Opinion
DOCKET NO. A-5663-13T2
02-12-2016
C.G., Plaintiff-Respondent, v. A.D., Defendant-Appellant.
A.D., appellant pro se. Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-3239-12. A.D., appellant pro se. Respondent has not filed a brief. PER CURIAM
Defendant (the mother) appeals from a June 27, 2014 order requiring her to engage in therapeutic intervention to aid her parenting time with the parties' then eight-year-old daughter. Primarily, she challenges the intervention by a New Jersey judge, ignoring a September 11, 2012 order from a Delaware court giving her sole custody of the child (the custody order). Our review of the motion record reveals the judge did not make the requisite findings of fact and conclusions of law necessary to determine whether New Jersey had jurisdiction under New Jersey's Uniform Child Custody Jurisdiction and Enforcement Act (NJUCCJEA), N.J.S.A. 2A:34-53 to -95. As a result, the judge prematurely entered the order under review. We therefore reverse without prejudice and remand for further proceedings.
Our review of this appeal is hampered because the record is incomplete. Apparently the child lived with the mother in Delaware for approximately five years until the child temporarily moved to New Jersey to live with plaintiff (the father) because of the mother's medical condition. At oral argument, the parties disputed the precise chronology of the child's residency during the relevant time period.
On June 6, 2012, the mother filed a petition in Delaware for custody of the parties' daughter. Also, in June 2012 and unrelated to the child, the father obtained an amended temporary restraining order against the mother.
The parties did not produce a copy of any subsequent final restraining order.
On September 11, 2012, the Delaware judge entered the custody order and a visitation schedule after conducting a teleconference. The Delaware judge determined Delaware was the child's home state because defendant filed the petition less than six months "after [the child] had gone to live with the [the father]."
The father appears to have been provided notice of the petition, but did not participate in the teleconference before the Delaware judge.
The mother then filed a motion in New Jersey under the domestic violence docket number requesting the court enforce the custody order. On June 27, 2014, the judge conducted oral argument, at which the parties appeared pro se. The judge did not communicate with the Delaware judge or make adequate findings of fact as to the child's residency leading up to the mother's petition for custody in Delaware. He denied the mother's motion without prejudice.
The mother returned to Delaware and petitioned once again for custody of the child. On April 11, 2014, the Delaware judge entered a letter order which stated:
While the [c]ourt is sympathetic to [the] [m]other's position, nevertheless[,] this [c]ourt made a determination on September 11, 2012[,] that Delaware had jurisdiction because notwithstanding the fact that the minor child went to live with [the] [f]ather [on] December 17, 2011[,] since [the] [m]other filed her petition in Delaware prior to the expiration of [six] months, on June 6, 2012[,] the [c]ourt determined that Delaware had jurisdiction as it was still
the home state at the time that the petition was filed.The Delaware judge stood by the custody order "that granted [the mother] sole custody and primary residence of [the child]."
On appeal, the mother essentially argues that in denying her motion to enforce the custody order, the judge failed to make the necessary findings of fact and conclusions of law under the NJUCCJEA.
The mother also argues for the first time on appeal that the judge should be disqualified because he stated at oral argument he knew the Delaware judge. We decline to consider this argument as the mother failed to present it to the trial court when an opportunity to do so was available. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). The mother is free to present this issue on remand. --------
We review a "trial court's interpretation of the law and the legal consequences that flow from established facts" de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 14 0 N.J. 366, 378 (1995).
In the case before us, the parties' custody dispute is subject to the Uniform Child Custody Jurisdiction and Enforcement Act, which Delaware adopted in 2002 and New Jersey adopted in 2004. See Table of Jurisdictions Wherein Act Has Been Adopted (preceding N.J.S.A. 2A:34-53). The NJUCCJEA "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." Griffith v. Tressel, 394 N.J. Super. 128, 138 (App. Div. 2007).
As an initial custody determination was already rendered in Delaware, this proceeding is a modification proceeding governed by N.J.S.A. 2A:34-67. Under that provision, a New Jersey court "may not modify a child custody determination made by a court of another state" unless a two-tiered inquiry is met. N.J.S.A. 2A:34-67. First, the New Jersey court must have "jurisdiction to make an initial [custody] determination under" N.J.S.A. 2A:34-65(a)(1) and (2). If the New Jersey court has jurisdiction, one of two additional considerations must be met:
a. the court of the other state determines it no longer has exclusive, continuing jurisdiction under [N.J.S.A. 2A:34-66] or that a court of this State would be a more convenient forum under [N.J.S.A. 2A:34-71]; or
b. a court of this State or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state."
