On appeal from the Superior Court of New Jersey, Chancery Division, Gloucester County.
Matthews, Ard and Polow. The opinion of the court was delivered by Polow, J.A.D.
This is an interstate custody dispute involving conflicting New Jersey and South Carolina rulings, both of which were violated by the surreptitious removal of the children from one state to the other. Both parents have been adjudicated in contempt for deliberate violations of custody orders, the mother in South Carolina and the father in New Jersey.
On May 7, 1978 the Superior Court of New Jersey, Chancery Division, Gloucester County, granted custody to the mother, in conflict with a July 30, 1975 order of the Richland County, South Carolina Family Court awarding custody to the father. In appealing the New Jersey determination, the father urges that his former wife participated in the South Carolina custody action and its decree is entitled to comity in this state as a matter of law.
A summary of the procedural developments leading up to this appeal is necessary to an understanding of the issues.
Diane and James Van Haren were married in Maryland on June 20, 1970. Shortly thereafter they moved to New Jersey where both children were born, James Jr. on December 16, 1970 and Paul on March 28, 1972. The marriage was stormy. On February 12, 1974, following a domestic dispute, the husband took the children from the marital home in Gloucester County to the nearby residence of his parents. After her repeated unsuccessful efforts to get the children, plaintiff wife sought custody and support in the Gloucester County Juvenile and Domestic Relations Court. Defendant also demanded custody in that action.
That dispute was heard on March 8, 1974, with both parties present and represented by counsel. Temporary custody was awarded to the wife in an oral opinion which mentioned that "children of tender years . . . are customarily placed in custody of their mother . . .." Provisions were made for visitation and support and the Division of Youth and Family Services was ordered to conduct an investigation to determine whether there had been evidence of child neglect.
Shortly after the entry of that custody order defendant husband took the young children and left the jurisdiction*fn1 thereby precipitating issuance of a warrant for his arrest. Plaintiff's efforts to locate her husband and the children were unsuccessful until August 1974, when they were discovered in South Carolina. But, before she could effect service of a writ of habeas corpus upon defendant, they disappeared again.
Plaintiff instituted divorce proceedings in New Jersey on August 13, 1974 demanding permanent custody of her children. (The prior Domestic Relations order had been for "temporary" custody.) On January 15, 1975 the Chancery Division ordered substituted service upon defendant. After defendant's default had been entered, a final hearing took place on June 4, 1975. Although the court was advised of the absence of defendant and the children from this State, the judge ruled that there was in personam jurisdiction over defendant based upon the prior temporary custody order and the continuing jurisdiction of the Juvenile and Domestic Relations Court for enforcement of that order. A judgment was entered dissolving the marriage between the parties and awarding child custody to the wife.
On May 9, 1975, while the Chancery Division action was pending but before the divorce judgment had been entered, defendant instituted a petition for divorce and custody in the Family Court of South Carolina. After plaintiff was personally served on June 9, 1975, she filed a timely answer and made an appearance through local counsel. Her attorney advised the South Carolina court of the final divorce judgment in New Jersey and the divorce demand was therefore stricken. However, the South Carolina court proceeded with custody hearings on June 24 and 25, 1975.
A social investigation was ordered concerning defendant, his living arrangements and his care and treatment of the children. No apparent effort was made to obtain an investigation regarding plaintiff in New Jersey. The report in South Carolina was generally favorable to defendant. The court there found that the children were well cared for physically and emotionally and concluded that their "best interests" would be served by allowing them to remain with their father. Reasonable visitation rights were provided for the mother but the court order mandated that she not remove the children from South Carolina. Nevertheless, under the guise of exercising her visitation rights, plaintiff took the children on August 23, 1975 and returned with them to New Jersey, whereupon an order for her arrest was issued in South Carolina.
Upon their return to New Jersey plaintiff kept the children's whereabouts from defendant. On an ex parte application of the paternal grandparents, dated August 25, 1975, the Chancery Division in Gloucester County declared the children wards of the State and ordered appropriate law enforcement agencies to attempt to locate them. The record fails to disclose what action was taken pursuant thereto. However, it is clear that plaintiff had remarried soon after the divorce judgment and her children were living in her new home as of August 1975.
Shortly thereafter defendant returned to New Jersey and sought to enforce the South Carolina custody decree. In November 1975 he appeared before the Gloucester County Juvenile and Domestic Relations Court to purge himself of contempt. He was ...