By: Sheryl Seiden, Esq. and Kaitlyn McCracken, Esq.[1]

The Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) and the UCCJEA address related, but distinct, inquiries. The Hague Convention is a treaty, not a custody statute, and its inquiry is intentionally narrow. In cases brought under the Hague Convention, the Court is only addressing the issue of whether the child should be returned to the country of habitual residence following a wrongful removal or retention or whether the child should remain in his/her current location as it is his/her habitual residence or permissible based on one of the exceptions to the Hague Convention detailed below. It is important to note that in a Hague Convention case, the Court is not determining custody or conducting a traditional best interests’ analysis. The Court is focused only on which country is the child’s habitual residence.   

The UCCJEA, by contrast, governs which court has jurisdiction to decide custody issues. The two frameworks often intersect in international removal cases, where courts are required to address both the habitual residence, which could result in the return of a child to a different country, and the custody issues in the case.

1. Filing Under the Hague Convention

The Hague Convention is implemented through the International Child Abduction Remedies Act (“ICARA”), which permits a petition to be filed in either state or federal court and directs that the court “shall decide the case in accordance with the Convention.” 22 U.S.C. § 9003(d).

The Hague Convention “was adopted in 1980 in response to the problem of international child abductions during domestic disputes.” Golan v. Saada, 596 U.S. 666, 670, 142 S. Ct. 1880, 213 L. Ed. 2d 203 (2022) (quoting Abbott v. Abbott, 560 U.S. 1, 8, 130 S. Ct. 1983, 176 L. Ed. 2d 789 (2010)). The International Child Abduction Remedies Act, which implements the Hague Convention, “permits a parent (or other individual or institution) seeking relief under the Convention to file a petition for return of a child in state or federal court and directs courts to “‘decide the[se] case[s] in accordance with the Convention.'” Golan, 596 U.S. at 676-77 (quoting 22 U.S.C. § 9003(d)).  The Convention’s core premise that ‘the interests of children . . . in matters relating to their custody’ are best served when custody decisions are made in the child’s country of ‘habitual residence.'” Id. (quoting Hague Convention Preamble, Treaty Doc., at 7.)  The party petitioning for the child’s return bears the burden of establishing by a preponderance of the evidence that the child was wrongfully removed or retained. Pursuant to Article III of the Hague Convention, the removal or retention of a child is “wrongful” where: (a) it is a breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually a resident immediately before the removal or retention; and (b) at the time of the removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

If the court finds the child was wrongfully removed or retained, the respondent opposing the return of the child (to the then determined habitual residence) has the burden of establishing that “an exception to the return requirement applies.” Golan, 596 U.S. at 671-72. (citing 22 U.S.C. § 9003(e)(1)).  There are four recognized affirmative defenses associated with the securing of such an exception, which must be identified and proven under a specific standard as follows:

(1) by clear and convincing evidence that there is a grave risk that the return of the child would expose the child to physical or psychological harm; Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), Oct. 25, art. 13b, 1980, T.I.A.S. No. 11,670, 1343 U.N.T.S. 49, 42 U.S.C.S. § 11603(e)(2)(A);

(2) by clear and convincing evidence that the return of the child would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms; Hague Convention, art. 20, 42 U.S.C.S. § 11603(e)(2)(A);

(3) by a preponderance of the evidence that the proceeding was commenced more than one year after the abduction and the child has become settled in its new environment; Hague Convention, art. 12, 42 U.S.C.S. § 11603(e)(2)(B); or 

(4) by a preponderance of the evidence that a petitioner is not actually exercising the custody right at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention[2]; Hague Convention, art. 13a, 42 U.S.C.S. § 11603 (e)(2)(B). 

It is imperative to note that the standard for a determination of the exceptions differs as detailed above.

1. Determining Habitual Residence

            The inquiry into the habitual residence of a child is fact sensitive.  The Supreme Court of the United States ruled that the determination of a child’s habitual residence needs to consider the totality of the circumstances specific to each case, stating in pertinent part in Monasky v Taglieri, U.S., 140 S. Ct. 719, 206 L. Ed. 2d9 (2020):      

“Because locating a child’s home is a fact-driven inquiry, courts must be “sensitive to the unique circumstances of the case and informed by common sense.”  Redman [v. Redman], 724 F.3d [729, 744 (7^th Circuit. 2013)].  For older children capable of acclimating to their surroundings, courts have long recognized facts indicating acclimatization will be highly relevant.  Because children especially those too young or otherwise unable to acclimate, depend on their parents as caregivers, the intentions and circumstances of caregiving parents are relevant considerations.  No single fact, however, is dispositive across all cases…the inquiry into a child’s habitual residence is fact-intensive determination that cannot be reduced to a predetermined formula and necessarily varies with the circumstances of each case.”

[Monasky, 140 S. Ct at 727] (emphasis added).

As a general matter, a child’s habitual residence is “the place where the child has been physically present for an amount of time sufficient for acclimatization and which has a degree of settled purpose from the child’s perspective”  Baxter v. Baxter, 423 F.3d 363, 368 (3d Cir. 2005) (internal quotation marks omitted) (quoting Feder v. Evans-Feder, 63 F.3d 217, 224 3d Cir. 1995). The inquiry “must focus on the child and consists of any analysis of the child’s circumstances in that place and the parents’ present, shared intentions regarding their child’s presence there.” Feder, 63 F.3D at 224.  The Eleventh Circuit identified that the “the first step towards acquiring a new habitual residence is forming a settled intention to abandon the one left behind”. Ruiz v Tenorio, 392. F.3d 1247, 1252 (11^th Cir.) (2004) (emphasis added).

1. Monasky v. Taglieri, 589 U.S. 68, 68, 140 S. Ct. 719, 722, 206 L.Ed.2d 9, 9 (2020)

Monasky is a Hague Convention habitual residence case addressing how courts should determine a child’s habitual residence and what standard of review applies to that determination on appeal.

In Monasky v Taglieri, the Supreme Court of the United States addressed the how to determine a child’s “habitual residence” question and the standard for reviewing same on appeal. In this case, Mother, a United States citizen took the parties’ two month old daughter from Italy to Ohio as she claimed that she was fleeing from the abuse of the father.[3] Father petitioned in the U.S. District Court for the Northern District of Ohio for the child’s return to Italy under the Hague Convention pursuant to 22 U.S.C. 9003(b), “on the ground that the child has been wrongfully removed from her country of ‘habitual residence.’” The District Court granted the petition and the “en banc Sixth Circuit affirmed.” The Sixth Circuit cited that the habitual residence “depends on the parents’ shared intent” and rejected Mother’s argument. On the first question, the Court determined that the habitual residence is determined by reviewing the “totality of the circumstances” to determine where the child is “at home.”  

In this case, the child was only two months old when the mother fled from Italy to Ohio. The mother argued that that the parties did not have an agreement on where the child would be raised. The Supreme Court of the United States held that the determination of habitual residence does not turn on the existence of an actual agreement between the parties on this issue.

