Thus, 2A:34-31a and 2A:34-42a, when read together, make clear that when faced with an application to modify the custody order of another state, here a foreign country, the Family Part must first determine whether the state/country that issued the order to which modification is sought has “jurisdiction under jurisdictional prerequisites substantially in accordance with this act or has declined to assume jurisdiction to modify the decree[.]” Here, although the final judgment issued by the Dominican Republic court specifically permitted him to do so, plaintiff has not filed an application in the Dominican Republic to modify the custodial award embodied in the divorce judgment issued by that country or to prevent defendant from relocating with the children to Norway. Rather, at the prompting of the Family Part, defendant filed an application in the courts of the Dominican Republic to enforce her custodial rights.
The term “home state” under the UCCJA is defined in 2A:34-30e as
the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as a parent, for at least 6 consecutive months, and in the case of a child less than 6 months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the 6-month or other period[.]
The definition of “home state” under the UCCJEA, 2A:34-54, is substantially the same.
Here, that the courts of the Dominican Republic continue to have jurisdiction over the modification of its custodial order “under jurisdictional prerequisites substantially in accordance with” the UCCJA, N.J.S.A. 2A:34-42a, seems clear. Under any analysis of the facts of this case, the Dominican Republic is the “home state” of these children and the courts of that country certainly have subject-matter jurisdiction to entertain applications directed to issues of custody of the children. Moreover, the overwhelming evidence in the record establishes that the children and defendant have a significant connection with the Dominican Republic, where they have lived continuously since 1995, and that there is available substantial evidence concerning the children’s present or future care, protection, training and personal relationships in the Dominican Republic.
Therefore, plaintiff has not satisfied the first prong contained in 2A:34-42a(1) for the exercise of subject-matter jurisdiction to modify the custodial arrangement decreed by the courts of the Dominican Republic some 16 months prior to his filing for custody in the Family Part. Assuming that plaintiff had established the first prong, he would still be required to establish the second prong for modification jurisdiction, namely, that “the court of this State has jurisdiction.” 2A:34-42a(2).
However, when an international custody dispute arises, the first issue to be analyzed is whether the jurisdictional provisions of the UCCJA should be applied at all. That issue revolves around the question of whether a parent is accorded due process in the foreign country, including reasonable notice and an opportunity to be heard. N.J.S.A. 2A:34-51, titled “International application,” provides as follows:
The general policies of this act extend to the international area. The provisions of this act relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature and to custody rendered by appropriate authorities of other nations, if reasonable notice and opportunity to be heard were given to all affected persons.
