NJ & CT News

NEW JERSEY

State Must Decide Children's State of Residence

In a visitation rights case pitting a South Carolina mother against a New Jersey father, New Jersey's Appellate Division recently reversed a lower court order requiring the mother to return the children to New Jersey to visit their father. The reason: It appeared the children had been living in South Carolina for a long enough period of time that South Carolina might have become their state of habitual residence. If this was indeed the case, said the appeals court, New Jersey would lack jurisdiction over the matter.

The two minor children at issue in Horton v. Horton, 2012 N.J. Super. Unpub. LEXIS 2818 (2012), were born in New Jersey and resided there at least until their parents' divorce in November 2008. In the judgment of divorce, the father granted his consent for the children to move with their mother to South Carolina, with the proviso that the father should be able to obtain “reasonable visitation” with them upon giving at least 48 hours' notice. However, since their move out of state, the father claimed he had been thwarted in his attempts to visit with the children and to speak to them by telephone. Therefore, he sought, and obtained an order in April 2011 requiring both parents to appear before the Family Part on June 30, 2011 “for a plenary hearing for the purpose of establishing a parenting time schedule.” The mother did not comply with that order, or with others requiring her to bring the children to New Jersey for visitation. She appealed the final of these.

The appeals court noted that while New Jersey entered the initial custody determination when the parties divorced, the state's Family Part could modify it only if it retained continuing jurisdiction over the matter. New Jersey had adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95, which prioritizes home-state jurisdiction, in 2004. But, as stated in Griffith v. Tressel, 394 N.J. Super. 128 (App. Div. 2007), when a New Jersey court makes the original child custody determination, “only a New Jersey court can determine that New Jersey has lost jurisdiction based on a lack of significant connection and substantial evidence.” The appeals court surmised the children's move to South Carolina likely took place in 2009, and no later than 2010, but the record before it provided no specifics. And since the question whether the children retained a significant connection with New Jersey had not been established by the Family Part prior to its issuance of the order now appealed, the court remanded for clarification, with instruction that that court not look at the parents' states of continued residence, but at the children's. The appeals court expressed its doubts, however, that substantial evidence could be produced in the court below showing that the children retained “care, protection, training and personal relationships” within New Jersey, as required by N.J.S.A. 2A:34-66(a)(1).

CONNECTICUT

State Court Has Jurisdiction Despite Religious Aspect of Prenuptial Agreement

After explaining that “[t]he issue presented to this court appears to be one of first impression in Connecticut,” the Superior Court of Connecticut, Judicial District of New Haven at New Haven, decided in Light v. Light, 2012 Conn. Super. LEXIS 2967 (2012), that the terms of a couple's prenuptial agreement should be enforced even though it references religious law. When the parties married in 2001, they entered into a prenuptial agreement providing that, should they separate, the husband would pay the wife $100 per day until he had granted her a divorce under Jewish law, known as a “get.” They did separate for several years, but the husband refused to grant the get, and also refused to pay his wife the $100 per day her had promised. She therefore petitioned the Connecticut court to enforce the terms of the contract.

The husband opposed, asserting that the court lacked subject matter jurisdiction to entertain the case because the prenuptial agreement, as a religious document, is subject to interpretation and enforcement only by the Rabbinical Court (Bet Din). The wife countered that the fact that the prenuptial agreement was created and entered into by two religious people did not remove that agreement from the authority of Connecticut's courts.

Justice Mark T. Gould looked to case law from the U.S. Supreme Court, Connecticut courts and the courts of sister states, finally concluding that the husband's objection should fail because: 1) Enforcement of the prenuptial agreement has the secular purpose of enforcing a contract and furthers the secular purpose set forth in Connecticut's Premarital Agreement Act; 2) The agreement's enforcement's main purpose is secular, does not promote or inhibit the practice of religion, and does not require either party to profess or deny any religious belief; and 3) Enforcement of the prenuptial agreement does not result in the government's excessive entanglement with religion, as the court is not required to interpret religious law in order to enforce the contract, but need only apply established principles of contract law and Connecticut's Premarital Agreement Act.

