I respectfully request the Court restrain Alejandra from removing the children from New Jersey and grant me temporary physical custody of them pending a plenary hearing on the issue of a permanent change in residential custody. Having outlined the alleged threatened danger and harm to the children, and citing primarily to our decision in Marcrum v. Marcrum, 181 N.J.Super. 361, 365, 437 A.2d 725 (App.Div. 1981), the supporting brief submitted by plaintiff to the Family Part requested that the court exercise emergency jurisdiction pursuant to N.J.S.A. 2A:34-31a(3), "to ensure the safety of the children." The request for entry of a temporary order of custody was presented to the Family Part by plaintiff, ex parte, on July 28, 2004.

(See Donigan, Child Custody Jurisdiction: New Legislation Reflects Public Policy Against Parental Abduction (1983-84) 19 Gonzaga L.Rev. 1, 57-59.) The court in Marcrum v. Marcrum (1981) 181 N.J. Super. 361 [ 437 A.2d 725, 727-728], held a plenary hearing should be conducted to weigh all the evidence bearing on the alleged mistreatment or abuse of the children. "New Jersey must not abdicate it [ sic] parens patriae duty to these children."

We fully recognize that at least several other states have, again without discussion of this distinction, found jurisdiction to exist under the emergency provision of the Uniform Child Custody Jurisdiction Act upon allegations that the child had been mistreated or abused in the domicile state and, although safe in the asylum state at the time of the petition, was fearful to return to the domicile state. See, e.g., Breneman v. Breneman, 92 Mich. App. 336, 284 N.W.2d 804 (1979); Marcrum v. Marcrum, 181 N.J.Super, 361, 437 A.2d 725 (1981), cert. granted, 89 N.J. 402, 446 A.2d 136 (1982); Priscilla S. v. Albert B., 102 Misc.2d 650, 424 N.Y.S.2d 613 (1980). However, we think that to allow the non-custodial parent, such as the petitioner here, who has gained physical custody and control of the children in Florida through visitation, to vest jurisdiction in a Florida court by alleging past mistreatment and abuse in the domicile state on the part of the custodial parent would be to allow the emergency provision of Section 61.1308(1)(c)2 to subsume all other jurisdictional provisions in total disregard of the purposes of the Uniform Child Custody Jurisdiction Act.

Only one New Jersey case has addressed the issue of what factors are sufficient to allow the exercise of emergency jurisdiction. Marcrum v. Marcrum, 181 N.J. Super. 361 (App.Div. 1981). No reported cases in this State have dealt with the future jurisdictional implications of an exercise of emergency jurisdiction under the UCCJA.

The parties to this matter having stipulated to a dismissal of the within appeal, it is ORDERED that the appeal in this matter be and hereby is dismissed. (See 181 N.J. Super. 361 (1981))

Certification is granted and the matter is temporarily remanded to the Superior Court, Chancery Division, Hunterdon County for the limited purpose of the trial court holding an expedited best interest hearing, pursuant to N.J.S.A. 2A:34-31. Jurisdiction is retained, and the appeal shall go forward pending the filing of the findings and recommendations of the trial court. (See 181 N.J. Super. 361)

Therefore, we conclude that both elements of the emergency base have been established for her and that the district court's finding concerning the daughter is supported by the evidence.See Marcrum v. Marcrum, 181 N.J. Super. 361, 437 A.2d 725, 727-28 (App. Div. 1981); cf. Milner v. Kilgore, 718 S.W.2d 759 (Tex.App. — Corpus Christi 1986, no writ) (trial court lacked jurisdiction where allegations of a serious and immediate question concerning the welfare of a child were filed after the jurisdictional hearing); Soto-Ruphuy v. Yates, 687 S.W.2d 19 (Tex.App. — San Antonio 1984, no writ) (allegation consisted of father's affidavit "based on hearsay upon hearsay" and record contained no evidence of physical or emotional harm requiring immediate action). We observe that under section 11.53(a)(3)(B), there are two reasons for emergency orders: (1) if it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected, or (2) there is a serious and immediate question concerning the welfare of the child.

Div. 2003). But when a concern about a child's health or welfare is substantiated, a judge has discretion to enter a temporary order pending the plenary hearing. Marcrum v. Marcrum, 181 N.J. Super. 361, 363-65 (App. Div. 1981), appeal dismissed, 93 N.J. 232 (1982). Such temporary decisions about parenting time pending a hearing are "necessarily discretionary" and not disturbed by this court "as long as there is a rational basis in the record . . . ."

Defendant offered little or no independent evidence of the facts concerning Kevin's life with his mother in Oklahoma, other than his own opinions and speculation. Compare Marcrum v. Marcrum, 181 N.J. Super. 361, 363 (App.Div. 1981) ("[a]nnexed to the verified complaint were two reports of psychological evaluations and a hospital record detailing the wife's alleged alcoholic problem."), certif.

This is not a "child-snatching" case. Compare Stevens v. Stevens, 177 N.J. Super. 167, 425 A.2d 1081 (App.Div. 1981) with Marcrum v. Marcrum, 181 N.J. Super. 361, 437 A.2d 725 (App.Div. 1981), appeal dismissed 93 N.J. 232, 460 A.2d 645 (1982). Neither is it a situation of a failure of a parent to return a child to his or her residence following visitation in another state. Compare Pozzi v. Pozzi, 210 N.J. Super. 522, 510 A.2d 123 (Ch.Div. 1986) and Middleton v. Middleton, 227 Va. 82, 314 S.E.2d 362, 369 (1984).