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.

Uniform Child Custody Jurisdiction Enforcement Act comes to NH in December 2010

New Hampshire has recently taken steps to protect parents and children from cross border kidnapping by adopting the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA, drafted by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in 1997, becomes effective in New Hampshire on December 1, 2010. Vermont and Massachusetts remain the only states that have not adopted the UCCJEA.

Prior to NH’s adoption of the UCCJEA, we were operating under the umbrella of its predecessor, the Uniform Child Custody Jurisdiction Act (UCCJA) which had been adopted in all 50 states. The UCCJA, which was written in 1968, contained broad and sometimes vague language that allowed for courts in different jurisdictions to interpret the statute differently. These difficulties were further complicated by the passage of the Parental Kidnapping Prevention Act (PKPA) in 1980 that tangled with the UCCJA in determining jurisdiction for initial custody disputes. Complications arose between states in determining a child’s “home state” and enforcing judgments across state lines, with PKPA and UCCJA having differing standards for determining what custody determination were to be given “full faith and credit” between states. The drafting and passage of the UCCJEA cleans up these conflicts and puts these statutes in order.

Exclusive continuing jurisdiction

 

Under the UCCJEA, once the “home state” of the child has been determined (home state is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding), and child custody orders have been issued, that state has “exclusive continuing jurisdiction” that is entitled to full faith and credit across the country. This prevents other jurisdictions from modifying that order in any way, unless and until the original state has relinquished jurisdiction. This is a large step forward from UCCJA, where different interpretations caused conflicting orders and simultaneous proceedings.

 

Best interests, jurisdiction and the substantive merits

 

Additionally, while the UCCJA was designed to promote “best interest of the child” over whom custody was at issue, including the “best interests” was interpreted by some courts as an summons decide the merits of custody dispute while determining jurisdiction, or even that “best interests” should override jurisdiction considerations That was not the drafter’s intention and as such, the UCCJEA eliminates the term “best interests” so that the jurisdictional issues are clearly separated from the merits of the custody dispute.

 

Enforcement

 

The UCCJEA also sets out a unified system of enforcement mechanisms which were lacking under old law. Under UCCJA, enforcement evolved differently among the states, with, for example, one state requiring a Motion to Enforce or a Motion for Full Faith and Credit to initiate enforcement proceedings, while another required a writ of habeas corpus or a Citation for Contempt. These differences in enforcement resulted in increased cost, decreased certainty in outcome, and long and drawn out enforcement proceedings, allowing one parent to hold on to custody far longer than they should otherwise be able to. In addition to unifying the process, the UCCJEA now provides specific remedies for enforcement including:

 

1)      Procedure for registering a custody determination with another state to allow a party to predetermine whether a custody determination will be recognized in another state,

2)      A swift habeas corpus type remedy for immediate review of custody violations or disputes to allow parents to maintain their awarded visitation or parenting time,

3)      Extraordinary remedy – meaning if the enforcing court is concerned that the parent, who has physical custody of the child, will flee or harm the child, a warrant to take physical possession of the child is available, and

4)      There is now a role for public authorities, such as prosecutors, in the enforcement process. 

 

As to the role of public authorities in the enforcement of custody orders, the Prefatory Note to the UCCJEA states:

If the parties know that public authorities and law enforcement officers are available to help in securing compliance with custody determinations, the parties may be deterred from interfering with the exercise of rights established by court order. The involvement of public authorities will also prove more effective in remedying violations of custody determinations. Most parties do not have the resources to enforce a custody determination in another jurisdiction. The availability of the public authorities as an enforcement agency will help ensure that this remedy can be made available regardless of income level. In addition, the public authorities may have resources to draw on that are unavailable to the average litigant.

These changes will be welcome, both among attorneys and parents, as they now bring a level of certainty to parenting rights and responsibility determinations within New Hampshire and throughout the Country.  It is unfortunate, however, that the only two states yet to adopt the UCCJEA happen to be two of the three states with which we share a border, Massachusetts and Vermont. With any luck, they will follow suit shortly.

 

Crusco Law Office Law Clerk Daniel McLaughlin, contributed to this post.