla granted divorce & visitation agreement. NO ONE will address matters where ex husband & his attorney keep filing in Fla and demanding she respond, yet jurisdiction over children is NJ. How can Fla keep forcing NJ resident to respond with no jurisdiction? Even Fla judge said doesn't know why.

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2 Lawyer Answers
Richard Diamond
Richard Diamond
Answered
  • Millburn, NJ
  • Licensed in New Jersey

A: There are several questions presented and we have dealt with this issue on a number of occasions over the course of years.

1. At the time that father filed for divorce, if he was a resident of Florida for at least a year, he had the right to file for divorce in Florida even if your niece had already moved to NJ. Her proper recourse would have been to file an application with the Florida court, asking that it surrender jurisdiction to a NJ divorce filing since she was a resident of NJ for at least 1 year at the time of the Florida divorce filing and it was a more convenient forum for the divorce matter to occur. In that setting, even though Florida had jurisdiction and the right to continue with the divorce, if an application was made to the court at that time, the Florida court could have agreed to give up jurisdiction. My guess is that your niece did not file that application in 2017 and therefore Florida retained jurisdiction.

2. Once a court enters an order dealing with custody and parenting time, under the uniform child custody jurisdiction and enforcement act, that states court system retains control over all custody and parenting time issues unless and until neither party resides in that state and that state agrees to give up control over custody and parenting time claims to another state. So, as long as the father continues to live in Florida, Florida retains sole control over all custody and parenting time issues and another states family court system cannot enters orders - all litigation on those issues must be handled in the Florida court system.

My sense is the Florida judge handling the matter is familiar with the uniform law governing control over custody and parenting time disputes - my sense is that your niece does not understand and is having a tough time understanding how or why Florida has control over these issues when she lives in NJ.

Teresa L. Reichek
Teresa L. Reichek
Answered
  • Mount Laurel, NJ
  • Licensed in New Jersey

A: Thank you for your question. Without having all the relevant information, it sounds like NJ has never taken jurisdiction because no one has asked them to do so. A petition to transfer the case from Florida to New Jersey must be filed. Then Florida will relinquish jurisdiction. Until then they, maintain ongoing jurisdiction over the children because it was where the original action was filed.

The petition is likely to be granted because the children reside in New Jersey, and New Jersey would take over making modifications to the Florida order going forward. There is also the argument, via the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), that Florida is an inconvenient forum. The UCCJEA goes on to say that Florida retains jurisdiction UNTIL 1. the state determines that the child or the parents do not have significant connection with the state, or 2. a court of Florida or New Jersey determines that the children or the parents no longer reside in the state. That's a paraphrase, but you see the point.

The best thing your niece can do is schedule a consult with an experienced family law attorney in New Jersey so she can receive advice specific to her situation and then she can make an informed decision on how to move forward.

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