In support of her claim that she should be able to remain in Ohio with her daughter, the mother relied on the domestic violence that she endured during the course of her marriage. The Supreme Court specifically noticed that the Hague Convention has a mechanism for guarding children from the harms of domestic violence in rejecting this argument.

In addressing this question,  an agreement is not necessary nor does the question “turn on the existence of an actual agreement”. On the second question, the Court determined that the standard for review was “clear error”. Id. at 75.

The Court cited that while not defined by the Hague Convention, the Black’s Law Dictionary provides that “a Child ‘resides’ where [they] live.” The Hague Convention does not clarify what makes a child’s residence habitual; however it is one that is “more than just transitionary.” Id. The relevant facts also depends on the age of the children. For older children capable of acclimating to their surroundings, courts will consider facts relevant to their “acclimation.” For younger children, agreement of the parents may be more relevant than for older children. Some cases may be straightforward, others will require a more fact based analysis. The Court further noted that their determination as to habitual residence, is “bolstered by the views of [the United States’] treater partners.” Further, that ICARA expressly recognizes ‘the need for uniform international interpretation.’ Id. 78.

The Court determined not to remand the matter. The Court noted that although the lower court erroneously cited the agreement of the parties when presented with the option of further expanding the record, both parties declined. Further, the Court noted that the District Court did analyze mother’s arguments regarding her lack of ties to Italy and other factual allegations, including those related to the alleged abuse and found them unpersuasive to the final determination. The Court determined that there was nothing in the record that would indicate that upon remand the decision would have been different.

            The Third Circuit and Eleventh Circuit have taken different approaches to habitual residence under the Hague Convention historically, although they now both operate under the “totality of the circumstances” Monasky Standard.

1. Ruiz v Tenorio, 392 F.3d 1247 (11^th) (2004).

Ruiz is a Hague Convention habitual residence case addressing whether a family that relocated from the United States to Mexico for over two years had abandoned their United States habitual residence.

In Ruiz v Tenorio, the parties met when the mother was a foreign exchange student in Mexico. The parties later lived in the United States where they had three children. The parties lived in the United States for seven years and then lived in Mexico with the children for three years. The Eleventh Circuit held that the parties that the children’s habitual residence remained the United States because the parties never had the shared intent to make Mexico the children’s habitual residence. 

The Court of Appeals affirmed the 11^th District Court determination that the family did not abandon their residence in the United States upon their move to Mexico, despite staying in Mexico for over two years.  Factors that the Court said were important to determining that the family did not abandon their United States residency, included maintenance of bank accounts and credit cards in the United States. [4]

1. Abbott v. Abbott, 560 U.S. 1, 9–10 (2010).

Abbott is a Hague Convention return case addressing whether a ne exeat right – prohibiting removal of a child from a country without the other parent’s consent – constitutes a “right of custody” triggering the Convention’s return obligations.

In Abbott v. Abbott, the parties were divorced in Chile, where the mother exercised primary physical custody, but the father retained a ne exeat[5] right prohibiting removal of the child from Chile without his consent. The mother nonetheless relocated the child to the United States and sought to modify the father’s visitation rights, while father had sought to increase his parenting time in Chile.

The issue before the Court was whether that right constituted a “right of custody” under the Hague Convention. In resolving that issue, the Court emphasized that the Convention defines rights of custody to include “rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” Abbott v. Abbott, 560 U.S. 1, 9–10 (2010).

In rendering its decision, the Court stated that a ne exeat right provides “joint decision making authority over the child’s place of residence,” and therefore falls within the Hague Convention’s definition of custody. Id. at 10–11.

The Court further explained that excluding such rights would be inconsistent with the Hague’s Convention’s purpose, noting that the treaty was intended to prevent unilateral removals and that a contrary interpretation would “render the Convention meaningless in many cases.” Id. at 13–15.

1. K. v. T.K. 473 N.J. Super. 101, 110–11 (Ch. Div. 2020).

M.K. is a Hague Convention support enforcement case addressing whether a Central Authority or foreign court may modify a support order registered in New Jersey, or whether modification authority rests exclusively with the state where the creditor habitually resides.

Similarly, in M.K. v. T.K., the court addressed the enforceability of a foreign support order entered in Ireland and whether Ireland had authority to modify a support order that had been registered in New Jersey. 473 N.J. Super. 101, 110–11 (Ch. Div. 2020). In analyzing the Hague Convention, the court noted that its stated purpose is to “ensure the effective international recovery of child support,” and that the role of a Central Authority under the Hague Convention is limited to facilitating enforcement and collection — it does not extend to modifying a support order. Id. at 110–11.

The court further observed that while the Hague Convention does contemplate modification applications, any such application must be brought in the state where the creditor habitually resides and will be governed by that state’s law. Id. at 111. Additionally, Article 18 of the Hague Convention expressly prohibits a debtor from seeking modification in any contracting state other than the one where the creditor habitually resides, precisely to prevent competing or conflicting determinations. Id. at 111–12.

1. H.U. v. A.C.U., 427 N.J. Super. 354, 367 (App. Div. 2012).

F.H.U. is a Hague Convention return case addressing whether a child wrongfully removed to New Jersey from Turkey must be returned despite the passage of more than two years and the child’s apparent settlement in her new environment. This case examines whether the one year filing term of the statute can be tolled.

In reviewing this issue of whether the one year term can be tolled, other jurisdictions have permitted the tolling when the abducting parent has taken steps to conceal the child’s whereabouts. In this case, the child had remained in New Jersey for over two and a half years before the issue was adjudicated as a result of the difficulty of the United States Department of State finding pro bono counsel in the United States to represent the mother and in obtaining a United States via and finances for the mother to travel to the Untied States.

In F.H.U., a father took his five-year-old daughter from Turkey to New Jersey without the mother’s consent. By the time the mother commenced her action in the New Jersey, Chancery Division, Family Part, Passaic County, over two years had passed. The child was thriving, was good student, well-adjusted androoted in her community. The father argued that was enough. It was not. The trial court found the removal wrongful and ordered the child returned to Turkey. The Appellate Division affirmed.

In addressing the purpose of the Hague Convention, the Appellate Division observed that the trial court noted that allowing the mother’s behavior to go “unchecked would provide incentive to parents to take the law into their own hands, crossing international borders in reach of more sympathetic custody courts. The Hague Convention implemented by ICARA expressly seeks to prevent such action.”

The Court then addressed Article 12 and explained that the one-year provision “does not mandate denial of the petition,” but rather permits consideration of whether a child is well-settled, which is “something it would otherwise have no jurisdiction to examine”. Id. at 370–71. The Court noted that even where a child has developed ties to the new environment, the Hague Convention’s objectives may still warrant return. Id. at 371–72. In rejecting this argument, the Appellate Division noted that while different jurisdictions are split on whether the one year filing can be tolled; however, the majority view cite “specific acts of malfeasance.” The Appellate Division determined that was not present in the matter before them. In fact, father had informed mother of there whereabouts and mother had continued contact with the child. the court rejected arguments based on delay, financial hardship, and difficulty obtaining counsel, limiting tolling to concealment. In doing so, the court reasoned that broader tolling would “undermine the certainty and uniformity the Convention seeks to achieve.” Id. at 373–74, 379–80.

A finding of well-settled status does not end the inquiry and does not strip the court of its authority to order return. Article 12 “allows — but does not, of course, require — a judicial or administrative authority to refuse to order the repatriation of a child on the sole ground that the child is settled in its new environment.” Id. at 381 (quoting Blondin v. Dubois, 238 F.3d 153, 164 (2d Cir. 2001)). Article 18 makes the court’s residual authority explicit: “[t]he provisions of [Articles 12 and 13] do not limit the power of a judicial or administrative authority to order the return of the child at any time.” Id. at 374. The removal was wrongful. The child was going back. The Hague Convention “seeks to right a wrong by returning the factual situation to the status quo ante a child’s removal.” Id. at 382. A well-settled child is not an exempt one.

1. Innes v. Carrascosa, 391 N.J. Super. 453 (App. Div. 2007)

Innes is a Hague Convention return case addressing whether a mother who unilaterally removed a child from New Jersey to Spain could defeat return by invoking conflicting Spanish court determinations, and what rights a parent holds absent a formal custody order.

In Innes v. Carrascosa, the parties had entered into a parenting agreement restricting international travel without the consent of the other party, as part of an agreement[6] entered into through Carrascosa’s United States counsel[7]. The mother removed the child to Spain without the father’s consent, and parallel proceedings ensued in New Jersey and Spain, with conflicting determinations regarding custody and return.

In addressing jurisdiction, at a hearing Judge Parsons of the Superior Court of New Jersey, Family Division, Bergen County noted that “New Jersey certainly has a more substantial interest in this matter than Spain,” emphasizing that the child had resided in New Jersey and that the primary connections to Spain were the mother’s nationality and the place of marriage. Innes v. Carrascosa, 391 N.J. Super. 453, 465 (App. Div. 2007). The trial court further observed that the conduct at issue constituted “forum shopping,” rejecting the argument that jurisdiction could be shifted through unilateral removal. Id. The Appellate Division affirmed.

The procedural posture and conflicting determinations abroad did not alter the analysis. The Hague Convention requires that the determination of whether a removal is wrongful be made by applying the law of the child’s habitual residence. Id. at 485–86. In determining that the child’s habitual residence was New Jersey “both under state law and by operation” of the parties’ agreement, the trial court noted that the agreement set up custody for the father, and provided that the child would not be moved within 90 miles of New Jersey without consent of the other, and that the child had resided in New Jersey. Further, the Spanish court determined that the United States was the habitual residence of the child by determining that “[the child] was a U.S. national, …the last habitual residence of the spouses was in the USA, and…both spouses habitually residence in the USA..” The Spanish courts failed to apply New Jersey law and instead applied Spanish constitutional and procedural law, which the Appellate Division found to be an error under the Hague Convention. Id. at 490. Because the Spanish courts “deliberately disregarded the laws of New Jersey,” the Appellate Division declined to afford comity to their determinations. Id. Importantly, the Spanish court determined that New Jersey was the child’s habitual residence; however, they did not determine that mother should not have removed the child under the Hague Convention.

The Appellate Division also addressed what rights a parent holds in the absence of a formal custody order. Under New Jersey law, absent a court order to the contrary, both parents possess equal custody rights to their children. Id. at 486. The removal of the child without consent or court order therefore violated the father’s rights of custody and was wrongful under the Hague Convention. Id. The parenting agreement further confirmed those rights and Article 3 of the Hague Convention expressly recognizes that custody rights may arise “by operation of law, or by reason of an agreement having legal effect under the law of that State.” Id. at 487.

The Spanish courts’ contrary determination did not divest New Jersey of jurisdiction. The Hague Convention does not allow the state to which a child has been wrongfully taken “actually to decide who should have custody.” Id. at 484 (quoting In re App. of Adan, 437 F.3d 381, 391 (3d Cir. 2006)). The intent of the Hague Convention is to “restore the pre-abduction status quo and to deter parents from crossing borders in search of a more sympathetic court.” Id. (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir. 1996)). The Spanish courts, by failing to apply New Jersey law and by effectively adjudicating custody, did precisely what the Hague Convention prohibits. Id. at 491.

The mother was incarcerated for failing to comply with the New Jersey court’s orders to return the child, id. at 479, and the child remained in Spain with her grandparents — separated from both parents, while the litigation continued. Id. at 461. Innes makes clear that a parent cannot manufacture a foreign forum through unilateral removal and then invoke that forum’s contrary determinations to defeat return.

1. Nahar v. Salgia, A-5559-18T1, 2020 N.J. Super. Unpub. LEXIS 2073 (App. Div. Oct. 30, 2020)

Nahar is an international custody case addressing the limitations of the Hague Convention when a child is removed to a non-signatory country, and whether a court may unilaterally rewrite a negotiated parenting agreement governing international travel absent a showing of changed circumstances.

Nahar illustrates a critical limitation of the Hague Convention’s reach. In June 2014, the mother took the parties’ twin children to India without the father’s consent. The father filed an abduction complaint with the U.S. Department of State and was informed that India is not a party to the Hague Convention and there were “no civil mechanisms in effect between the United States and India to facilitate [the children’s] return.” Id. at 1–2.

The children eventually returned to the United States, and the parties litigated custody in New Jersey. The mother left for India in April 2015 and remained there for over two years, during which time the trial court entered orders granting the father sole legal and physical custody and barring the mother from traveling internationally with the children. Id. at 3–4. The father, by contrast, was expressly permitted to travel internationally with the children. Id. at 8.

When the parties eventually settled their divorce, their agreement – incorporated into the Supplemental Dual Final Judgment of Divorce – expressly preserved the father’s right to travel internationally with the children while maintaining the restriction on the mother [8]. Id. at 5. Just one month later, the mother moved for permission to travel internationally with the children to attend a family wedding in India. The father cross-moved to enforce the existing travel ban against the mother. Mother argued there was a change in circumstances since 2014 as she was no longer a citizen of India, resided full time in the United States and leased a residence in the United States.

At the hearing, the trial court raised sua sponte the possibility of banning both parties from international travel. When the father pointed out there was “nothing in the record to indicate he’s a flight risk” and nothing to suggest he had “ever abducted the children or failed to return them,” the court responded simply, “I agree.” Id. at 8. The court nonetheless proceeded to ban both parties from traveling internationally with the children until their eighteenth birthdays, finding international travel was not “high on [the court’s] priority list” and acknowledging the restriction was a “huge imposition” on the father. Id. at 8–9. The court’s stated concern was that ongoing litigation in India “could be fired back up again.” Id. at 9.

