B.D. v. D.A.B. ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1062-23
B.D.,1
Plaintiff-Appellant,
v.
D.A.B.,
Defendant-Respondent.
_________________________
Submitted September 12, 2024 – Decided September 18, 2024
Before Judges Sabatino and Berdote Byrne.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Essex County, Docket
No. FM-07-2462-23.
Adams & Caughman LLC, attorneys for appellant
(Lesley Renee Adams and Harriet E. Raghnal, of
counsel and on the briefs).
D.A.B., respondent pro se.
PER CURIAM
1
We use initials of the parties to protect the privacy interests of the child. R.
1:38-3(d).
This Family Part appeal involves the application of the Uniform Child
Custody Jurisdiction and Enforcement Act ("UCCJEA"), N.J.S.A. 2A:34-53 to
-95, in the context of a custody dispute involving a child's father who lives in
New Jersey and a child and mother who reside in New York.
For the reasons that follow, we conclude the Family Part appropriately
applied the statute and deferred to the jurisdiction of the New York courts as the
child's "home state" during the relevant period. We therefore affirm the Family
Part's order declining jurisdiction, without prejudice to potential future
proceedings that may be appropriate.
I.
Before we discuss the salient background of this case, a brief discussion
of the UCCJEA is useful.
"The UCCJEA governs the determination of subject matter jurisdiction in
interstate, as well as international, custody disputes." Sajjad v. Cheema, 428
N.J. Super. 160, 170 (App. Div. 2012). New Jersey's version of the UCCJEA is
modeled after the uniform statute promulgated by the National Conference of
Commissioners on Uniform State Laws in 1997. Griffith v. Tressel, 394 N.J.
Super. 128, 138 (App. Div. 2007). The uniform statute has been adopted by all
fifty states. Ibid.A-1062-23
2
The UCCJEA has important practical objectives affecting the welfare and
legal status of children. The statute "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." Ibid. The goal of the statute is to resolve
disputes over which court has jurisdiction over a child's custody expeditiously
and definitively. See N.J.S.A. 2A:34-59 (jurisdictional questions in child
custody proceedings "shall be given priority on the calendar and handled
expeditiously").
The UCCJEA, specifically N.J.S.A. 2A:34-65(a), "is the exclusive
jurisdictional basis for making a child custody determination by a court of this
State." N.J.S.A. 2A:34-65(b). Subsection a. empowers our courts with
jurisdiction if New Jersey is the child's "home state."2 Further, New Jersey
courts have jurisdiction if the child has no home state or the home state has
declined jurisdiction and the child has a "significant connection" with New
Jersey, if the child's home state declines jurisdiction after finding New Jersey is
2
"'Home state' is defined as the state in which a child lived with a parent or
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.
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the more appropriate forum, or if no state would otherwise have jurisdiction.
N.J.S.A. 2A:34-65(a)(1) to (4).
A temporary absence generally will not affect the child's home state status.
"The statutory definition of 'home state' allows the child's 'temporary absence'
from the home state within the six month period." Sajjad, 428 N.J. Super. at
173 (quoting N.J.S.A. 2A:34-54). In considering whether an absence is
temporary, courts have weighed several factors: "(1) the parent's purpose in
removing the child from the state, rather than the length of the absence . . . ; (2)
whether the parent remaining in the claimed home state believed the absence to
be merely temporary . . . ; (3) whether the absence was of indefinite duration,
. . . and (4) the totality of the circumstances surrounding the child's absence."
Ibid. (citations omitted).
"If New Jersey is the child's home state, the next inquiry [under the
UCCJEA] is whether custody proceedings had been commenced in another state,
properly exercising jurisdiction, which issued an initial custody determination.
N.J.S.A. 2A:34–70a." Id. at 174. "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.
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N.J.S.A. 2A:34–70b." Ibid. "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." Ibid.II.
Given this backdrop, we summarize the factual and procedural
circumstances of this case that are pertinent to the UCCJEA's application.
Background Facts
The parties were married in Guyana in 2018. Plaintiff B.D., the child's
father, is a dual citizen of Guyana and the United States. Defendant D.A.B., the
child's mother, is a citizen of Guyana.
