On appeal from the Superior Court, Chancery Division, Ocean County.
Matthews, Morton I. Greenberg and Ashbey.
[177 NJSuper Page 168] Plaintiff and defendant were married in Arizona on March 11, 1978. A child, Scott Stevens, was born to them on June 22, 1978. Defendant has resided in Arizona at all times since the marriage. Plaintiff, however, left defendant and Scott in Arizona on August 1, 1979. She came to New Jersey and established residence here with four children from a prior marriage. Scott continued to reside with defendant after plaintiff left him. On
September 27, 1979 plaintiff having returned to Arizona removed Scott from that state by taking him from a baby sitter.
Apparently in response to plaintiff's action defendant on the same day, September 27, 1979, filed an action for divorce in Arizona in the Superior Court, Maricopa County. He sought custody of Scott in his complaint. On September 27, 1979 the Arizona court issued an injunction which restrained both parties from removing Scott from that state during the action.
On October 25, 1979 plaintiff brought this New Jersey action in the Superior Court, Chancery Division. On November 15, 1979 plaintiff was served with the Arizona pleadings including the injunction. On November 26, 1979 defendant was served in Arizona with a summons and complaint in the New Jersey action.
Both parties have actively litigated the actions in each state. Plaintiff filed an answering pleading in Arizona which asserted that Arizona did not have jurisdiction to determine custody of Scott. That defense was stricken on February 20, 1980. On April 16, 1980 the Arizona court granted defendant temporary custody of Scott. On August 29, 1980 the Arizona court reaffirmed its jurisdiction and directed plaintiff to deliver Scott to defendant. We were advised at oral argument that the Arizona action is still pending as a contested case and that no final judgment has been entered there.
Defendant moved in New Jersey to dismiss the action here. Plaintiff moved for temporary custody of Scott. The court heard oral argument on plaintiff's motion on May 15, 1980. Additionally the court also considered defendant's jurisdictional objections at that time. The motion judge after an analysis of the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-28 et seq., L. 1979, c. 124, effective July 3, 1979 (hereinafter called the "Act"), determined that the Superior Court of New Jersey should not exercise jurisdiction in this action. He made this determination without a plenary hearing solely on the basis of the record. He indicated that the criteria for jurisdiction under
the Act pointed to Arizona and that the purpose of the Act was to avoid duplicate custody litigation and removal of a child to another state to establish jurisdiction. Accordingly an order dismissing this action was entered May 27, 1980. Plaintiff appeals from that order.
The Chancery Division ". . . has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This State (i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State; or
(2) It is in the best interest of the child that a court of this State assume jurisdiction because (1) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence concerning the ...