K.L.D. VS. J.D. (FD-03-0099-16, BURLINGTON COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-0970-16T2
K.L.D.,1
Plaintiff-Respondent,
v.
J.D.,
Defendant-Appellant.
__________________________
Submitted October 11, 2017 – Decided November 6, 2017
Before Judges Koblitz and Manahan.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Burlington
County, Docket No. FD-03-0099-16.
David Jay Glassman, attorney for appellant.
K.D., respondent pro se.
PER CURIAM
Defendant father, J.D., an active duty aviator in the United
States Navy stationed in New Jersey, appeals from the discretionary
1
We use initials because J.D. is facing criminal charges involving
his daughter. R. 1:38-3(c)(9).
determination that Canada should have exclusive jurisdiction over
the custody and parenting time disputes of the parties. We affirm
substantially for the reasons expressed by Presiding Family Judge
John L. Call in his oral opinion of September 26, 2016, the same
date the order was signed.
The parties were married in 2007 and remained in Florida
until 2013. Their first child, a daughter, was born in Florida
in 2010. J.D. was stationed in California later in 2013, where
the parties' son was born. The parties moved to New Jersey in
2015, when J.D.'s assignment changed. During the summer of 2015,
the parties separated, and on July 27, 2015, they entered into a
New Jersey consent order in the non-dissolution FD docket, which
provided for joint legal custody with plaintiff mother, K.D., as
the parent of primary residence. The consent order allowed her
to relocate with the children to Canada, and provided J.D. with
parenting time in both New Jersey and Canada. The children lived
for less than six months in New Jersey before moving to Alberta,
Canada in August 2015. J.D. indicates he intends to leave the
Navy in 2018, but plans to remain in New Jersey.
With regard to jurisdiction, the parties' consent order
states in paragraph fourteen:2
The parties acknowledge they do not have the
authority to confer jurisdiction on any
2
We reproduce this paragraph exactly as written.
2 A-0970-16T2
particular Court. As of the preparation of
the present agreement, the parties acknowledge
and agree that, pursuant to the UCCJEA,
codified at N.J.S.A. 2A:34-53, et seq., New
Jersey shall retain continuing, exclusive
jurisdiction of the custody and parenting
issues so long as Defendant remains in the
State of New Jersey. It is anticipated by the
parties that a divorce action will be filed
in the State of Florida, assuming Florida will
accept jurisdiction over the divorce action.
At that time, the parties agree to discuss
whether it is appropriate for jurisdiction
over matters pertaining to the children should
be reviewed.
Defendant then filed for divorce in Florida asserting he "is
a resident of the State of Florida for purposes of dissolution of
marriage." The parties agreed by consent that Florida did not
have jurisdiction over the child-related issues.
A Canadian warrant was subsequently issued for defendant's
arrest in connection with a criminal investigation into an alleged
sexual assault against his six-year-old daughter. Defendant
represented that the military was also conducting a concurrent
criminal investigation. Plaintiff filed an application in August
2016 for New Jersey to relinquish jurisdiction over the post-
divorce child-related issues to Canada. She provided a letter
from a Canadian attorney indicating Canada would accept
jurisdiction. Plaintiff pointed out that defendant had not at
that point exercised parenting time in New Jersey, but had spent
time with the children in Florida, where his parents reside.
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Defendant alleged that plaintiff would not permit visits in New
Jersey. It was unclear at the motion hearing whether defendant's
parenting time had been suspended by any other court in connection
with the criminal proceedings.
Judge Call addressed all eight factors of N.J.S.A. 2A:34-
71(b) governing the court's authority to decline jurisdiction
because New Jersey is an inconvenient forum. The provisions of
the statute cover foreign countries as well as states. N.J.S.A.
2A:34-57(a). The judge described how the facts in this case relate
to each factor. The children had lived in Canada for over a year
at the time plaintiff sought to transfer custody to Canada.
Information concerning their welfare was more accessible in
Canada. The parties' agreement also anticipated a possible change
of jurisdiction over the children's issues. In any event, consent
to jurisdiction is only one factor to be weighed in a
jurisdictional decision. See Peregoy v. Peregoy, 358 N.J. Super.
179, 184 (App. Div. 2003); N.J.S.A. 2A:34-71(b)(5).
Given the Family Part's special expertise, we must accord
particular deference to fact-finding in family cases, and to the
conclusions that logically flow from those findings. Cesare v.
Cesare, 154 N.J. 394, 412-13 (1998). As Judge Call recognized,
the agreement between the parties concerning jurisdiction left
open the likelihood of a reassessment given a change of
4 A-0970-16T2
circumstances. If J.D. were to go to Canada, he would have to
address the outstanding warrant, but he is not precluded from
entering Canada based on a conviction, as was true in S.B. v.
G.M.B., 434 N.J. Super. 463, 468 (App. Div. 2014).
We therefor affirm the thoughtful decision of Judge Call to
relinquish jurisdiction of the issues involving the children to
Canada.
Affirmed.
5 A-0970-16T2