IMO Sheys and Blackburn: Can New Hampshire maintain jurisdiction over a child when it is no longer the home state?

The New Hampshire Supreme Court issued its opinion In the Matter of Mary Sheys and Eric Blackburn on July 15, 2015. 

The Facts

Mother and father married in 2005. They had two children during their marriage. When they divorced in New Hampshire in 2009, the parties agreed on a parenting plan providing mother with primary residential responsibility. Father exercised parenting time every other weekend, two afternoons per week and two weeks in the summer. In January 2013 mother told father she was relocating to Natick, Massachusetts with the children to take a new job after having been unemployed since November 2012. Mother moved the following month in February 2013. After the move, father filed in New Hampshire for primary residential responsibility and contempt. The 9th Circuit – Family Division – Manchester denied the father’s requested relief and entered a new parenting plan providing father with parenting time on alternating weekends, summers, school vacations and time in Natick as the father was available.

In December of 2013 father again asked the court to modify the parties’ parenting plan. Mother asked the court to dismiss the matter as she and the children had been residing in Massachusetts for over a year and she had already filed a motion in the Massachusetts Probate & Family Court to modify the parties’ divorce decree and parenting plan. The court granted mother’s motion to dismiss finding that it was appropriate for the court to decline continuing jurisdiction over this matter because mother and the children no longer had a significant connection with the State of New Hampshire.

The Appeal

The father appealed arguing that the trial court erred when it ruled that the children did not have a significant connection with New Hampshire

The Holding

As a matter of first impression, the New Hampshire Supreme Court held that under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) New Hampshire had continuing exclusive jurisdiction to deal with the post-divorce parenting matters. The Court agreed with the majority of jurisdictions in finding a child has a “significant connection” with New Hampshire when one parent still resides in state and exercises more than de minimis parenting time in New Hampshire. The Court noted that although the mother asked the Court to affirm on the alternative grounds of inconvenient forum, this issue was never argued and the trial court never considered it.

The Takeaway

This case provides clarification that New Hampshire will continue to hear parenting matters even after New Hampshire is no longer the “home state” of the child. The UCCJEA takes a broad view. The opinion notes that most states have determined that the “significant connection” requirement in the act can be met so long as the parent that remains in the state exercises some parenting time. For example, a Georgia court found a significant connection for parenting time that was exercised every other weekend and 8 weeks in the summer. Here, the Father exercised parenting time in New Hampshire on alternating weekends, two non-consecutive weeks in the summer, five days during April vacation in even years and five days during February vacation in odd years.

This holding may make it more difficult for a custodial parent to litigate from their new state. However, the Court left open the issue of whether New Hampshire may be an inconvenient forum under RSA 458-A:18. Custodial parents may still be able to transfer the case to their new state with an inconvenient forum argument.

 

UCCJEA Now Effective

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) went into effect on December 1, 2010 in New Hampshire. Following the lead of 46 other states, the UCCJEA replaces the old UCCJA, which is still the law in Massachusetts and Vermont. The act affects almost every case that involves parental rights and responsibilities, including divorce, parenting petitions, child abuse and neglect, guardianships of minors, termination of parental rights, and domestic violence petitions where minor children are involved.   

 

Important points about the new law:

  • Requires that once the “home state” of the child has been determined, and child custody orders have been issued, that state has “exclusive continuing jurisdiction” for so long as the child or either parent reside there.
  • Eliminates the confusing “best interests” standard included in the UCCJA, which some courts interpreted as a mandate to consider best interests factors over and above jurisdictional matters.
  • Adds enforcement tools including a role for public authorities, such as prosecutors, to enforce custody orders and the ability for the court to issue a emergency relief such as a warrant to take possession of a child should the court be concerned that the parent with control over the child may flee.

The new law brings about a slew of new and revised forms. For petitioners, forms such as a Petition for Divorce, Petition for Guardianship over Minor, or a Domestic Violence Petition have been modified to include required information. For respondents, the court has developed a separate form titled a UCCJEA Affidavit to complete in response to an initial petition.

 

Navigating the requirements of the UCCJEA can be overwhelming for those involved in cases of parenting rights and responsibilities. It is important to retain competent legal counsel to assist you. Contact Crusco Law Office, PLLC for more information.

New Hampshire's Uniform Child Custody Jurisdiction Act

Jurisdiction is the authority of a court to hear particular types of legal matters. If the court does not have jurisdiction, then it may not hear the case. In cases involving interstate custody disputes, New Hampshire has adopted the Uniform Child Custody Jurisdiction Act under NH RSA 458-A. The Act is designed to avoid competition and conflict between courts of different states. Also, it ensures that litigation over custody takes place in the jurisdiction where the child and family have the closest connection and where significant evidence is most available.

The provisions of 458-A:3 lay out the circumstances in which New Hampshire will assume jurisdiction over child custody determinations:

1.      New Hampshire is the child’s home state (1) or has been for six consecutive months before the custody proceeding starts and a parent or person acting as parent continues to live in New Hampshire.

2.      It is in the best interest of the child that New Hampshire assume jurisdiction if the child and parents or the child and at least one contestant have significant connection with New Hampshire and within the state there is substantial evidence concerning the child's present or future care, protection, training, and personal relationships.

3.      New Hampshire will assume jurisdiction if the child is physically present in this state and has been abandoned or it is necessary in an emergency to protect the child.

4.      If it appears that no other state would have jurisdiction or another state has declined to exercise jurisdiction on the ground that New Hampshire is more appropriate to determine the custody of the child, and it is in the best interest of the child then New Hampshire will assume jurisdiction.

Therefore, except in emergency/abandonment  situations or when no other state would have jurisdiction, the physical presence of the child, or of the child and one of the contestants, is not alone sufficient for New Hampshire to have jurisdiction. In other words, a parent removing a child from one state and coming to New Hampshire may not be able to immediately seek custody orders from the court.  

Other significant provisions under the Act are:

·    If at the time of filing a petition in New Hampshire there is a proceeding simultaneously pending in another state, New Hampshire will not exercise jurisdiction 458-A:6.

·    New Hampshire courts shall recognize and enforce the decree of a court of another state which had assumed jurisdiction 458-A:13.  

·    If a court in another state has made a custody decree, New Hampshire will not modify it unless: (a) it appears that the state which rendered the decree no longer has jurisdiction or has declined to assume jurisdiction and (b) New Hampshire now has jurisdiction 458-A:14.
 

 


 

[1] "Home state'' means the state where the child resides with his parent/s or a person acting as parent for at least 6 consecutive months at the time the custody proceeding starts. If the child is less than 6 months old at the time of the proceedings then “home state” means the state where the child resided for a majority of the time since birth. 

Crusco Law Office law clerk Marisa L. Ulloa contributed to this blog post.