[N.J.S.A. 2A:34-67(a) and (b).]
As for the first requirement, N.J.S.A. 2A:34-65(a)(1) and (2) provides:
a. . . . [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 [N.J.S.A. 2A:34-71] or [N.J.S.A. 2A:34-72] and:
(a) the child and the child's parents, or the child and at least one parent or a person acting as a parent have a significant connection with this State other than mere physical presence; and
(b) substantial evidence is available in this State concerning the child's care, protection, training and personal relationships;
[(Emphasis added).]
Thus, the determination of a child's "home state" is central to the statutory analysis when deciding whether New Jersey or another state has jurisdiction under the NJUCCJEA to make an initial custody determination, and therefore is also central to the ability of a New Jersey court to modify an initial custody determination. Indeed, one of the "primary objectives of the [NJ]UCCJEA" is to give priority to the home state of the child as a basis for exercising jurisdiction. Dalessio v. Gallagher, 414 N.J. Super. 18, 22 (App. Div. 2010). See also Senate Judiciary Committee Statement to S.150 (reprinted following N.J.S.A. 2A:34-53) (explaining that certain updated provisions "give[] priority to the home state as a ground for taking jurisdiction"). The NJUCCJEA 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.
[N.J.S.A. 2A:34-54.]
Therefore, when a New Jersey court is faced with a NJUCCJEA jurisdictional dispute, the threshold decision it must make is whether New Jersey was the child's home state: (1) on the date the custody proceeding was commenced or (2) within six months before the commencement of the proceeding and the child was absent from New Jersey but a parent or person acting as a parent continued to live in New Jersey. When conducting that analysis, the court must take into account that "[t]he statutory definition of 'home state' allows the child's 'temporary absence' from the home state within the six month period." Sajjad v. Cheema, 428 N.J. Super. 160, 173 (App. Div. 2012) (quoting N.J.S.A. 2A:34-54).
"Whenever a challenge to the court's ability to exercise subject matter jurisdiction in a custody matter is presented, a Family Part judge must scrutinize the facts and make specific findings supporting the court's assumption or rejection of subject matter jurisdiction." Id. at 175. If the judge concluded New Jersey was not the child's home state under N.J.S.A. 2A:34-65(a)(1), he then should have determined whether Delaware was the child's home state under N.J.S.A. 2A:34-65(a)(2). That analysis would have required the judge to undertake a similar fact-finding process to determine whether the parties' daughter resided in New Jersey with the father and merely visited the mother on a temporary basis or whether the child lived with the mother and was merely visiting the father.
If the judge should decide that New Jersey had jurisdiction to make an initial custody determination,
the next inquiry is whether custody proceedings had been commenced in another state, properly exercising jurisdiction, which issued an initial custody determination. N.J.S.A. 2A:34-70(a). If so, and the other court had jurisdiction "substantially in conformity with [the UCCJEA]," then New Jersey must stay its proceedings and communicate with the other court, seeking an agreement on whether New
Jersey is the more convenient forum to make the determination. N.J.S.A. 2A:34-70(b). A Family Part judge may decline to exercise jurisdiction if the person seeking to invoke the jurisdiction engaged in unjustifiable conduct, N.J.S.A. 2A:34-72, or if New Jersey is an inconvenient forum and another state would be more appropriate. N.J.S.A. 2A:34-71.
[Sajjad, supra, 428 N.J. Super. at 174 (alteration in original).]
Despite being presented with an existing custody order issued from Delaware, the judge not only failed to adequately conduct the initial step of determining the child's home state, he also never communicated with the Delaware court regarding its action or the New Jersey findings regarding the child's residential status. We therefore reverse without prejudice the June 27, 2014 order requiring the mother to engage in therapeutic intervention to address her parenting time with the child, and remand for further proceedings consistent with this opinion. The trial court shall schedule a further hearing within forty-five days. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION