On appeal from Superior Court, Chancery Division, Passaic County.
Lora, Michels and Larner. The opinion of the court was delivered by Larner, J.A.D.
This is an appeal by the mother of two children from a summary judgment in favor of the father in a custody proceeding. The trial judge refused to invoke jurisdiction to conduct a plenary hearing on the merits of the custody dispute.
This determination represents the culmination of years of litigation between the parents in three jurisdictions. A divorce judgment was entered in March 1972 in favor of the husband in the State of Michigan, wherein custody of the two children, born in 1966 and 1968, was awarded to the father. They remained with him in Michigan until February 1973. By this time both the father and mother had remarried. Shortly after her marriage the mother, without the father's knowledge or consent and in violation of the Michigan court order, brought the children to New York State where she set up a marital home with her new husband who was employed there.
Although the mother notified the father that the children were with her and that she did not intend to return them, she refused to reveal where she or they were located. After nine months of investigation, the father ascertained in December 1973 that the children were living in Oswego, New York, with their mother. Thereafter he visited them on several occasions in 1974 in the presence of the mother and her new husband, and he was permitted to take the children to Michigan for a visit after posting an appropriate bond.
When the father finally discovered the whereabouts of the children, the mother immediately instituted an action for custody in the New York courts. The husband appeared and contested her right to custody. After a plenary hearing the judge of the Family Court, on February 6, 1975, granted custody to the mother pursuant to its parens patriae jurisdiction upon a finding that there had been an extraordinary change of circumstances and that it was in the best interests of the children that they remain in her custody.
The husband took an appeal from this determination,*fn1 and on April 14, 1977 the Appellate Division of the Supreme Court of New York reversed in a 3-2 decision, holding that custody should remain with the father pursuant to the prior Michigan custody judgment. In re Susanne U.N.N. v. Rudolf O.O. , 57 A.D. 2d 653, 393 N.Y.S. 2d 472.
While this appeal was pending before the Appellate Division of the State of New York, the mother's husband, employed by IBM, was transferred to New Jersey and they moved here with the two children. In addition, during the pendency of the appeal and before its determination, the mother filed a complaint in the Chancery Division in April 1976 seeking a judgment of the New Jersey court granting custody to her. After the decision of the Appellate Division of New York she also processed an appeal to the Court of Appeals of New York, and custody of the children remained with her pursuant to a stay pending the appeal.
In response to the mother's New Jersey complaint, the father filed an independent complaint in the Chancery Division seeking an adjudication granting him custody pursuant to the order of the Michigan court.
Prior to the final resolution of the New Jersey litigation there were proceedings relating to child support and visitation of the children with the father in Michigan. During one of these hearings Judge Susser, noting that both parties had consented to jurisdiction, ordered that the children be delivered to the husband for visitation in Michigan and that the Passaic County Probation Department undertake an investigation relating to the question of custody.
On July 1, 1977 the father moved for summary judgment before Judge Susser based upon the determinations of the Michigan court and the Appellate Division of the State of New York. The motion was denied because of the pendency
of the appeal in the New York Court of Appeals, with the judge concluding that the New Jersey court should await the decision of the highest court of New York before resolving the issue of custody. In doing so Judge Susser noted that New Jersey had jurisdiction to determine the custody question in view of the bona fide residence of the children and the mother in this State, and the fact that the children had spent a substantial part of their formative years in the mother's custody. He particularly observed, ...