Please help

[MvZamora]

What is the name of your state (only U.S. law)? New Mexico

I have a question regarding jurisdiction. My ex has physically had our son in New Jersey for the past three years. The eight years prior to that, our son lived in New Mexico with me. My ex and I have an existing court order in New Mexico. Now he is filing for full custody and child support in New Jersey. Does New Jersey have jurisdiction since that is where our son resides with his father or does New Mexico have jurisdiction since there is already an order in place?

 

[Nocgirl]

In most cases NM would retain jurisdiction.

 

[LdiJ]

In most cases NM would retain jurisdiction.

However, if you don't take the necessary legal steps to get his case dismissed in NJ for lack of jurisdiction, then you will be accepting the jurisdiction of the NJ courts.

So, get an attorney in NJ to file the necessary paperwork to challenge jurisdiction. However, keep in mind that its not 100% guaranteed that you will succeed. If your ex can make a case that NJ jurisdiction is necessary to represent the best interest of the child, NM might agree to cede jurisdiction to NJ.

 

[MvZamora]

However, if you don't take the necessary legal steps to get his case dismissed in NJ for lack of jurisdiction, then you will be accepting the jurisdiction of the NJ courts.

So, get an attorney in NJ to file the necessary paperwork to challenge jurisdiction. However, keep in mind that its not 100% guaranteed that you will succeed. If your ex can make a case that NJ jurisdiction is necessary to represent the best interest of the child, NM might agree to cede jurisdiction to NJ.

I am unable to afford an attorney and I've acted pro se in previous court hearings. Is filing the necessary paperwork for lack of jurisdiction something that I can file myself?

 

[ecmst12]

You may need to APPEAR in court in NJ, will you be able to do that?

If he has primary placement, why haven't you already been paying child support?

 

[LdiJ]

I am unable to afford an attorney and I've acted pro se in previous court hearings. Is filing the necessary paperwork for lack of jurisdiction something that I can file myself?

You can file yourself, but your chances of winning will lessen. You need to file a motion to dismiss his case due to lack of subject matter jurisdiction. Odds are you will also need to appear in court.

It might be cheaper to hire an attorney to handle the motion than to have to travel to NJ for court.

 

[MvZamora]

You can file yourself, but your chances of winning will lessen. You need to file a motion to dismiss his case due to lack of subject matter jurisdiction. Odds are you will also need to appear in court.

It might be cheaper to hire an attorney to handle the motion than to have to travel to NJ for court.

Thank you LdiJ. I just have one more question. Is the attorney's location extremely important? In a previous post, you stated that I should hire an attorney in NJ. Are my chances lessened if I hire an attorney from NM?

 

[Silverplum]

Thank you LdiJ. I just have one more question. Is the attorney's location extremely important? In a previous post, you stated that I should hire an attorney in NJ. Are my chances lessened if I hire an attorney from NM?

If hiring, you must hire an attorney licensed to practice law in the state in which the legal action is taking place. In other words, you can't hire an attorney in NM to litigate in NJ unless said attorney is licensed to practice in both states.

 

[Ohiogal]

I am unable to afford an attorney and I've acted pro se in previous court hearings. Is filing the necessary paperwork for lack of jurisdiction something that I can file myself?

Have ANY of these previous court hearings been held in NJ? If so then it is too late to challenge jurisdiction based on UCCJEA. You have waived your challenge of jurisdiction based on location and personal jurisdiction. Has ANYTHING been filed in NJ by you?

 

[MvZamora]

Have ANY of these previous court hearings been held in NJ? If so then it is too late to challenge jurisdiction based on UCCJEA. You have waived your challenge of jurisdiction based on location and personal jurisdiction. Has ANYTHING been filed in NJ by you?

He's filed in NJ. That's it. I've only recieved a summons. I haven't filed anything and there have never been any hearing in NJ. The existing court order is in NM and that is the only place we've ever appeared.

 

[Ronin]

Even if a response is not timely filed to any custody actions filed in NJ, this does not mean that NJ can simply assume jurisdiction by default.

Under UCCJEA, NJ only gets jurisdiction if NM (as the original court of exclusive continuing jurisdiction) voluntarily relinquishes it. So the parent filing in NJ would have to take steps to ask the NM court to relinquish jurisdiction to NJ, while also serving the other parent notice of such actions. It would then be up to the NM court to determine whether or not the parent waived their right to challenge jurisdiction, not the NJ court.

But in this case it does not appear that anything is late... so far.

At the very least you should promptly file an Answer to the summons challenging jurisdiction.

Under UCCJEA, NM will maintain jurisdiction over your case until a NM Court (not a NJ Court) determines that:

(1)the child no longer has a significant connection with NM
AND
(2) that substantial evidence concerning the children's care, protection, training, and personal relationships is no longer available in NM.

While #2 is often a given once a child is a resident of another state, #1 is the point that is often argued to keep the case in the original state. And to prevail on #1, it has to be shown that at least one parent continues to reside in that state, and that in other ways the child has a significant connection with the home state (ie; extended family also living there, yearly visits to the parent in the original home state....)

 

[MvZamora]

Even if a response is not timely filed to any custody actions filed in NJ, this does not mean that NJ can simply assume jurisdiction by default.

Under UCCJEA, NJ only gets jurisdiction if NM (as the original court of exclusive continuing jurisdiction) voluntarily relinquishes it. So the parent filing in NJ would have to take steps to ask the NM court to relinquish jurisdiction to NJ, while also serving the other parent notice of such actions. It would then be up to the NM court to determine whether or not the parent waived their right to challenge jurisdiction, not the NJ court.

But in this case it does not appear that anything is late... so far.

At the very least you should promptly file an Answer to the summons challenging jurisdiction.

Under UCCJEA, NM will maintain jurisdiction over your case until a NM Court (not a NJ Court) determines that:

(1)the child no longer has a significant connection with NM
AND
(2) that substantial evidence concerning the children's care, protection, training, and personal relationships is no longer available in NM.

While #2 is often a given once a child is a resident of another state, #1 is the point that is often argued to keep the case in the original state. And to prevail on #1, it has to be shown that at least one parent continues to reside in that state, and that in other ways the child has a significant connection with the home state (ie; extended family also living there, yearly visits to the parent in the original home state....)

I've read up on UCCJEA and our son's "home state" is NM. Now, with what you said, is it still true that I have to find an attorney in NJ to fight the jurisdiction issue? Also, what I thought about doing was sending in the current order to NJ as a "response". Would this be advisable??

 

[Ronin]

While interstate disputes are by far best handled by an attorney, a response to the NJ petition can be as simple as using your ex's Original Petition as a template, merely add the term "Answer To.." whatever the petition is titled, answer each allegation made in the petition, make your UCCJEA argument to challenge the attempt to change jurisdiction, include the NM court and case information and when NM last made a ruling in your case, include a PRAYER in your final statement that requests dismissal of the suit in NJ, attach a copy of the last orders made by the NM court, mail this to the NJ Court Clerk, and serve all parties as required.

 

[MvZamora]

While interstate disputes are by far best handled by an attorney

I'm strongly considering getting an attorney, but if I can't afford it I will do as you suggested. However, when looking for an attorney, should the attorney still be in NJ as early suggested? Or since I'm challenging the jurisdiction, can a NM attorney help?

 

[LdiJ]

i'm strongly considering getting an attorney, but if i can't afford it i will do as you suggested. However, when looking for an attorney, should the attorney still be in nj as early suggested? Or since i'm challenging the jurisdiction, can a nm attorney help?

no...you need an attorney in nj!