On appeal from the Superior Court, Chancery Division, Camden County.
Allcorn, Francis and Morton I. Greenberg. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
We deal on this appeal with a jurisdictional question under the Uniform Child Custody Jurisdiction Act, adopted in New Jersey in 1979. See L. 1979, c. 124; N.J.S.A. 2A:34-28 et seq. Disposition of this matter requires that its procedural history be set forth at some length.
The parties were married on January 31, 1969. Apparently they were then residents of New Jersey. Obviously they did not reside together for an extended period as they were divorced on November 4, 1971 on the ground that they had lived separate and apart in different habitations for a period of not less than 18 months and that there was no reasonable prospect of reconciliation. One child, L.V.F., was born of the marriage on September 19, 1969. Custody of the child was awarded to plaintiff wife. Defendant husband was granted the right to visit the child at plaintiff's home each Sunday between 3 and 6 p.m. Defendant was ordered to pay $20 support weekly for the child through the Camden County Probation Department.
Insofar as we can determine from the record, until 1976 there were no further proceedings between the parties in any court that are germane to this case. In 1976 plaintiff made application to the Chancery Division to be permitted to remove the child to the Township of East Berlin, Pennsylvania. Defendant at that time signed an instrument entitled "affidavit and consent to removal." The document recited that defendant had reviewed plaintiff's motion and supporting affidavit. It further set forth defendant's understanding that plaintiff was seeking the court's permission to remove the child from New Jersey to
the Township of East Berlin in Pennsylvania and that plaintiff wanted support payments sent to the new address. Defendant stated: "I have no objection to the application being made by the Plaintiff, and I consent to the removal of my daughter from the State." An order was then entered on October 12, 1976 in the Chancery Division permitting plaintiff to remove the child to East Berlin, Pennsylvania. The order provided that defendant would have visitation on a Saturday or Sunday from noon to 6 p.m. one day a month, in accordance with his work schedule.
In 1977 defendant moved to modify the visitation order. Notwithstanding the removal of the child to Pennsylvania, he filed the motion in the Superior Court of New Jersey, Chancery Division. Plaintiff filed an answering affidavit. She requested that the visitation be held at the home of her parents in Haddonfield, New Jersey. By order entered September 6, 1977 the court provided that defendant would have visitation one Saturday or Sunday each month in accordance with defendant's work schedule, between noon and 6 p.m. at the home of S.W., apparently considered a neutral person, in Medford Lakes, New Jersey, or at such other place upon which the parties could agree.
It is obvious that the order of September 6, 1977 was not sufficient to quiet the dispute between the parties. According to defendant's brief on this appeal, on January 17, 1978, he filed an application "to hold wife in contempt for her alleged failure to comply with the visitation order. A cross-application was made by wife."*fn1 The appendices do not include copies of the various moving papers. Nevertheless, there seems to be agreement that such motions were filed.
Defendant's application in New Jersey caused plaintiff to seek relief in Pennsylvania. According to an allegation in her brief on this appeal, she filed a petition on February 2, 1978 in the
Court of Common Pleas of Adams County, Pennsylvania, asking that Pennsylvania assume jurisdiction, that custody of the infant in plaintiff be confirmed, that defendant's visitation rights be established and that defendant be prohibited from removing the infant from Pennsylvania. The appendices on this appeal do not include a copy of the petition.
The matter was then heard on defendant's application in New Jersey. A conference held between the parties in chambers on February 24, 1978 resulted in an agreement being reached. Its thrust was that defendant would have visitation one day a month, either Saturday or Sunday, in Gettysburg, Pennsylvania. Further, the agreement took note of the pending Pennsylvania proceedings. While the parties did not expressly state that they would be dismissed, they did indicate that defendant need not appear in that state.
Following the proceedings of February 24, 1978 two orders were entered, one in Pennsylvania on April 5, 1978 and one in New Jersey on April 26, 1978. The Pennsylvania order recited that Pennsylvania had been plaintiff's and the infant's home state when the proceedings were commenced in that state. It further recited that New Jersey no longer had jurisdiction. Finally, it established a visitation schedule in conformity with the agreement reached in New Jersey. The New Jersey order established substantially the same visitation schedule. It also recited that the Pennsylvania court would act only if the New Jersey proceedings had been stayed. This seems not to have been accurate since Pennsylvania had already entered an order establishing visitation rights. Nonetheless, the parties apparently saw no need to clarify the jurisdictional confusion which then existed. ...