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E v. T

Decided: June 29, 1973.

E AND WIFE, PLAINTIFFS,
v.
T AND WIFE, DEFENDANTS



Fundler, J.J.D.R.C., Temporarily Assigned.

Fundler

[124 NJSuper Page 538] The present action was instituted on January 3, 1973 when plaintiffs filed with this court their verified complaint and supporting affidavits seeking custody of the infant children S and D and other ancillary relief. They thereupon obtained an order to show cause directing defendants to return said children immediately to plaintiffs' care and custody, and restraining them from taking the children from plaintiffs' custody without the order of this court. The order to show cause was returnable on January 26, 1973 and it, together

with the verified complaint and supporting affidavits, was personally served upon defendants on January 4, 1973 in Las Vegas, Nevada.

Defendants have now moved before this court for an order dismissing the complaint and discharging the order to show cause, asserting that the court lacks jurisdiction over the subject matter, the person of defendants and the infant children; that there was insufficiency of process, and on the basis of comity and forum non conveniens. The original return date of the order to show cause was adjourned by consent and the parties agreed to consolidate the hearing on the order to show cause and defendants' motions. All parties have filed detailed affidavits, supporting documents and extensive legal briefs. Initial oral argument was heard on April 30, 1973 and the matter was thereafter continued for several weeks to permit the filing of additional papers and briefs with the court. Further oral argument was waived and the matter is now before the court for decision on the documentation filed.

The essential facts necessary for a determination of the issues presented are neither complicated nor materially disputed. Plaintiff-father, age 49, has been married to the coplaintiff since 1955. Defendant-mother, age 25, has been married to the co-defendant since February 1972. Plaintiff-father and defendant-mother are the natural parents of the two illegitimate infant children S and D whose custody is in dispute. The first child S was born on April 20, 1966 and the second child D was born on June 24, 1967. Both children were born in the same hospital in Philadelphia, Pennsylvania, under plaintiff-father's last name which the defendant-mother had assumed upon admission to the hospital for each childbirth.

It is undisputed that since October 1967 both children have been under the continuous care and custody of plaintiff-father and his wife who have resided here in New Jersey. Between October 1967 and September 1970 defendant-mother saw the children on but three occasions and thereafter

at infrequent intervals until December 1972. On December 26, 1972 defendants visited the home of plaintiffs in New Jersey and under a subterfuge took physical control of the children and surreptitiously removed them from the State of New Jersey to their home in Las Vegas, Nevada.

After service of the papers in this proceeding upon defendants in Nevada, plaintiffs filed a petition for a writ of habeas corpus in the Nevada courts on January 8, 1973 seeking to enforce the interim relief granted by this court. On January 23, 1973 the Nevada court granted plaintiffs' petition, and defendants in this action were ordered to immediately deliver the children S and D to the natural father, plaintiff in this action. In that decision, Judge Michael J. Wendell, sitting in the Eighth Judicial District Court of the State of Nevada, said.

This court believes that the children, having lived in the State of New Jersey for all this period of time, that the proper forum for hearing this matter is the State of New Jersey. And this court defers to that state. The Petition for the Writ is granted.

Defendants filed an immediate appeal from this decision, and upon the posting of a bond, Judge Wendell's order was stayed the same day it was made. Plaintiffs' subsequent efforts in the Nevada courts to dissolve the order staying the writ granted by Judge Wendell have been futile and the case continues on its appellate course in the Nevada courts.

The merits of the custodial issue and the ancillary relief framed in the complaint are not now before this court. It is basic, however, that in all matters relating to the custody of minor children the paramount consideration of this and any other court is and should be the safety, happiness, physical, mental and moral welfare of the child. Fantony v. Fantony , 21 N.J. 525 (1956); Schwartz v. Schwartz , 68 N.J. Super. 223 (App. Div. 1961); Sheehan v. Sheehan , 38 N.J. Super. 120 (App. Div. 1955); Scanlon v. ...


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