Defendant moved into plaintiff's house in New Jersey in 2020. Their
child, J.D., was born in May 2020 in New Jersey. J.D. lived in plaintiff's home
until August 2020, when defendant and the child moved to Guyana with
plaintiff's consent. Defendant and J.D. resided in Guyana except for two one-
month visits to plaintiff in New Jersey in 2021.
Defendant and J.D. visited plaintiff again in New Jersey in August 2022.
Plaintiff purchased plane tickets for them to return on September 1 to Guyana.
Instead of boarding the plane, and allegedly out of fear plaintiff would renege
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on his promise to pursue United States citizenship for her, defendant took the
child to family members in Maryland for three months and then moved to New
York in January 2023, where they thereafter remained except for a 17-day trip
to Florida in May.
The New Jersey and New York Separate Filings and Proceedings
On May 8, 2023, plaintiff filed in the Family Part a complaint for divorce
against defendant, along with an order to show cause ("OTSC"), seeking
temporary physical custody of the child. The OTSC was denied without
prejudice because plaintiff was then unable to serve defendant.
Defendant was not served with the divorce complaint and OTSC until
October 5, 2023, when defendant met plaintiff, at his invitation, for dinner in
New Jersey. The parties left the child during the dinner with plaintiff's parents
in New York, after which he refused to return the child to defendant.
Defendant did not attend an initial custody hearing on October 10 before
the Family Part. Instead, defendant petitioned a New York state court for full
custody of J.D., also on October 10. The New York court entered an OTSC
requiring the parties to appear on October 19 and obligating the parties to share
legal and physical custody of the child until further order of the court and
ordering J.D. not be removed from New York without that court's consent.
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At the Family Part hearing on October 10, conducted remotely through
Zoom, only plaintiff and his counsel appeared. The following day, October 11,
the Family Part entered an order finding defendant was served on October 5 but
did not appear at the October 10 hearing. The court ordered the parties to keep
J.D. in New Jersey until further direction from the court, granted temporary
residential custody of J.D. to plaintiff, and ordered defendant to show cause on
November 2 why the court should not grant permanent custody to plaintiff.
On October 19, the New York judge held a hearing concerning defendant's
OTSC. Defendant was present and represented by counsel, counsel for the child
appeared after appointment by New York State, and plaintiff's counsel appeared
"for the sole purpose of disputing jurisdiction." Plaintiff did not personally
attend. After hearing argument from counsel for the parents and child, the New
York judge continued the hearing to the following day, to have an opportunity
to confer with the Family Part judge about the status of the New Jersey
proceedings.
The Two-Judge Joint Hearings
On October 20, the Family Part judge and the New York judge jointly
heard argument from the parties concerning jurisdiction under the UCCJEA .
Upon perceiving that relevant facts were disputed, the judges accordingly
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ordered the parties to submit certifications clarifying when and where the child
and parents had respectively resided in the past five years.
After receiving the parties' factual submissions, the Family Part judge and
the New York judge presided over a remote joint hearing on November 2 to
decide the proper forum to determine custody. After hearing argument, the
judges jointly ruled that the undisputed facts presented in the parties'
certifications demonstrated that New York, not New Jersey, was the child's
home state under the UCCJEA. That same day, the Family Part judge issued a
two-page order dismissing the custody claim from plaintiff's complaint "because
New York is the minor child's home state under the UCCJEA." The New Jersey
court retained jurisdiction, however, over plaintiff's claim for divorce.
Reciprocally, the New York judge entered an order on November 2 after
the joint hearing. That order repeated the joint finding that New York is the
child's home state under the UCCJEA because the affidavits submitted by both
plaintiff and defendant contained "little, if any, factual dispute between the
parties with respect to where the child has lived with petitioner since [] birth. "
In this regard, the New York judge observed that the child was born in May 2020
and has lived with his mother since birth—primarily in Guyana, "with limited
periods in New Jersey until August 2022." "Thereafter, the child was in Florida
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and Maryland briefly, before settling in Albany County, New York in [January]
2023."
