Dalessio v. GallagherDalessio v. Gallagher
Stephanie Ann Mitterhoff, Scotch Plains, argued the cause for respondent (Bramnick, Rodriguez, Mitterhoff, Grabas & Woodruff, attorneys; Ms. Mitterhoff, on the brief).
The opinion of the court was delivered by
SKILLMAN, P.J.A.D.
This appeal requires us to interpret the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA),
Defendant Robert Jacobs is a lifelong resident of the State of Washington. Defendant Amanda Gallagher moved from New Jersey to Washington in the middle of 2007 and soon thereafter began a romantic relationship with Jacobs. This relationship resulted in the conception of a child, who was born in Washington in June 2008.
The parties had a tumultuous relationship, which resulted in them filing domestic violence complaints against each other in Washington. There is no need to describe those proceedings except insofar as they relate to custody of their child.
On March 5, 2009, Jacobs filed a petition for a parenting plan in the Superior Court of Washington. That same day, the court entered an order restraining Gallagher from removing the parties’ child from Washington. Thereafter, the court entered an order for a temporary parenting plan providing for custody and parenting time with the child.
Within a short time after entry of this order, Jacobs and Gallagher reconciled, and on April 20, 2009, the Washington Superior Court dismissed the temporary parenting plan without prejudice. However, less than a month later, on May 17, 2009, Gallagher left Washington with the parties’ child without Jacobs‘s consent and moved back to New Jersey.
The day after she arrived in New Jersey, Gallagher filed a domestic violence complaint against Jacobs which, among other things, sought temporary custody of the child.
Two days later, on May 20, 2009, Jacobs moved in Washington Superior Court for an order reinstating the temporary parenting plan he had voluntarily dismissed when he and Gallagher reconciled. The Washington court denied Jacobs‘s motion and directed him to file a petition for a new plan. On June 15, 2009, Jacobs filed a petition in Washington for a new parenting plan.
Meanwhile, back in New Jersey, Gallagher‘s mother and sister, plaintiffs Debra and Amy Dalessio, filed this action against
On June 9, 2009, the Family Part, invoking emergency jurisdiction, entered an order granting temporary custody of the child to the Dalessios, with Gallagher‘s consent, but over Jacobs‘s objection. Although the court subsequently determined that the domestic violence complaint Gallagher filed against Jacobs in New Jersey had not been substantiated, the order granting the Dalessios temporary custody of the child was continued in effect pending a determination of the issue of jurisdiction.
On September 3, 2009, the Family Part judge conducted a telephone conference with a commissioner of the Washington Superior Court, which confirmed that Jacobs had filed a petition for a new parenting plan that was currently pending in Washington.
After full briefing and argument, the Family Part judge issued a comprehensive written opinion, which determined that Washington has exclusive jurisdiction under the UCCJEA to determine custody of the parties’ child and that the Dalessios’ complaint should be dismissed. Nevertheless, the order continued temporary custody of the child with the Dalessios under the emergency jurisdiction provision of the UCCJEA, pending further action by the Washington Superior Court.
Gallagher filed a notice of appeal from this order1 and a motion for stay pending appeal, which was denied by both the trial court and this court.2
This appeal is governed by the UCCJEA, which was adopted by New Jersey in 2004 and by Washington in 2001, see Table of Jurisdictions Wherein Act Has Been Adopted (preceding
One of the primary objectives of the UCCJEA was to “prioritize[ ] home state jurisdiction” over other bases for a state assuming jurisdiction of a child custody dispute. UCCJEA, Prefatory Note, 9 (Part IA) U.L.A. 651 (1999); see also id. § 201 cmts. 1 & 2, at 672. This objective was noted in the sponsor‘s statement to the legislation by which New Jersey adopted the UCCJEA. S. Judiciary Comm., Statement to Senate Committee Substitute for Senate Bill No. 150 (2004). (“[The UCCJEA] gives priority to the home state as a ground for taking jurisdiction.“) (reprinted following
a. ... [A] court of this State has jurisdiction to make an initial child custody determination only if:
(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;
(2) a court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction ... and:
(a) the child and the child‘s parents, or the child and at least one parent... have a significant connection with this State other than mere physical presence; and
(b) substantial evidence is available in this State concerning the child‘s care, protection, training and personal relationships[.]
....
b. Subsection a. of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this State.
[
N.J.S.A. 2A:34-65 ;Wash. Rev.Code § 26.27.201 .]
Thus, unless the home state declines jurisdiction, a New Jersey court cannot assume “significant connection” jurisdiction over an initial child custody determination under
Nevertheless, Gallagher argues that Washington also was not the child‘s “home state” under this definition because, having been in New Jersey for twenty-three days when this action was brought, the child had not lived with Jacobs in Washington for at least six consecutive months “immediately before” commencement of this action. Consequently, according to this argument, the jurisdiction to determine custody of the child can be assumed by the New Jersey courts under
We reject this argument because it would effectively read one of the predicates for home state jurisdiction under
This conclusion is supported by decisions in other jurisdictions that have interpreted their analogues to
Considerable confusion has arisen in this matter regarding how to analyze the children‘s “home state” for purposes of determining jurisdiction. Such confusion seems understandable in light of the apparent contradictory language set forth in the Montana statutes. [Montana‘s version of
N.J.S.A. 2A:34-65(a)(1) ] provides that Montana has jurisdiction to make an initial child custody determination if it is the child‘s home state “within six months before” the commencement of the child custody proceeding. By contrast, “home state” as defined under [Montana‘s version ofN.J.S.A. 2A:34-54 ] requires a child to have lived in Montana for “at least 6 consecutive months immediately before the commencement of a child custody proceeding.”....
The drafters intended that the UCCJEA should be construed to promote one of its primary purposes of avoiding the jurisdictional competition and conflict that flows from hearings in competing states when each state substantively reviews subjective factors, such as “best interest,” for purposes of determining initial jurisdiction. We thus resolve any statutory conflict in the application of home state jurisdiction in a manner consistent with the UCCJEA‘s intent of strengthening the certainty of home state jurisdiction.
As a result, we hold that “home state” for purposes of determining initial jurisdiction under [Montana‘s version of
N.J.S.A. 2A:34-65(a)(1) ] is not limited to the time period of “6 consecutive months immediately before the commencement of a child custody proceeding.” The applicabletime period to determine “home state” in such circumstances should be “within 6 months before the commencement of the [child custody] proceeding.” This interpretation promotes the priority of home state jurisdiction that the drafters of the UCCJEA specifically intended. [128 P.3d at 1028-29 (citation omitted).]
Applying the same reasoning to this case, we conclude that Washington has exclusive jurisdiction to determine the custody dispute over the parties’ child because it was “the home state of the child within six months before the commencement of the [custody proceedings in both Washington and New Jersey] and the child is absent from [Washington] but a parent [Jacobs] ... continues to live in [Washington].”
Gallagher relies heavily upon our decisions in Bless v. Bless, 318 N.J.Super. 90, 723 A.2d 67 (App.Div.1998), and Ganz v. Rust, 299 N.J.Super. 324, 690 A.2d 1113 (App.Div.1997). However, Bless and Ganz were both decided under the UCCJA, which was superseded by the provisions of the UCCJEA, particularly
Our conclusion that Washington has exclusive home state jurisdiction to determine the dispute concerning the custody of the parties’ child makes it unnecessary to consider the parties’ other arguments.
Affirmed.