The Appellate Division reversed. The Appellate Division found the trial court had abused its discretion by rewriting the parties’ own agreement without any showing of changed circumstances. Id. at 15–16. “Fair and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed,” id. at 14 citing Quinn v. Quinn, 225 N.J. 34, 44, 137 A.3d 423 (2016), and “a court should not rewrite a contract or grant a better deal than that for which the parties expressly bargained.” Id. The father had traveled internationally with the children for years “without claims of abduction and delay,” id. at 17, and the record provided no support for the court’s conclusion that such travel was not in the children’s best interests. Id. at 18.

Nahar makes two things clear. First, when a child is removed to a non-signatory country, there is no treaty-based right to return – the left-behind parent is limited to whatever domestic remedies are available, remedies that may be difficult or impossible to enforce abroad. As the trial judge himself observed of a potential Indian court order mirroring the New Jersey proceedings, “Why does India care? They’re going to take my order and throw it in the trash.” Id. at 7. Second, even in domestic proceedings, courts may not unilaterally rewrite agreements that parties have carefully negotiated to resolve international travel disputes, absent a proper showing of changed circumstances.

1. Baxter v. Baxter, 423 F.3d 363 (3d Cir. 2005)

Baxter is a Hague Convention return case addressing the scope of the consent and grave risk of harm defenses, and specifically whether a father’s consent to a temporary visit constituted consent to permanent retention.

In Baxter v. Baxter, the Third Circuit reversed the denial of a Hague Convention petition for return of a child to Australia, holding that the District Court had applied the consent and grave risk of harm defenses too broadly.

The mother had traveled with the couple’s son from Australia to Delaware on a one-way ticket. Within weeks she began a new relationship and unilaterally decided to remain permanently – a decision she confirmed at trial by stating “it wasn’t until [she] met Mr. Stidham that everything changed and [she] decided to end [her] marriage and live with Mr. Stidham.” Id. at 373. The court held that the father’s consent to the child’s visit was conditional and limited, and that consent to removal does not automatically constitute consent to permanent retention. As the court explained, “Article 13(a) does not provide that if a parent consents to removal of the child for a period, under certain conditions or circumstances, that retention of the child beyond those conditions or circumstances is necessarily permissible.” Id. at 371. In examining the defense, courts must consider “what the petitioner actually contemplated and agreed to in allowing the child to travel outside its home country,” including “the nature and scope of the petitioner’s consent, and any conditions or limitations.” Id. at 372. The court likewise rejected the grave risk of harm defense, holding that “the inquiry into grave risk of harm focuses on the present living situation to which the child would be returned” – and because the father had relocated to Perth, the family’s prior difficult circumstances on a remote aboriginal island were not relevant. Id. at 374.

1. MacKinnon v. MacKinnon 191 N.J. 240 (2007)

MacKinnon is a removal case (decided under the old relocation standard of Bauers v. Lewis), not a Hague Convention return case. It addresses what happens when a custodial parent seeks permission under N.J.S.A. 9:2-2 to relocate a child to a country that is not a Hague Convention signatory, and the non-custodial parent argues that the absence of treaty protections should bar the move entirely.

The mother, a Japanese citizen, sought permission to return to Okinawa with the parties’ minor daughter Justine following the parties’ divorce. Id. at 242. The father opposed, arguing in part that because Japan was not a party to the Hague Convention, he would have no practical remedy if the mother wrongfully withheld visitation once abroad. Id. at 247. The trial court granted the removal request, applying the twelve-factor balancing test established in Baures v. Lewis, 167 N.J. 91 (2001), and concluding that the mother had a good-faith reason for the move and that relocation would serve Justine’s best interests. Id. at 247–48. The Appellate Division affirmed and the Supreme Court granted certification.

The central legal question was whether the Baures standard — developed in the interstate removal context — applies equally to international removal. The Supreme Court held that it does. Id. at 252. The Court acknowledged that “international removal is more complex than interstate removal,” id. at 253, but found the Baures factors sufficiently flexible to accommodate that complexity. Courts called upon to decide international removal disputes “should apply Baures expansively to adapt to international circumstances.” Id. The twelfth factor, a catch-all addressing “any other factor bearing on the child’s interest”, permits courts to consider Hague Convention membership, cultural concerns, feasibility of visitation, and enforceability of parental rights. Id. at 252.

On the enforceability question, the Court held that “although a foreign nation’s Hague Convention status is a pertinent factor, it is by no means dispositive.” Id. at 253. A bright-line rule prohibiting removal to non-signatory countries “would unnecessarily penalize a law-abiding parent and could conflict with a child’s best interest.” Id. (quoting Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 155 (App. Div. 2003)). Where enforceability concerns are raised, trial courts should “pursue alternative solutions to such problems by, for example, encouraging the parties to obtain appropriate orders in the foreign nations or enter into contractual agreements, enforceable overseas, governing visitation arrangements.” Id.

The Court affirmed the removal. The trial court’s conditions, including that New Jersey would retain sole jurisdiction, that the mother would bear the cost of returning Justine to New Jersey three times per year, and that webcam and telephone communication would be maintained, were found sufficient to protect the father’s relationship with his daughter. Id. at 248, 257–58. As the Court noted, “fear alone is insufficient to deprive a custodial parent of the ability to relocate” where the parent has a good-faith reason for the move and has shown the child will not suffer from it. Id. at 257 (quoting Abouzahr, 361 N.J. Super. at 155).

Under the Hague Convention, as outlined by the cases in this article, a child should generally be returned to the jurisdiction from which they were removed. The Convention’s core premise is that custody decisions are best made in the child’s country of habitual residence, and its primary purpose is to restore the pre-removal status quo and “to deter parents from crossing borders in search of a more sympathetic court.” Innes v. Carrascosa, 391 N.J. Super. 453, 484 (App. Div. 2007) (quoting Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir. 1996)). As the F.H.U. court observed, allowing wrongful removal to go unchecked “would provide incentive to parents to take the law into their own hands, crossing international borders in reach of more sympathetic custody courts,” and the Hague Convention “expressly seeks to prevent such action.” F.H.U. v. A.C.U., 427 N.J. Super. 354, 370–71 (App. Div. 2012). That principle holds even when the child has developed ties to the new environment — the Hague Convention “seeks to right a wrong by returning the factual situation to the status quo ante a child’s removal,” and a well-settled child is not an exempt one. Id. at 381–82.

The defenses to return are narrow and strictly construed. Consent to a temporary removal does not constitute consent to permanent retention, Baxter v. Baxter, 423 F.3d 363, 371 (3d Cir. 2005), and the grave risk of harm defense focuses on the present conditions to which the child would be returned, not past circumstances the family jointly decided to leave. Id. at 374. A parent cannot manufacture a foreign forum through unilateral removal and then invoke that forum’s contrary determinations to defeat return. Innes, 391 N.J. Super. at 491.

As to where one should file if a child is removed – federal or state court – the answer turns on the facts of the case. Under ICARA, the petitioner has a choice between the two. The statute “permits a parent seeking relief under the Convention to file a petition for return of a child in state or federal court,” and directs both to “decide the case in accordance with the Convention.” Golan v. Saada, 596 U.S. 666, 676–77 (2022).