The New York judge retained jurisdiction to determine custody of the
child after finding that New York was a more appropriate forum than New Jersey
under N.Y. DOM. REL. § 76-f (McKinney 2010), part of New York's UCCJEA,
and our parallel N.J.S.A. 2A:34-71. The New York judge specifically noted that
the father's filing of the New Jersey complaint before the mother's filing of the
New York petition was not dispositive of UCCJEA jurisdiction, because N.Y.
DOM. REL. § 76-e and the parallel terms of N.J.S.A. 2A:34-70 empowered New
York to retain jurisdiction after making the initial custody determination.
Plaintiff's Appeal
On December 7, plaintiff appealed the Family Part's November 2, 2023
order dismissing plaintiff's claim for custody and severing it from his claim for
divorce. On appeal, plaintiff asserts the Family Part erred in (1) denying the
initial OTSC, and (2) denying plaintiff a hearing to determine the home state of
the child.
Subsequent Developments in the New York Court
While the present appeal was pending, it came to our attention that further
relevant developments occurred in the New York court concerning the parties
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and J.D. We take judicial notice of those developments. N.J.R.E. 201.
On June 24, 2024, the parties executed a consent order, entered by the
court, where they agreed to share both legal and physical custody of J.D. Among
other things, the consent order contemplates defendant moving with the child to
East Orange, New Jersey. Both parents are prohibited from "mov[ing] the child
beyond 15 miles of the border of East Orange" without the consent of the other
parent or the New York court "from the time the Mother and child settle in New
Jersey." Further, "once the Mother and child settle in East Orange," a specific
schedule of weekly exchanges applies. Lastly, "in the event the parties reside
in different school districts, the child's school shall be decided by the New Jersey
school 'report card', the child's aptitude/needs, and the child's wishes are to be
taken into consideration." The order does not contemplate any residence in New
York. Except for New Jersey, the only location discussed in the order is Guyana
(if defendant returns to Guyana, she is entitled to at least six weeks of parenting
time each summer and on particular holidays).
The Mootness Inquiry
Given these developments in the New York court, our clerk's office
contacted the parties to solicit their positions on whether the present appeal was
now moot. By letter from his counsel, plaintiff objected to dismissal of his
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appeal as moot, asserting this court should still decide (1) whether New Jersey
should have denied the OTSC, and (2) whether plaintiff had been entitled to a
hearing to determine the home state of the child. Plaintiff urges this court to
decide the merits of the appeal to provide trial courts with clarifying guidance
on application of the UCCJEA. Defendant did not respond to the mootness
inquiry.
III.
As a threshold matter, we briefly consider whether the appeal should be
dismissed on mootness grounds. It is readily apparent that the consent order
entered into by the parties and issued by the New York court resolves, at least
for the present, the child's custody. There is no indication in the record that
plaintiff reserved and pursued a right to appeal New York's exercise of
jurisdiction. Moreover, the terms of custody and parenting time specified in the
New York order were adopted with plaintiff's consent. There is nothing at
present to litigate. As such, there is no unresolved controversy for us to decide.
In re Congressional Districts by N.J. Redistricting Comm'n, 249 N.J. 561, 570
(2022).
With that said, we choose to address nonetheless the issues posed by
plaintiff. We have the prerogative to do so in our discretion under our case law.
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In re J.I.S. Indus. Serv. Co. Landfill, 110 N.J. 101, 104 (1988). We exercise that
discretion because the issues are fully briefed, and our analysis may be
beneficial to the parties (one of whom we note is self-represented) and the
Family Part going forward.
In addressing plaintiff's claims that the Family Part erred in declining
jurisdiction and dismissing the OTSC, well-settled principles guide our
appellate review of such matters. Subject matter jurisdiction under the UCCJEA
is a question of law subject to "de novo review." Sajjad, 428 N.J. Super. at 170.
See also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995) ("A trial court's interpretation of the law and the legal consequences
that flow from established facts are not entitled to any special deference").
While the finding of facts regarding jurisdiction could have triggered deferential
review if based on live testimony or credibility findings, the jurisdictional
decision under review in this case was based on undisputed facts in certifications
submitted by the parties. Accordingly, we review this subject matter
jurisdictional decision de novo as a pure question of law. State v. Coviello, 252
N.J. 539, 552 (2023). Applying those standards and the legal requirements of
the UCCJEA, we conclude the Family Part did not err, and that no unilateral
evidentiary hearing in this state was required or appropriate.
