Ask Me Help Desk - Info on divorce preceedings

My kids and I are Florida residents,so is their father. Currently the kids and I are on vacation overseas. Is it legal to relocate to NJ from vacation with the kids and file divorce papers to my husband in Florida? Do I need my husband's consent to relocate to NJ with the kids?

Is there a reason for not returning to Florida and getting things started there before leaving ? What your planning on doing would look dim to the courts because your taking the children away from their father. You would have to answer for that in court Im sure.

You are not a resident of NJ, so you will have to file in Florida.
He will have every right to contest the move of the children (you are certainly free to go), and fight for custody/visitation.

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Originally Posted by meera maharaj

My kids and I are florida residents,so is their father. Currently the kids and I are on vacation overseas. Is it legal to relocate to NJ from vacation with the kids and file divorce papers to my husband in florida? Do I need my husband's consent to relocate to NJ with the kids?

You have to be a legal resident of a State before you can use that State as the jurisdiction in a legal matter.

If you want to relocate and then wait until you are a resident of NJ, you can do that. It's usually about 6 months.

If you don't return home with the children I'm sure the father will bring an action against you, forcing you to return them for a custody/visitation hearing.

I would return from vacation ad day or so early and move into someplace other than your home while you consult an attorney about filing for divorce.

In order to file for a divorce in New Jersey, either spouse must have been a resident of the State for at least one year prior to the filing of the action. The only exception to the one-year residency requirement is when the grounds for divorce are for adultery and it occurred within New Jersey. In that case, the requirement is that at least one spouse must be a New Jersey resident, regardless of length of time.

Also, regardless of which state it is in which the divorce case is filed, the court’s jurisdictional authority to render child custody decisions is controlled by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a law that has been enacted in both Florida and New Jersey. Under UCCJEA, only the state court of the child’s “home state” may render custody orders.

“Home state,” as defined by the UCCJEA, means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, “home state” means the state in which the child lived from birth with any of the persons mentioned. Any temporary absence of any of the mentioned persons is part of the period.

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Originally Posted by Oregon Lawyer

In order to file for a divorce in New Jersey, either spouse must have been a resident of the State for at least one year prior to the filing of the action. The only exception to the one-year residency requirement is when the grounds for divorce are for adultery and it occurred within New Jersey. In that case, the requirement is that at least one spouse must be a New Jersey resident, regardless of length of time.

Also, regardless of which state it is in which the divorce case is filed, the court's jurisdictional authority to render child custody decisions is controlled by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), a law that has been enacted in both Florida and New Jersey. Under UCCJEA, only the state court of the child's “home state” may render custody orders.

“Home state,” as defined by the UCCJEA, means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, “home state” means the state in which the child lived from birth with any of the persons mentioned. Any temporary absence of any of the mentioned persons is part of the period.

Yes. It's nice to see someone on this board who has heard of the UCCJEA.

However, in some cases a child has no home state (imagine a case of a child who has lived a little time here, a little time there, and so on). So, although you always start with home state jurisdiction to see if it exists, if it doesn't you move down the ladder to significant connection/substantial evidence jurisdiction, then to more appropriate forum jurisdiction, then to the default basis. Of course, there is always temporary emergency jurisdiction in appropriate cases. It's a hierarchy of sorts, sort of a pyramid the way the UCCJEA jurisdictional bases are laid out, where you always start at the time (with home state jurisdiction) and move downward in the analysis.

But you made a good point.

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Originally Posted by cadillac59

In some cases a child has no home state (imagine a case of a child who has lived a little time here, a little time there, and so on). So, although you always start with home state jurisdiction to see if it exists, if it doesn't you move down the ladder to significant connection/substantial evidence jurisdiction, then to more appropriate forum jurisdiction, then to the default basis. Of course, there is always temporary emergency jurisdiction in appropriate cases. It's a hierarchy of sorts, sort of a pyramid the way the UCCJEA jurisdictional bases are laid out, where you always start at the time (with home state jurisdiction) and move downward in the analysis.

Yes, points are well-taken. Best advice, as usual, is to consult with a competent attorney for case-specific analysis.

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Originally Posted by Oregon Lawyer

Yes, points are well-taken. Best advice, as usual, is to consult with a competent attorney for case-specific analysis.

You'd be surprised by the number of lawyers out there who hardly know a thing about the UCCJEA, or about UIFSA for child support jurisdiction. It's pretty shocking really.

I've had a few UCCJEA cases myself and they are kind of fun. One involved a dispute over whether Oregon or California had jurisdiction (I'm in California). It turned out that Oregon had jurisdiction over one of the kids and California over the other because the kids had been split up between the parents.

Unfortunately these cases are very expensive for the parties because they usually need lawyers in two states and you wind up often doing much of the work pro bono, at least after a while. They are interesting, however.