We granted a stay of that order pending disposition of the appeal, and also appointed George Warren as guardian ad litem to represent the interests of the children. Judge Saunders filed a comprehensive opinion in which he concluded that although the New Jersey court had jurisdiction to determine custody, the circumstances relating to the mother's unlawful removal of the children from Michigan and the custody determinations in favor of the father by the Michigan court and the New York Court of Appeals warranted a refusal to exercise such jurisdiction, citing Borys v. Borys, 76 N.J. 103 (1978). In granting summary judgment the judge denied the mother's application for a plenary hearing, which was sought in order to determine whether the change of custody at this time would in fact be in the best interests of the children.
They commenced the New Jersey proceeding only after the Ohio courts declined to order a best interest hearing. We granted certification to re-examine the jurisdiction of New Jersey courts in interstate custody disputes in light of the significant changes in both federal and state legislation since our decision in Borys v. Borys, 76 N.J. 103 (1978). We now affirm the judgment of the Appellate Division that the New Jersey courts may conduct a best interest hearing.
4 § U.S. Const., May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 [1953]; Greenhouse v. Hargrave, Okla., 509 P.2d 1360, 1362 [1973]; Wells v. Sheriff, Carter County, Okla. Cr. 442 P.2d 535, 540 [1968]; Crooks v. District Court of Seventh Judicial Dist., Oklahoma County, Okla., 581 P.2d 897, 899 [1978]; Hedrick v. Hedrick, Okla., 571 P.2d 1217, 1219 [1977]; Ross v. Ross, 201 Okla. 174, 203 P.2d 702, 705 [1949]. See discussion in Hedrick v. Hedrick, supra note 2; Borys v. Borys, 76 N.J. 103, 386 A.2d 366, 369-372 [1978]; Anno. 35 A.L.R.3rd 520; 9 ULA 111, 112-113, Uniform Child Custody Jurisdiction Act, Prefatory Note.Hedrick v. Hedrick, supra note 2; Greenhouse v. Hargrave, supra note 2; Nehra v. Uhlar, 168 N.J. Super. 187, 402 A.2d 264 [1979]; Borys v. Borys, supra note 3, 386 A.2d at 370.
POINT IITHE COURT MISAPPLIED BORYS V. BORYS, 76 N.J. 103 (1978).POINT III
Even before the Act was passed the Supreme Court indicated that a trial court in a custody action could decline to exercise its jurisdiction rather than to adjudicate custody ". . . when a New Jersey court is asked to determine custody of a child present in the state as a result of a child snatching or disobedience of a sister state's orders, barring extraordinary circumstances." Borys v. Borys, 76 N.J. 103, 125 (1978). Obviously "child snatching" in the view of the Supreme Court could include removal of a child even though the removal violated no order.
[ Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 439, 64 S.Ct. 208, 214, 88 L.Ed. 149, 155-56 (1943).] See Borys v. Borys, 76 N.J. 103, 109-11, 386 A.2d 366 (1978); Reese Johnson, The Scope of Full Faith and Credit toJudgments, 49 Colum.L.Rev. 153, 161 (1949) (the framers of the full faith and credit clause intended "to give us the benefits of a unified nation by altering the status of otherwise 'independent, sovereign states'") (quoting Sherrer v. Sherrer, 334 U.S. 343, 355, 68 S.Ct. 1087, 1093, 92 L.Ed. 1429, 1438 (1948)). Just as cohesion between state courts is necessary for national unity, cohesion between state and federal courts is necessary for the continuing vitality of the federalist system.
law to change the decree); May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953) (holding Ohio need not give full faith and credit to Wisconsin custody judgment because Wisconsin did not have personal jurisdiction over mother who was in Ohio with children at time process was served; Wisconsin had been matrimonial domicile and father had remained there); Kovacs v.Brewer, 356 U.S. 604, 78 S.Ct. 963, 2 L.Ed.2d 1008 (1958) (holding North Carolina had authority to modify New York custody decree if the North Carolina court found changed circumstances, because New York decree was modifiable under New York law on showing of changed circumstances); Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240 (1962) (holding South Carolina not bound by Virginia court's order of dismissal after being informed of an agreement regarding custody, because Virginia law did not require that courts would be bound by agreements between parents with respect to custody of their children). See also Borys v. Borys, 76 N.J. 103, 109-115 (1978) (discussing judicial applications of the Full Faith and Credit Clause to custody decrees). The positions espoused in these decisions unfortunately encouraged child snatching by a parent, which was condoned, even rewarded.
Justice Frankfurter's concurring opinion, widely acknowledged as having set forth the better view, insisted that his support for this view was based on the premise that a state with any justifiable interest in a child's welfare need never accept a prior decision reached in another state if for valid reasons it might differ with the result reached. See Clark, Domestic Relations, § 11.5, p. 324 (1968); Bernard and Johnson, "The Jurisdiction of Texas Courts in Interstate Child Custody Disputes: A Functional Approach," 54 Tex. L. Rev. 1008, 1011-1013 (1976); Kovacs v. Brewer, 356 U.S. 604 ( 78 S.C. 963, 2 L.Ed.2d 1008) (1958); Borys v. Borys, 386 A.2d 366, 371 (N.J.S.C. 1978). That May v. Anderson, supra, has been severely criticized is without dispute.
The parties' consent order allowed either party to file an "application with the court to address custody and parenting time issues based on changed circumstances." Indeed, "[a] party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the child[]." Hand, 391 N.J.Super. at 105 (citing Borys v. Borys, 76 N.J. 103, 115-16 (1978); Sheehan v. Sheehan, 51 N.J.Super. 276, 287 (App. Div. 1958)). Defendant failed to present any evidence of a factual dispute to support a changed circumstance regarding the child's custody.
"A party seeking to modify custody must demonstrate changed circumstances that affect the welfare of the children." Ibid. (citing Borys v. Borys, 76 N.J. 103, 115-16 (1978)). "'[W]hen the submissions show there is a genuine and substantial factual dispute regarding the welfare of the children,' the 'plenary hearing is necessary to resolve the factual dispute.'" Faucett, 411 N.J.Super. at 128 (alteration in original) (quoting Hand, 391 N.J.Super. at 105).