Federal courts, as illustrated by Baxter, Monasky, and Abbott, tend to move cases on an expedited basis and have substantial experience with the Convention’s treaty framework, international law principles, and appellate uniformity across circuits. State courts, as illustrated by F.H.U., Innes, and Poluhovich, are equally empowered and in New Jersey have developed a sophisticated body of law on habitual residence, the defenses, and the intersection with the UCCJEA. State Family Part judges also have particular expertise in custody matters generally and are well-positioned to address the emergency jurisdiction and UCCJEA issues that frequently accompany Hague petitions. However, there are certain reliefs available in Federal Courts that are not permitted in New Jersey state Court. For example, the Federal Rules of Civil Procedure 17(c) provide that a guardian ad litem may be appointed for a petition under the Hague Convention. New Jersey does not provide an equivalent option. The practical edge likely favors federal court when speed and enforceability are paramount – federal courts have clearer procedural mechanisms for expedited handling, and a federal judgment may carry additional weight in subsequent enforcement proceedings. State court may be preferable when the case is likely to intersect with ongoing custody, domestic violence, or UCCJEA proceedings, where the Family Part’s jurisdiction and expertise provide a more comprehensive framework for resolving the full dispute.

• UCCJEA

Where the Hague Convention does not apply, or where the inquiry shifts from return of the child based on the habitiual residence analysis and exceptions thereto, to one of custody, the analysis proceeds under the UCCJEA. Unlike the analysis done under the Hague Convention which focuses on the habitual residence of the child, the analysis in a UCCJEA case centers on which jurisdiction is the home state of the child. Prior to the enactment of the UCCJEA, in 1968 the National Conference of Commissioners on the Uniform State Laws enacted the Uniform Child Custody Jurisdiction Act (UCCJA) b 9 U.L.A. 111, 116 (master ed. 1979). “The UCCJA was designed to foster stability in custody awards and discourage “seize-and-run” tactics by forum-shopping parents. See E.E.B. v. D.A., 89 N.J. 595, 607 (1982); Foster & Freed, “Child Snatching and Custodial Fights,” 28 Hastings L.J. 1011 (1977); Bodenheimer, “Interstate Custody,” 14 Fam. L.Q. 203 (1981).” NEGER v. NEGER, 93 N.J. 15, 25 (1983). However, UCCJA had gaps in its application. Thus, in in 1997, the Uniform Law Commissioners created the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) to replace the UCCJA, to resolve the problems with the UCCJA. The UCCJEA has been enacted in 49 States, the District of Columbia, Guam, and the U.S. Virgin Islands.  It was codified in New Jersey in 2004. Massachusetts[9] and Puerto Rico have not enacted the UCCJEA

As outlined in Sajjad v. Cheema, 428 N.J. Super. 160, 177–79 (App. Div. 2012),  the UCCJEA governs the determination of subject matter jurisdiction in interstate, as well as international, custody disputes. Greely v. Greely, 194 N.J. 168, 178 (2008). See also Poluhovich v. Pellerano, 373 N.J. Super. 319, 352, 861 A.2d 205 (App.Div.2004) (addressing subject matter jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), N.J.S.A. 2A:34-28 to -52, the predecessor of the UCCJEA), certif. denied, 183 N.J. 212, 871 A.2d 90 (2005). The UCCJEA was enacted in an effort “to avoid jurisdictional competition and conflict” between jurisdictions in favor of “cooperation with courts of other states [or other countries] as necessary to ensure that custody determinations are made in the state that can best decide the case.” Griffith v. Tressel, 394 N.J. Super. 128, 138, 925 A.2d 702 (App.Div.2007). When confronted with a child custody complaint involving competing interstate or international jurisdictional claims, the Family Part must examine and follow the multi-step procedure outlined in the UCCJEA. Poluhovich, supra, 373 N.J. Super. at 357, 861 A.2d 205.

When undertaking a jurisdictional analysis, the UCCJEA treats a foreign sovereign “as if it were a state of the United States . . . if the foreign court gives notice and an opportunity to be heard to all parties before making child custody determinations.” N.J.S.A. 2A:34-57(a). See also Innes v. Carrascosa, 391 N.J. Super. 453, 482, 918 A.2d 686 (App.Div.) (explaining similar defenses under the UCCJA), certif. denied, 192 N.J. 73, 926 A.2d 857 (2007). One exception obviating compliance with the UCCJEA occurs “if the child custody law of a foreign country violates fundamental principles of human rights or does not base custody decisions on evaluation of the best interests of the child.” N.J.S.A. 2A:34-57(c). See also UCCJEA § 105, Commissioner’s Official Comment, 9 U.L.A. 662 (1999).1

The UCCJEA prioritizes the use of the child’s “home state,” as the exclusive basis for jurisdiction of a custody determination, regardless of the residency of the parents. Dalessio v. Gallagher, 414 N.J. Super. 18, 26, 997 A.2d 283 (App.Div.2010);  In re Meng, 376 N.J. Super. 641, 644-45, 645 n. 1, 871 A.2d 182 (Ch.Div.2004). In an initial request for custody, . . . . a court of this State has jurisdiction to make an initial child custody determination only if:

1. This State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

2. A court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under . . . [J.S.A.2A:34-71 and -72] and:
   1. the child and the child’s parents, or the child and at least one parent or a person acting as a parent ha[s] a significant connection with this State other than mere physical presence; and
   2. substantial evidence is available in this State concerning the child’s care, protection, training and personal relationships;

The UCCJEA typically “prioritizes the use of the child’s ‘home state,’ as the exclusive basis for jurisdiction of a custody determination, regardless of the residency of the parents.” Ibid. (citing Dalessio v. Gallagher, 414 N.J. Super. 18, 26, 997 A.2d 283 (App. Div. 2010)).

N.J.S.A. § 2A:34-54 defines “home state as” “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, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.”

However, even if New Jersey is not the “home state,” it may still exercise temporary emergency jurisdiction under N.J.S.A. 2A:34-68. To exercise temporary emergency jurisdiction under this statute, the child must have been abandoned or “subjected to or threatened with mistreatment or abuse.” N.J.S.A. 2A:34-68(a).

A review some of the significant  UCCJEA cases that have been adjudicated under New Jersey law are as follows:

1. Genoe v. Genoe, 205 N.J. Super. 6 (App. Div. 1985)

Genoe is a UCCJA case (standard before enactment of UCCJEA), which addresses whether New Jersey had jurisdiction to modify a Florida custody order whereby Florida declined jurisdiction in the matter after the mother and the children relocated to New Jersey.

In Genoe v. Genoe, 205 N.J. Super. 6 (App. Div. 1985), the Appellate Division addressed whether New Jersey had jurisdiction to modify a Florida custody order after the mother relocated to New Jersey with the children and Florida ultimately declined to exercise continuing jurisdiction. The court affirmed the Family Part’s reinstatement of the New Jersey complaint and remanded for a plenary best interests hearing.

