On appeal from Superior Court of New Jersey, Chancery Division, Hunterdon County.
Michels, McElroy and J. H. Coleman. The opinion of the court was delivered by J. H. Coleman, J.A.D.
This action involves an interstate child custody dispute brought pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA). The pivotal issues presented are (1) whether New Jersey has jurisdiction to hear the case and (2) whether a plenary hearing is required to examine the merits of plaintiff's allegations. We answer yes to both questions.
A brief review of the procedural background and facts giving rise to this appeal is helpful to a resolution of the crucial issues presented. Plaintiff and defendant were divorced on January 31, 1977 in Texas. Custody of the two children born of the marriage was awarded defendant and plaintiff was accorded visitation rights. On June 1, 1979, the children went to Indiana to visit plaintiff through June 28 pursuant to plaintiff's court-ordered visitation. On June 28, 1979 plaintiff obtained an order for temporary custody from the Superior Court of Indiana. Defendant was duly served with a copy of that order. After a full hearing the Indiana court granted plaintiff custody of the two children on September 25, 1979. In March 1980 plaintiff was directed by his employer to relocate to the greater Philadelphia area to assume a new job. He moved to New Jersey in March or April 1980 with the two children. On April 2, 1980 the Indiana Supreme Court reversed the order changing custody, on the ground that the Indiana court lacked jurisdiction to modify the Texas custody decree.
On June 10, 1980 this lawsuit was filed by plaintiff seeking custody based upon alleged past and future abuse of the children. Annexed to the verified complaint were two reports of psychological evaluations and a hospital record detailing the wife's alleged alcoholic problem. The matter was heard by the court on September 26, 1980. The decision of the court was rendered on May 28, 1981. The judge dismissed plaintiff's complaint and order to show cause for lack of jurisdiction and, among other things, directed the production of the children in court on June 22, 1981 for delivery to defendant pursuant to
defendant's application for a writ of habeas corpus which the judge indicated he would sign and execute.
A notice of motion to stay the order of the trial judge and for the appointment of a guardian ad litem was filed with the Appellate Division on June 8, 1981. On June 19, 1981 an order granting the stay and denying the application to appoint a guardian ad litem was granted by us. Plaintiff has appealed from the entire order of the trial court. We accelerated the appeal.
The question of jurisdiction of the court to hear the dispute and the need for a plenary hearing are interrelated. The verified complaint contains broad allegations that an emergency exists. The nature of the alleged emergency is that if the children are returned to defendant mother, they will suffer irreparable harm. The trial judge rejected these allegations without a plenary hearing. In rejecting plaintiff's contention that there is need for emergency protection of the children, the trial judge stated:
I want to make it perfectly clear that these children had been in the State of Indiana from the period of June 1, apparently, through April of 1980, a period of almost one year, during which time they were in the husband's control. I find nothing there which would warrant a finding by me of an emergent need to protect the children.
The allegations here, in my opinion, are broad. In their singular aspect, none of them would constitute, in my opinion, an emergency. In their cumulus they might constitute a need to proceed under some protective umbrella.
But when I sat in matrimonials as long as I have, I am not moved either by the effect of those broad allegations. If in fact they are so, the appropriate place to put them to rest or to prove them -- and the appropriate place is to put them to rest in the State of Texas, namely where they are alleged to have occurred.
N.J.S.A. 2A:34-31 delineates when New Jersey has jurisdiction. Subsection a, paragraphs (2) and (3), are ...