Carton, Crahay and Handler. The opinion of the court was delivered by Handler, J.A.D.
This is a child custody case brought by the paternal grandparents to enforce an order for temporary custody pursuant to a decree of a Florida court. A hearing was held for the limited purpose of determining whether defendant, the child's natural mother, had been subject to the jurisdiction of the Florida court and whether there was any basis for invoking the jurisdiction of the New Jersey court to determine and award custody. The trial judge entered an order granting temporary custody to plaintiffs on the basis of the Florida decree but stayed that order pending appeal.
It appears that defendant and her husband (who is not a party in this suit) were married in New Jersey in 1970 and moved to Florida late in 1971. There they lived at the home of plaintiffs, defendant's in-laws, for about five months before moving to their own apartment and eventually to their
own house. Their son was born in March 1972, shortly before they left plaintiffs' home.
According to defendant, her relations with her husband and his family were most difficult. In March 1973, because her husband allegedly beat her during a family fight, defendant took her child and went to her mother's home in New Jersey. She stayed in New Jersey a month until her husband telephoned from Florida, telling her to "come on back; things are going to work out." When defendant and her child arrived in Florida they were met by her husband, who drove them to their house. She testified that when she went inside she noticed that the house had been virtually stripped bare of its contents. Her husband, who had been holding the baby, took him and drove off, leaving her in the empty house. A few moments later a sheriff's officer arrived and served her with a summons and complaint for divorce. Apparently her husband had also obtained an ex parte order granting him custody of their child.
A reconstruction of the ensuing procedural history is essential. It seems a hearing was held on April 23, 1973, shortly after defendant's arrival in Florida, at which the court ordered defendant's husband to return the child to defendant and also to restore the contents of their house, and to make support payments. By order dated August 8, 1973 the Florida court modified its previous order or orders and granted full custody to the husband; it provided that defendant was to have custody one day a week on her day off, and two evenings a week from 5 to 8 P.M. She was also ordered not to remove the child from the jurisdiction of the court. Thereafter, on September 10, 1973 the husband was held in contempt for denying defendant's visitation rights. On September 24 the court granted a motion of defendant to vacate the August 8 order and again ordered defendant's husband to make support payments; it also stated that the issue of custody would be determined at a hearing that day. A hearing was later held, and on October 5, 1973 the court awarded custody to defendant.
Visitation rights were granted the husband, although there was no specific prohibition against removing the child. It was further ordered that in the event defendant could not obtain sufficient financial assistance from her mother in order to quit her job, or her mother could not come to Florida (presumably to care for the child while defendant was at work), the child should be with the husband's family during defendant's working hours. Again the husband was found in contempt and sentenced to ten days in jail, but that sentence was stayed for 24 hours to give him an opportunity to make the support payments as ordered. Shortly thereafter, on October 17, the court again found the husband in contempt for failure to make payments for support and attorney's fees as previously ordered. He was given two days to comply or face incarceration. On October 26 defendant's motion to strike her husband's pleadings was granted "for the reason * * * that the husband had been in continuous and flagrant contempt of the orders of this court." Custody was ordered to remain in defendant subject to her husband's visitation rights, conditioned, however, upon payment of the arrearages.
Defendant then left with her child to come to New Jersey. At approximately the same time plaintiffs moved to intervene in the Florida proceedings and petitioned for custody. Defendant, though absent, apparently filed opposing papers (which do not appear in the record). On January 15, 1974 the court granted plaintiffs' motion to intervene and determined that defendant was "willfully and deliberately secreting" the child in defiance of the court's order of August 8, 1973 not to remove him from the jurisdiction of the court. (The court possibly overlooked the fact that the August 8 order had been vacated or supplanted by its orders of September 24 and October 5, 1973). It ordered the child surrendered on January 21, 1974 or it would issue a fugitive warrant for defendant's arrest and extradition. All the arrearages and future support payments were suspended.
Defendant did not surrender the child and on February 5, 1974 the court adjudged defendant to be in contempt of both its August 8 and January 15 orders, and seemingly on that basis, found that her actions "are detrimental to the health and welfare of the minor child * * *" and that she is an unfit mother. It proceeded to award temporary custody to plaintiffs, finding that they are suitable guardians and again stating "[i]t is the Court's opinion based on its observation of the wife that she is not a fit and suitable parent and it is detrimental to the health and well-being of the minor child to remain in his mother's care." The State's attorney was ordered to issue an arrest warrant for defendant and to seek extradition if necessary. Plaintiffs then brought this action to enforce that Florida order of February 5.*fn1
The trial judge ruled that defendant had subjected herself to the jurisdiction of the Florida court and that there was no reason for the New Jersey court to intervene, there being no "substantial change * * * other than the advancement of the age of the child and the maturity attending therewith." Accordingly, he directed the return of the child to plaintiffs in accordance with the Florida ...