The parties had divorced in Florida in 1977, with custody awarded to the mother. The children subsequently relocated with the mother to New Jersey and the father stayed in Florida. Florida conducted further proceedings addressing visitation before concluding in an October 1984 order that New Jersey was the children’s home state and that “the question of custody should be resolved in the State of New Jersey.” Id. at 11. With Florida having declined jurisdiction on both home state and inconvenient forum grounds, New Jersey’s authority to proceed with jurisdiction on the custody issues in this matter was no longer in question.

The court first disposed of the defendant’s contention that New Jersey lacked in personam jurisdiction over him as a Florida resident. The court held that “in personam jurisdiction is not required to entertain an application to modify an order for custody or visitation under the UCCJA provided that notice and opportunity to be heard are given.” Id. at 15. The custody status of children, it explained, may be decided “quasi in rem”, and once jurisdiction is properly assumed under the UCCJA, “custody and visitation orders can be made and modified without regard to whether either parent has submitted to the court’s jurisdiction.” Ibid.

Turning to the statutory basis for jurisdiction, the court applied the Uniform Child Custody Jurisdiction Act (“UCCJA”), N.J.S.A. 2A:34-28 et seq., which seeks “to protect the welfare of children in interstate custody disputes by introducing certainty and stability in the choice of forum and by encouraging interstate cooperation in the interest of the child.” E.E.B. v. D.A., 89 N.J. 595, 603 (1982), quoted in Genoe, 205 N.J. Super. at 15. It bears noting that Genoe was decided under the UCCJA, which the court characterized as rejecting “a rigid rule vesting jurisdiction automatically in the home state” in favor of “a more flexible approach.” Id. at 16 (quoting E.E.B. v. D.A., 89 N.J. 595, 610 (1982)). That flexibility has since been significantly curtailed. The UCCJA was repealed and replaced in New Jersey by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95, effective December 12, 2004, which expressly prioritizes home state jurisdiction and eliminates the co-equal “significant connection” basis for initial jurisdiction that existed under the UCCJA.

As the Appellate Division explained in Dalessio v. Gallagher, 414 N.J. Super. 18, 22 (App. Div. 2010), the UCCJEA “should be interpreted so as to avoid jurisdictional competition and conflict and require cooperation with courts of other states as necessary to ensure that custody determinations are made in the state that can best decide the case” – the Court was citing Griffith v. Tressel, 394 N.J. Super. 128, 138 (App. Div. 2007) – and one of the UCCJEA’s primary objectives was to “prioritize[ ] home state jurisdiction” over all other bases for asserting jurisdiction. Dalessio, 414 N.J. Super. at 22. Accordingly, while Genoe remains instructive on the in personam jurisdiction question and on the conditions under which a court may modify another jurisdiction’s custody decree, its more flexible jurisdictional framework has been superseded, and home state jurisdiction now governs initial custody determinations under New Jersey law.

1. Sajjad v. Cheema, 428 N.J. Super. 160, 177–79 (App. Div. 2012)

Sajjad is a UCCJEA jurisdictional case addressing whether a New Jersey court may defer entirely to a competing Pakistani custody proceeding without first conducting a home state analysis under the UCCJEA.

In Sajjad, the parties were married in Pakistan, had a child born in the United Kingdom, and relocated to New Jersey in 2007 where the family lived until 2009, due to Father’s employment. Id. at 164. In 2007, the family applied for and received permanent residency cards. In May 2009, father learned he would be transferred by his employer to a position in the United Kingdon and “[o]n June 7, 2009, [mother] and the child left for Lehore Pakistan”. Id. at 149. Father claims that mother and the child moved to Pakistan with the intention to join him in the United Kingdom “with no expectation of returning to the United States.”[10] Mother argued that the trip to Pakistan was no more than a family trip and there was every intention to return to the United States “at the conclusion of [father’s] assignment in the United Kingdom.” [11] The parties returned to New Jersey shortly in September of 2009 and executed a change of address with Homeland Security listing their permanent address as the father’s uncle’s Virginia address. When the marriage broke down, the father filed for custody and divorce in Pakistan in December 2009 and placed the child’s name on Pakistan’s exit control list, preventing the child from leaving the country. Id. at 166–67. The mother returned to New Jersey and filed her own complaint for divorce and custody in January 2010. Id. at 168. The child remained in Pakistan until July 2010 with the child’s maternal grandparents. The Pakistani Court determined that the child “’ordinarily resided in Pakistan’” and the United States District court found the Pakistan Court “lacked jurisdiction.” when the intervention of a United States Congressman secured the child’s removal from the exit control list and the child was returned to New Jersey. Id. at 167.

The trial court dismissed the New Jersey action, deferring entirely to the Pakistani proceedings. The judge reasoned that “both parties are adequately represented in the Pakistani courts, both parties are actively litigating in a court of record in Pakistan . . . none of which have resulted in any kind of final determination,” and concluded that “under the doctrine of comity . . . this [c]ourt ought to defer until that litigation is concluded.” Id. at 169–70. The Appellate Division reversed.

The Appellate Division held that the existence of a foreign proceeding does not, standing alone, divest a New Jersey court of jurisdiction. The threshold question under the UCCJEA – the statute governing jurisdiction in both interstate and international custody disputes – is whether New Jersey is the child’s “home state”, defined as “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 . . . [including a] period of temporary absence.” N.J.S.A. 2A:34-54, quoted in Sajjad, 428 N.J. Super. at 172. The Court noted that the use of the word “lived” is deliberate as it connotes physical presence, not domicile or subjective intent to remain. Id. at 173. As the court noted, the Legislature used “lived” rather than “resided” or “was domiciled” “precisely to avoid complicating the determination of a child’s home state with inquiries into the states of mind of the child or the child’s adult caretakers.” Id. (quoting Escobar v. Reisinger, 2003 NMCA 47, 133 N.M. 487, 64 P.3d 514, 517 (Ct.App.2003)).

Whether an absence from New Jersey is “temporary”, and therefore does not break the six-month period, turns on a fact-specific inquiry. Courts consider the parent’s purpose in removing the child, whether the remaining parent believed the absence to be temporary, whether the absence was of indefinite duration, and the totality of the surrounding circumstances. Id. at 173–74.

The Appellate Division noted that trial court never conducted that analysis. It simply deferred. “The Family Part judge failed to analyze the child’s home state and dismissed plaintiff’s claims without prejudice, merely deferring to the previously filed on-going Pakistani proceeding. This was error.” Id. at 177.

On the comity question, the Appellate Division was equally clear. “Comity, in a legal sense, is neither a matter of absolute obligation on the one hand nor of mere courtesy and good will upon the other.” Id. at 179 (quoting Fantony v. Fantony, 21 N.J. 525, 533 (1956)). It is a discretionary doctrine, and its application requires analysis – not reflexive deference. Pivotal to any comity determination is whether the foreign court had jurisdiction in the first place. Id. at 180. Where that question was never examined, deference to the foreign proceeding was improper.

The matter was reversed and remanded for a plenary evidentiary hearing. Id. at 178.

