On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
Matthews, Ard and Polow. The opinion of the court was delivered by Polow, J.A.D.
Plaintiff stepfather appeals from the determination of the trial court denying his request to adopt the children of his present wife over the objection of her former husband, the children's natural father. Plaintiff's wife consented and urged the court to permit the adoption. Defendant, the children's natural father, counterclaimed for custody or, in the alternative, reasonable visitation rights.
The natural parents were married in Indiana in 1970 and continued to reside in that state for about six years. Two
children were born of the marriage, a daughter in March 1971 and a son in November 1973. Having encountered marital difficulties, the parties separated in July 1975. It was shortly thereafter, in September 1975, that plaintiff met his present wife, the children's mother.
For several months after the separation, the natural father remained in Indiana and visited with his children fairly regularly. An Indiana divorce judgment, dated December 23, 1975, provided for custody in the mother and gave defendant the right to visit his children on Sunday afternoons and overnight visitation privileges two weeks a year. The children were not to be relocated to any place more than 100 miles from Bremen, Indiana, their home town.
In March 1976 defendant accepted a transfer of employment which required him to move to North Carolina. His former wife refused his request to permit his parents to exercise his visitation rights. Instead, she sought his consent to removal of the children to New Jersey but he refused. Nevertheless, the former wife obtained an ex parte order, without notice to defendant, allowing her to remove the children on the basis of an alleged emergency. In support thereof, her petition merely recited that her former husband left Indiana for employment in North Carolina, that she intended to marry a man who resides and works in New Jersey and that she "must move forthwith." The former wife ultimately married plaintiff on November 14, 1976.
Upon defendant's application for review of the previous ex parte order, the Indiana court scheduled a hearing for May 27, 1976 and required the former wife and children to be present. Her attorney appeared and obtained a postponement until August 1976 upon the representation that they would be in Indiana at that time. However, neither the former wife nor the children appeared as promised. Consequently, she was adjudged in contempt.
Defendant telephoned his former wife to obtain permission to visit his children in New Jersey. He was permitted to spend several hours with the children in the presence of his former
wife and her present husband, the plaintiff. Defendant continued telephone communications with his children for a time after he moved back to Indiana in August 1976. However, he was unable to reach his former wife or the children after November 1976. Apparently her phone number had been changed and he was not able to obtain her new, unlisted number.
Defendant retained counsel in New Jersey and wrote to his former wife in December 1976 stating, "I do not wish to make trouble for you, only to have a satisfactory visitation agreement . . . . He also expressed his intention to do whatever was necessary to see his children. At some time in 1977 defendant ceased payments of the $40 a week support to the probation department in Indiana and instead deposited the funds in a bank account. ...