NEW JERSEY

State Must Decide Children's State of Residence

In a visitation rights case pitting a South Carolina mother against a New Jersey father, New Jersey's Appellate Division recently reversed a lower court order requiring the mother to return the children to New Jersey to visit their father. The reason: It appeared the children had been living in South Carolina for a long enough period of time that South Carolina might have become their state of habitual residence. If this was indeed the case, said the appeals court, New Jersey would lack jurisdiction over the matter.

The two minor children at issue in Horton v. Horton, 2012 N.J. Super. Unpub. LEXIS 2818 (2012), were born in New Jersey and resided there at least until their parents' divorce in November 2008. In the judgment of divorce, the father granted his consent for the children to move with their mother to South Carolina, with the proviso that the father should be able to obtain “reasonable visitation” with them upon giving at least 48 hours' notice. However, since their move out of state, the father claimed he had been thwarted in his attempts to visit with the children and to speak to them by telephone. Therefore, he sought, and obtained an order in April 2011 requiring both parents to appear before the Family Part on June 30, 2011 “for a plenary hearing for the purpose of establishing a parenting time schedule.” The mother did not comply with that order, or with others requiring her to bring the children to New Jersey for visitation. She appealed the final of these.

The appeals court noted that while New Jersey entered the initial custody determination when the parties divorced, the state's Family Part could modify it only if it retained continuing jurisdiction over the matter. New Jersey had adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95, which prioritizes home-state jurisdiction, in 2004. But, as stated in Griffith v. Tressel , 394 N.J. Super. 128 (App. Div. 2007), when a New Jersey court makes the original child custody determination, “only a New Jersey court can determine that New Jersey has lost jurisdiction based on a lack of significant connection and substantial evidence.” The appeals court surmised the children's move to South Carolina likely took place in 2009, and no later than 2010, but the record before it provided no specifics. And since the question whether the children retained a significant connection with New Jersey had not been established by the Family Part prior to its issuance of the order now appealed, the court remanded for clarification, with instruction that that court not look at the parents' states of continued residence, but at the children's. The appeals court expressed its doubts, however, that substantial evidence could be produced in the court below showing that the children retained “care, protection, training and personal relationships” within New Jersey, as required by N.J.S.A. 2A:34-66(a)(1).

CONNECTICUT

State Court Has Jurisdiction Despite Religious Aspect of Prenuptial Agreement

After explaining that “[t]he issue presented to this court appears to be one of first impression in Connecticut,” the Superior Court of Connecticut, Judicial District of New Haven at New Haven, decided in Light v. Light, 2012 Conn. Super. LEXIS 2967 (2012), that the terms of a couple's prenuptial agreement should be enforced even though it references religious law. When the parties married in 2001, they entered into a prenuptial agreement providing that, should they separate, the husband would pay the wife $100 per day until he had granted her a divorce under Jewish law, known as a “get.” They did separate for several years, but the husband refused to grant the get, and also refused to pay his wife the $100 per day her had promised. She therefore petitioned the Connecticut court to enforce the terms of the contract.

The husband opposed, asserting that the court lacked subject matter jurisdiction to entertain the case because the prenuptial agreement, as a religious document, is subject to interpretation and enforcement only by the Rabbinical Court (Bet Din). The wife countered that the fact that the prenuptial agreement was created and entered into by two religious people did not remove that agreement from the authority of Connecticut's courts.

Justice Mark T. Gould looked to case law from the U.S. Supreme Court, Connecticut courts and the courts of sister states, finally concluding that the husband's objection should fail because: 1) Enforcement of the prenuptial agreement has the secular purpose of enforcing a contract and furthers the secular purpose set forth in Connecticut's Premarital Agreement Act; 2) The agreement's enforcement's main purpose is secular, does not promote or inhibit the practice of religion, and does not require either party to profess or deny any religious belief; and 3) Enforcement of the prenuptial agreement does not result in the government's excessive entanglement with religion, as the court is not required to interpret religious law in order to enforce the contract, but need only apply established principles of contract law and Connecticut's Premarital Agreement Act.