Warren Ward v. Angelete Ward (2011)

MEMORANDUM OF DECISION REGARDING PLAINTIFF'S MOTION TO DISMISS (251)

A review of the record reveals that the parties were divorced after a contested hearing before the undersigned pursuant to a memorandum of decision dated September 8, 2009.   The father was granted sole custody of the minor child and relocated to the state of Virginia.   The mother was given visitation including school vacations and long periods of time during the summer of 2010.   The parties appeared, together with counsel and the Guardian ad litem on June 22, 2011 for an evidentiary hearing regarding the plaintiff's motion to dismiss in favor of jurisdiction in New Jersey.

The court finds, proven by a fair preponderance of the evidence, the following facts:

1. The parties were divorced pursuant to a memorandum of decision dated September 8, 2009.   At the time, the defendant mother was remaining in Connecticut and the plaintiff father was relocating with the minor child to Virginia.

2. The family resided together from the date of the child's birth until October 2009 in Norwich, Connecticut.

3. The father, his new wife and the child relocated to Virginia in October 2009 and remained there until July 2010.

4. The father, his new wife and the child relocated to New Jersey in July 2010 where they presently reside.

5. The child attends school in New Jersey and sees a pediatrician, dentist, orthodontist, and therapist in New Jersey.

6. The child is well settled in New Jersey with friends and stepsisters.

7. The mother remains in Norwich.   The child has an adult brother, a half-sister and numerous aunts and cousins in Connecticut.

8. The mother has filed several motions in Connecticut including a motion to modify custody (246), motion for contempt regarding finances (247), motion to appoint Guardian ad litem (248), and motion to modify financial orders (249).   In fact, the mother seeks to change the custody from sole to joint and to relocate the child to her care in Connecticut.

9. There presently exists a custody case in New Jersey and the New Jersey court has shown no indication that it intends to defer jurisdiction to Connecticut.

10. The child has not resided in Connecticut since October 2009.

11. Given the fact that the child's educational, medical, and psychological records and primary caregivers are all in New Jersey, that state is the more convenient forum to determine these issues.

LEGAL DISCUSSION

The first inquiry is whether or not Connecticut continues to be the home state of the child pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).   It is uncontroverted that Connecticut was the home state of the child when the initial custody order was entered in 2009.   It is also uncontroverted that the child has not resided in Connecticut since that time and all of the evidence which would relate to the mother's claim that it would be in the child's best interest to relocate to Connecticut under a joint custody order is in New Jersey.

Both Connecticut and New Jersey have enacted essentially similar statutes on the question of each state's courts' jurisdiction as to custody of children and enforcement and modification of custody orders, modeled on the UCCJEA.   Both states provide that the initial state exercising jurisdiction shall under most circumstances be the “home state” of the child, defined as the state within which he had resided for the six months preceding the commencement of the litigation in which his custody is placed in issue.   Here, Connecticut is the home state.   However, both Conn. Gen.Stat. § 46b–115k(a)(4) and New Jersey's version make essentially similar provision for the home-state court to decline jurisdiction where it is found that another state may be a more appropriate forum for the exercise of that jurisdiction.   Connecticut's statute requires preliminary findings that the child and at least one parent have a significant connection with this second state, and that there is substantial evidence available in that state concerning the child's care, protection, training, and personal relationships.   The findings as to factors 2 (length of time the child has been in the remote forum) and 3 (distance) are set forth above, and there is no agreement between the parties so factor 5 is not relevant.   The financial circumstances of the parties (factor 4) favor neither;  although plaintiff earns higher income than his former wife, he has the lion's share of the burden of supporting the child.   Factor 6, which deals with the location of relevant evidence, is controlling;  with each day that passes, the evidence available here will diminish, while that available in New Jersey will increase.   Factor 7 weighs the ability of each state's courts to expeditiously resolve new disputes between the parties;  considering the difficulty, if not impossibility, of hearing the voices of the children in any parental dispute (directly, or through their guardian ad litem) if they are in one state and the court in another.   This factor, too, militates in favor of New Jersey.   The only factor favoring retention by Connecticut is number 8 (the familiarity of each state's courts with the facts and issues in the litigation).   No issue in this case to date is so complex as to beguile a judge of the state of New Jersey, so this factor does not, in the balance, offset the weight of the others.

If the issues were merely financial, the court would most likely retain jurisdiction and continue the case in Connecticut.   Since the issues involve the care, custody and access of the child whose contacts are mostly in New Jersey, this court will defer to the jurisdiction of New Jersey and grant the motion to dismiss.

Shluger, J.

Shluger, Kenneth L., J.