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As both judges correctly found at the November 2, 2023 joint hearing,
New York was J.D.'s home state at the time of the proceeding. The child had
resided in New York for more than six months. J.D. had never resided in New
Jersey for any appreciable period beyond the two months immediately following
his birth.
Apart from the home state analysis, New York alternatively was the forum
with the more "significant connection" with the child. N.J.S.A. 2A:34-65. If
the parties had followed their pre-September 2022 plan, the child presumably
would have resided in Guyana for the six months preceding the commencement
of this action. Guyana has not asserted jurisdiction, nor has any party attempted
to obtain such jurisdiction, so New York was arguably empowered to assume
jurisdiction under the "significant connection" alternative. See Defrank v. Wolf,
179 A.D.3d 676, 677-78 (N.Y. App. Div. 2020) (where "the child did not have
a home state," New York could exercise jurisdiction based on the "significant
connection" between the forum and the child). Where a child has no home state,
a court may exercise jurisdiction by finding the child and at least one parent
"have a significant connection with this state other than mere physical presence,"
and "substantial evidence is available in this state concerning the child's care,
protection, training, and personal relationships." N.Y. D OM. REL. § 76(b); see
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also N.J.S.A. 2A:34-65 (mirroring the NY statute); B.G. v. L.H., 450 N.J. Super.
438, 453 (Ch. Div. 2017) (finding a "significant connection" with this state
where a parent exercised parenting time in New Jersey and "substantial
evidence" given series of expert exams and reports conducted in New Jersey
during the divorce proceedings).
We reject plaintiff's argument that home state jurisdiction in New York
was nullified by defendant's conduct in moving the child to New York rather
than flying with him to Guyana as plaintiff had anticipated. If defendant had
moved with the child to Guyana and remained there for six months, plaintiff
would still not have been able to establish jurisdiction in New Jersey. To the
extent plaintiff contends defendant's conduct in not flying to Guyana is
"unjustifiable conduct" under N.J.S.A. 9:2-2, that decision had no bearing on
New Jersey’s jurisdiction over custody of J.D.
Further, we reject plaintiff's claims of procedural deficiencies. To the
contrary, we conclude the Family Part judge followed exactly the correct
procedure under the UCCJEA in conferring with the judge from the other state
and in participating jointly with that judge in a custody proceeding. See N.J.S.A.
2A:34-62.
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Hence, we affirm the rulings by the Family Part under the circumstances
presented. That said, our determination is without prejudice to other future
proceedings that may become appropriate in New Jersey as the parties carry out
the terms of their consent order.
The New York court's non-appealed exercise of jurisdiction gave New
York "exclusive, continuing jurisdiction over the determination." N.J.S.A.
2A:34-66(a). Such jurisdiction extends until either New York determines the
child no longer has "a significant connection" to New York, or New York or
another state "determines that the child, the child's parents, and any person
acting as a parent do not presently reside in [New York]." N.Y. D OM. REL. §
76-a(1); accord N.J.S.A. 2A:34-66.
N.J.S.A. 2A:34-66 requires plaintiff to continue to litigate any custody
disputes in New York so long as defendant or the child continue to reside there.
Should either parent and the child reside in New Jersey for the proscribed
statutory period, plaintiff could seek modification of the custody determination
under N.J.S.A. 2A:34-66(a)(2).
In addition, if either party should contend the other parent is not
complying with the terms of the New York consent order, that parent could move
here in New Jersey to enforce the terms of the parties' settlement agreement as
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"[a] court of this State may utilize any remedy available under other law of this
State to enforce a child custody determination made by a court of another state."
N.J.S.A. 2A:34-77(b). Our courts have a duty to enforce such agreements so
long as "the latter court exercised jurisdiction in substantial conformity with this
act." N.J.S.A. 2A:34-77(a). See, e.g., Neger v. Neger, 93 N.J. 15, 27-38 (1983)
(remanding for a trial court to enforce a custody order issued by a California
court that substantially conformed with the UCCJEA's home state analysis).
Affirmed.
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