1. Dalessio v. Gallagher, 414 N.J. Super. 18 (App. Div. 2010)

Dalessio is a UCCJEA jurisdictional case addressing whether New Jersey may assert “significant connection” jurisdiction over a child brought here only twenty-three days before filing, when Washington had been the child’s home state for her entire life.

In Dalessio v. Gallagher, 414 N.J. Super. 18 (App. Div. 2010), the Appellate Division addressed which state had jurisdiction to determine custody of a child under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95, when the child had lived her entire life in Washington but had been brought to New Jersey by her mother only twenty-three days before a New Jersey custody proceeding was filed. The court held that Washington retained exclusive home state jurisdiction and that New Jersey could not assume jurisdiction on a “significant connection” theory.

The UCCJEA provides that a court has jurisdiction to make an initial child custody determination only if the state “is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State.” N.J.S.A. 2A:34-65(a)(1). “Home state” is separately defined as the state in which a child lived with a parent “for at least six consecutive months immediately before the commencement of a child custody proceeding.” N.J.S.A. 2A:34-54. The mother argued that because the child had not been in Washington for six consecutive months immediately before the New Jersey filing, Washington could not qualify as the home state -leaving New Jersey free to assert jurisdiction based on the child’s significant connections to the state under N.J.S.A. 2A:34-65(a)(2).

The Appellate Division rejected that argument, finding that it “would effectively read one of the predicates for home state jurisdiction under N.J.S.A. 2A:34-65(a)(1) out of the statute.” Id. at 24. The court held that the circumstances fell squarely within the second predicate as Washington had been the child’s home state until twenty-three days before the filing, and the father continued to reside there. The court resolved the apparent tension between the definition in N.J.S.A. 2A:34-54 and the jurisdictional predicate in N.J.S.A. 2A:34-65(a)(1) by reference to the UCCJEA’s primary legislative objective, prioritizing home state jurisdiction, concluding that the definition of “home state” cannot “reasonably be read to negate the clear intent” of the jurisdictional provision. Id. The court further emphasized that the UCCJEA “should be interpreted so as to avoid jurisdictional competition and conflict and require cooperation with courts of other states as necessary to ensure that custody determinations are made in the state that can best decide the case.” Id. at 22 (quoting Griffith v. Tressel, 394 N.J. Super. 128, 138 (App. Div. 2007)). Significant connection jurisdiction under subsection (a)(2), the court made clear, is available only as a fallback when no state qualifies under the home state predicate, not as an alternative a parent may access by unilaterally removing a child from her home state.

1. Benda v. Benda, 236 N.J. Super. 365, 369 (App. Div. 1989)

Benda is a UCCJA emergency jurisdiction case addressing whether a New Jersey court may assume general custody jurisdiction and enjoin a pending Indiana proceeding based on domestic violence allegations, or whether its authority is limited to temporary emergency relief.

In Benda v Benda, the Court was addressing a UCCJA matter, which was the predecessor to UCCJEA and how it applies in matters with domestic violence. The parties married in Nevada, lived in California, and ultimately settled in Indiana, where the mother filed for divorce in March 1988 and obtained a restraining order based on allegations of serious domestic violence. Id. at 366–67. The parties reached a temporary custody agreement in Indiana, and both continued to litigate there through the spring of 1988. Id. at 367. In June 1988, the mother left Indiana and came to New Jersey with the children. Id. She filed a domestic violence complaint in New Jersey, obtained a temporary restraining order, and then filed for custody in New Jersey, seeking to have the New Jersey court assume emergency jurisdiction and stay the action in Indiana. Id. at 367–68.

Indiana determined that where the proceedings had originated and where all parties had previously resided, was the proper forum. Id. at 370–71. Indiana proceeded, ordered return of the children and found mother in contempt. The New Jersey trial court nonetheless asserted jurisdiction, enjoined the father from proceeding with the Indiana hearing, and directed that all custody proceedings take place in New Jersey. Id. at 368–69. The Appellate Division reversed.

The court began by noting that the purpose of the Act is precisely to address situations like this one. The Appellate Division noted its legislative findings, that, inter alia, the statute is designed to “avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effect on their well-being” and to “deter abductions and other unilateral removals of children undertaken to obtain custody awards.” N.J.S.A. 2A:34-29(a), (e), quoted in Benda, 236 N.J. Super. at 369–70.

Once Indiana and New Jersey conferred and agreed that Indiana was the proper forum[12], the New Jersey court’s ability to exercise general jurisdiction was gone. N.J.S.A. 2A:34-34(a) is explicit: a New Jersey court “shall not exercise its jurisdiction under this act if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this act.” Id. at 370.  The New Jersey Appellate Division cited language from a Texas Court of Appeals decision “[w]hen a sister state is already exercising jurisdiction in conformity with the U.C.C.J.A. at the time of filing . . . the only power that the [second] trial court has is to dismiss.” Cunningham v. Cunningham, 719 S.W.2d 224, 228 (Tex. Ct. App. 1986), quoted in Benda, 236 N.J. Super. at 371.

The only available exception was emergency jurisdiction – available where a child physically present in New Jersey has been subjected to or threatened with mistreatment or abuse. N.J.S.A. 2A:34-31(a)(3)(ii). But emergency jurisdiction is narrow. As the court explained, quoting Hache v. Riley, 186 N.J. Super. 119, 127–28 (Ch. Div. 1982), “[a]ssumption of emergency jurisdiction is an assumption of temporary jurisdiction only; it is meant solely to prevent irreparable and immediate harm to children and, absent satisfaction of other U.C.C.J.A. jurisdictional prerequisites, does not confer upon the state exercising emergency jurisdiction the authority to make a permanent custody deposition [sic].” Benda, 236 N.J. Super. at 371.

The trial judge had the power to enter an interim protective order for the benefit of the children, “no more and no less.” Id. at 372. “He lacked the power to award custody (other than on a temporary basis) or to enjoin defendant from participating in the pending Indiana proceedings.” Id. When Indiana entered its final judgment in December 1988, the temporary New Jersey order lost its force entirely, rendering the appeal moot. Id.

1. Mc v. Mc, 215 N.J. Super. 132, 138 (Ch. Div. 1986)

Mc is a UCCJA comity case addressing whether New Jersey must recognize competing Irish custody orders when one was entered without proper notice to the mother and without any consideration of the children’s best interests.

Mc v. Mc is a trial court decision (from the Chancery Division, Ocean County) wherein one child was residing in each of the two competing jurisdictions, with custody orders from both Ireland and New Jersey.

The parties married in Ireland in 1979 and had two children, both dual citizens of Ireland and the United States. Id. at 134. The family customarily summered in New Jersey with the mother’s parents. In September 1985, following a summer of marital discord and a domestic violence order, the father returned to Ireland with the older child, B., leaving the mother and younger child, M., in New Jersey. Id. at 135. In November 1985, the father obtained an ex parte custody order from an Irish court awarding him custody of both children. The mother was not served with notice of that proceeding until January 21, 1986 after the order had already been entered. Id. at 136–37. In June 1986, the mother filed a complaint for custody in New Jersey. Id. at 137.

