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Military Parents in New Jersey 101: Child Custody, Parenting Rights & Responsibilities

Apr 15, 2017

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Law

DIVORCE 101

How state and federal laws and branch policies affect child custody, visitation and support for military familiesMilitary Parents in New Jersey 101: Rights and Responsibilities

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Family & Divorce Lawyers in New Jersey

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military PARENTS: Disclaimer

This presentation contains general information and does not constitute legal advice. Be sure to direct specific questions about your own situation to an attorney.Weinberger Law Group is not affiliated with the United States Military.

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SectionsMilitary Parents in New Jersey: Rights and Responsibilities

Introduction and Common Procedural Issues.Child Custody and Parenting Time.Child Support.Military Benefits for Children.

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Military Parents in New JerseyIntroduction & Common Procedural IssuesMilitary Parents 101 1. Introduction.

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Introduction Laws and Procedures for Military Parents5Issues involving child custody and visitation or child support can be especially complicated for military families due to the interaction of family law with military regulations and policies. State courts make their own orders based on state law rather than enforcing military branch policies.Frequent moves sometimes result in confusion regarding which state (or sometimes even which country) is the appropriate authority for issuing and enforcing court orders.Certain laws provide special protections to military parents.

Military Parents 101 1.Introduction.

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Introduction Choosing the Right Court and Procedure6Depending on the circumstances, the appropriate state court may be in your state, the other parents state or the state with jurisdiction over the child.Jurisdiction gives a court authority to make decisions. Claims for custody, visitation or child support may be part of a divorce case or may be initiated as a separate non-dissolution procedure. In New Jersey, claims are filed in the Superior Court - Chancery Division - Family Part. Military Parents 101 1. Introduction.

Custody and visitation are often addressed at the same time as child support, but there are some differences between these two things when it comes to choosing the right court. There are different forms and filing requirements for a divorce case and for a nondissolution case that is just addressing custody, parenting time and/or support, so you need to be sure that you have the correct documents. .6

State Court Procedures for Military ParentsJurisdictionJurisdiction in child custody matters is determined by theUniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). N.J.S.A. 2A:34-53 et seq.Jurisdiction in child support matters and parentage matters is determined by the Uniform Interstate Family Support Act (UIFSA).N.J.S.A. 2A:4-30.65 et seq.7Military Parents 101 1. Introduction.

A court will normally grant a motion to transfer jurisdiction if neither party remains in the state, but if parents reside in different states and each wants the matter transferred to a different court, the motion could be conflict-ridden, time-consuming, and expensive.

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Jurisdiction for Child Custody and VisitationUCCJEAA state can claim jurisdiction under any of the following circumstances:the state is, or was within the last six months, the childs home state;it is in the best interests of the child for the state to have jurisdiction due to a significant connection with the state;the child is physically present in the state and has been either abandoned or is in need of emergency protection; orno other state has jurisdiction and it is in the childs best interests for the state to exercise jurisdiction.

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Jurisdiction for Child Custody and VisitationUCCJEAThe original court generally retains authority unless the child and both parents have moved out of the state or there is a mutual agreement to transfer jurisdiction. Even if a child is a U.S. citizen, jurisdiction may belong to a foreign country. New Jersey law states that if a child is living out of state on a temporary modification order, New Jersey will retain home state jurisdiction.9Military Parents 101 1. Introduction

It isnt a good idea to let your child move to another state, or especially another country, to live with the other parent, without first obtaining enforceable court orders. If you have a jurisdictional issue involving your children, its advisable to get help from an attorney right away because this can get complicated.

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Jurisdiction for Parentage and Support Orders UIFSAThe UIFSA addresses a courts authority over the parent paying support (the obligor). The court must have personal jurisdiction over the obligor, either because:The obligor resides in the state, or The obligor has engaged in purposeful action as further specified in the act, which created a reasonable expectation that the state court would gain authority. Note: the obligor can also voluntarily submit to jurisdiction10Military Parents 101 1. Introduction.

2A:4B-201. Bases for jurisdiction over nonresident. a. In a proceeding to establish or enforce a support order or to determine parentage of a child, a tribunal of this state may exercise personal jurisdiction over a nonresident individual or the individuals guardian or conservator if: (1) the individual is personally served with a summons or notice within this state; (2) the individual submits to the jurisdiction of this state by consent in a record, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction; (3) the individual resided with the child in this state; (4) the individual resided in this state and provided prenatal expenses or support for the child; (5) the child resides in this state as a result of the acts or directives of the individual; Uniform Interstate Family Support Act Final Report 12/18/14 Page 7 (6) the individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse; (7) there is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction. b. The bases of personal jurisdiction set forth in subsection (a) or in any other law of this state may not be used to acquire personal jurisdiction for a tribunal of this state to modify a child-support order of another state unless the requirements of Section 611 are met, or, in the case of a foreign support order, unless the requirements of Section 615 are met.10

Orders from Other States or Foreign TribunalsUCCJEA and UIFSAOnly one tribunal has exclusive and continuing jurisdiction. Other state courts recognize and enforce orders from the state with exclusive jurisdiction but will not modify such orders. When jurisdiction belongs to a foreign country, enforcement may depend on reciprocal agreements between states and countries.Without a reciprocal agreement, a state court can still decide that the law and procedures of the foreign country favor enforcement.If you have an international jurisdictional dispute, consult an attorney. 11Military Parents 101 1. Introduction.

The way these statutes should work is that there should not be different courts making orders that conflict with one another. The most appropriate court makes the orders and then other courts enforce them. You need to register your out-of-state orders with a local court to get enforcement assistance. Requests for modification go back to the original court unless theres a convincing reason to change which court has jurisdiction. 11

State Court ProceduresProviding Notice to the Other ParentYou must give the other parent a chance to respond by serving copies of papers according to the applicable rules. This could require:Mail service (regular and certified, return receipt request). Personal service off-post (sheriffs office or a process server can serve papers according to state law). Personal service on post (contact the Commanding Officer or the Provost Marshall and follow instructions).

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Military Parents 101 1. Introduction.

[Presenter can further discuss types of service that may be required, including substituted service or service by publication if whereabouts of a parent are unknown.]12

Notice to Parents Overseas 13Service overseas can be especially challenging. If you know that you or your childs other parent may soon be deployed overseas, try to address any urgent situation before the deployment.Hague Convention Countries generally permit service by mail to a central authority in the host country.In non-Hague countries, the procedure will depend on the agreement between the host country and the U.S Military.

Military Parents 101 1. Introduction.

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The SCRA is a federal law extending various protections to servicemembers on active duty, including protection from default in civil suits.

Servicemembers Civil Relief Act (SCRA)14The purpose is to allow military personnel to devote full attention to the defense of the nation.

Note: The timeframes for responses, answers, cross-motions, etc. may also be extended upon request of the servicemember.Military Parents 101 1. Introduction.

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Stay of Proceedings under the SCRAA judge cannot enter a default against a servicemember unless the servicemember waives the protections of the SCRA or the court first appoints an attorney for the servicemember.If the attorney cannot contact the servicemember or the court finds that current military service or service within the past 90 days is affecting the servicemembers ability to appear and present a defense, the court will stay the proceedings for at least 90 days.15Military Pa

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