The court framed the analysis around two legal principles that, in its view, had to “coalesce”, to wit: comity and the UCCJA. Id. at 137. On comity, the court quoted Fantony v. Fantony, 21 N.J. 525, 533 (1956), for the proposition that recognition of a foreign judgment requires: “(1) that the foreign court had jurisdiction of the subject matter; (2) that the foreign judgment will not offend the public policy of our own State.” Mc, 215 N.J. Super. at 138. But before comity could even be reached, the court explained, the jurisdictional provisions of the UCCJA had to be satisfied, specifically, whether the foreign proceedings were conducted under standards substantially similar to those of the Act. Id. at 138–39.

Applying that framework, the court reached different conclusions as to each child. The Irish order of November 1985 was found “null and void” on two grounds: (1) the mother had not been properly served with notice – in violation of both the Irish court’s own order and the policy expressed in N.J.S.A. 2A:34-51, and the Irish court had failed entirely to consider the best interests of the child, in contravention of New Jersey public policy. Id. at 139–40. The Appellate Division rejected the failure to apply a best interests analysis. “The uncontroverted and long standing acceptance of the application of the ‘best interest of the child’ doctrine forms the basis of each and every custody decision in New Jersey,” id. at 139, and a foreign judgment that ignores it cannot be recognized here.

The Irish March 1986 order stood on different footing. By that time the mother had been noticed, appeared through counsel, and requested an adjournment. The Irish judge indicated he would have considered expert testimony on best interests had it been offered. The court found that proceeding to have been conducted in substantial conformity with applicable standards and upheld the Irish order as to B. under principles of comity. Id. at 140.

As to M., who had remained in New Jersey and lived there for approximately half of her young life, New Jersey was her home state under N.J.S.A. 2A:34-31 and the court exercised jurisdiction accordingly, awarding custody to the mother subject to the father’s visitation rights. Id.

Mc demonstrates that a foreign order entered without proper notice or without any consideration of the child’s best interests will not be recognized here, regardless of where it originated.

1. Poluhovich v. Pellerano, 373 N.J. Super. 319 (App. Div. 2004)

Poluhovich is a UCCJA jurisdictional case addressing whether New Jersey may modify a Dominican Republic custody order on “significant connection” grounds when the Dominican Republic retained home state jurisdiction and had not declined to exercise it.

In Poluhovich v. Pellerano, the Appellate Division addressed whether New Jersey courts had subject-matter jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), N.J.S.A. 2A:34-28 to -52, to modify a custody order entered by the courts of the Dominican Republic, a country that was not a signatory to the Hague Convention. The Appellate Division reversed the Family Part’s assumption of jurisdiction and ordered dismissal of the father’s custody complaint.

The parties, both United States citizens, had lived in the Dominican Republic for years before their divorce, and the children had resided there continuously since 1995. The father, upon retaining the children in New Jersey during a summer visit, filed for sole custody alleging abuse and neglect. The Family Part initially assumed emergency jurisdiction under N.J.S.A. 2A:34-31a(3), but after expert evaluation concluded that the allegations ‘lacked merit’, it pivoted to asserting “significant connection” jurisdiction under N.J.S.A. 2A:34-31a(2), relying heavily on the children’s ties to New Jersey and its concern that Dominican Republic proceedings would not afford the father adequate due process.

The Appellate Division rejected that analysis. Under N.J.S.A. 2A:34-42a, a New Jersey court may not modify another jurisdiction’s custody decree unless the issuing court no longer has jurisdiction under prerequisites substantially in accordance with the UCCJA, or has declined jurisdiction. Neither condition was met – the Dominican Republic was plainly the children’s home state, retained jurisdiction, and had not declined to exercise it. The court further held that the Dominican Republic’s non-membership in the Hague Convention was not dispositive, emphasizing that the international application provision of the UCCJA, N.J.S.A. 2A:34-51, requires only that foreign proceedings afford “reasonable notice and opportunity to be heard” – not that they mirror New Jersey’s procedures in sophistication or detail. The record showed the father had been fully represented, had negotiated the original settlement, and had consented to Dominican Republic jurisdiction. As the court made clear, the “lack of a structured approach to removal applications in the Dominican Republic similar in nature to that articulated in Baures v. Lewis” was not the proper standard for assessing subject-matter jurisdiction in an international custody dispute. Id. at 367. Were it otherwise, the court observed, the jurisdictional principles of the UCCJA and UCCJEA “would be meaningless.” Ibid.

Conclusion

The cases discussed in this article reflect a consistent theme: courts will not permit the manipulation of jurisdiction, forum, or process to frustrate the rights of a left-behind parent or to circumvent the obligations imposed by the Hague Convention and its implementing legislation. Whether the issue is the return of a wrongfully removed child, the recognition of a foreign custody order, the exercise of emergency jurisdiction, or a request to relocate internationally, the analysis begins and ends with the same foundational principles, that custody determinations belong in the jurisdiction with the closest connection to the child, that unilateral removal to manufacture a more favorable forum will not be rewarded, and that the best interests of the child are best served when those determinations are made by the courts best positioned to make them.

[1]  Sheryl Seiden is a founding partner at SeidenFreed, LLC with offices located in Cranford, Parsippany, and Pennington, New Jersey. Ms. Seiden was the president of AAML NJ Chapter from June 2024 to June 2025. She was Chair of the Family Law Section of the NJSBA from May 2019 to May 2020. She serves on the board of the IAFL USA chapter. Ms. McCracken is an associate at SeidenFreed, LLC. She completed two clerkships and has dedicated her career to family law matters. 

[2] Emphasis added.

[3] Mother claims that she was compelled to flee due to Father’s abuse.

[4] It is important to note that the Third Circuit traditionally followed the standard from Feder v. Evans-Feder (1995), which established that a change in habitual residence requires a change in geography and the passage of time, rather than just changes in parental intent. It took a more child focused approach.

[5] As clarified by the Supreme Court  a ne exeat right is “the authority to consent before the other parent may take the child to another country.” Id.

[6] The agreement was entered into when mother’s action for annulment in Spain was the sole pending matter.

[7] Prior to the parties’ marriage they entered into a prenuptial agreement, which provided, inter alia, that the terms would be construed under the laws of the state of New Jersey.

[8] Mother reserved her right to seek via post judgment application, permission to travel internationally.

[9] Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) | Wex | US Law | LII / Legal Information Institute

[10] He offered documentation that evidenced the child’s withdrawal from his US school to support this proposition.

[11] Mother submitted a letter from the father’s employer which was written “to secure the child’s reentry to the United States.”

[12] After the mother filed to dismiss the Indiana action, the two states court’s conferred regarding the proceedings. Specifically, on August 18^th there was a docket notation entered stating on August 12, 1988 this court entered an order pursuant to the Uniform Child Custody Act. That after conference with Judge Friend in Superior Court, Morris County, New Jersey, it was unanimously decided and agreed that jurisdiction of the cause vested in Clay County, Indiana.”