January 31, 1983
K.D. & W.D., DEFENDANTS-APPELLANTS.
On appeal from Superior Court, Chancery Division, Bergen County.
Before Judges Fritz, Joelson and Petrella.
The opinion of the court was delivered by JOELSON, J.A.D.
A daughter was born to plaintiff and his wife J.M. on December 29, 1978 in California where plaintiff and J.M. resided. Shortly thereafter J.M. became mentally disturbed. She was diagnosed as schizophrenic and was admitted to a mental institution from which she departed against medical advice.*fn1 From May 29, 1979 to July 23, 1980 the child lived in the home of J.M.'s sister, who also resided in California. Plaintiff consented to this arrangement. Being unemployed, he did not offer financial support for the child, although he visited her sporadically. In July 1980, because J.M.'s sister was encountering marital difficulties of her own, she communicated with defendants in New Jersey who agreed to take the child. Thus, the child lived in defendants' New Jersey home, without consent of plaintiff, during the summer of 1980. The child was returned to J.M's sister in September 1980 at the sister's request, but in January 1981 she again requested and obtained permission from defendants to return the child to their care in New Jersey. This also was apparently done without plaintiff's consent. The child has been with defendants in New Jersey continuously since January 1981.
Defendant K.D. is described in plaintiff's affidavit as J.M.'s mother. Actually, because J.M. became an orphan at an early age, she lived with defendants in New Jersey throughout her girlhood, and they were appointed her legal guardians when she was ten years of age. Thus, for the purposes of this opinion, they will be regarded as the parents of J.M. and the grandparents of the child.
Plaintiff instituted a California divorce action against J.M which was uncontested. On June 22, 1980 a Superior Court Judge of California signed an "interlocutory judgment of dissolution of marriage."*fn2 Attached to the judgment and made a part thereof was an agreement between the parties to the divorce action. Included in that agreement, along with the division of property, is the following provision:
Petitioner [J.M.] and Respondent [C.E.M.] seek joint-legal custody of the minor child. Respondent shall have physical custody of the minor child subject to Petitioner's reasonable rights.
No further adjudication as to custody appears in the interlocutory judgment (a printed form with boxes or blocks to be checked) beyond the incorporation of the agreement by reference.
On July 15, 1982 plaintiff brought an action in New Jersey against defendants demanding judgment "[g]iving full faith and credit to the interlocutory judgment for divorce. . . ." The trial judge, without plenary hearing, signed a judgment "giving full faith and credit to the judgment of June 22, 1982 entered in the Superior Court of California, County of Sacramento" and ordering that "custody of . . . the infant daughter of the plaintiff, is hereby given to plaintiff." This is defendants' appeal from that judgment. We reverse and remand.
The various states are, of course, bound to give full faith and credit to the judgments of other states. U.S.Const., Art. IV, § 1; 28 U.S.C., § 1738. We shall not deal with the question of whether an interlocutory judgment for custody is entitled to full faith and credit. Nor shall we reach the problem as to whether the incorporation of a custody agreement, which was arrived at solely between the parties to a divorce action without judicial consideration, constitutes a judgment of the court. However, the power of a forum state to modify even a final foreign custody decree consistently with the Full Faith and Credit Clause is well recognized. See New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S. Ct. 903, 91 L. Ed. 1133 (1947). "In order to handle custody litigation expeditiously, a broad, flexible view of jurisdiction has developed." Borys v. Borys, 76 N.J. 103, 124 (1978). "A custody dispute is more than a jurisdictional chess game in which winning depends on compliance with predetermined rules of play." E.E.B. v. D.A., 89 N.J. 595, 611 (1982).
In the case now under our review the custody dispute is not between the parties to the California divorce action, but between the child's father and her grandparents, the latter having presented to the trial court affidavits containing allegations which, if true, indicate that the child may be subjected to neglect if returned to her father in California. We note that the New Jersey trial judge did not avail himself of the opportunity granted by N.J.S.A. 2A:34-35d of communicating with the California court of "exchange information pertinent to the assumption of jurisdiction by either court with a view to assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties." It has been held that "when there is doubt whether a sister-state has continuing jurisdiction... the better practice would be to communicate with the courts of the sister-state." E.E.B. v. D.A., supra, 89 N.J. at 612.
However, apparently defendants' counsel in New Jersey did communicate with the California judge who signed the interlocutory judgment of divorce. Defendants' appendix contains a letter dated August 3, 1982 from that judge to defendants' counsel.*fn3 This letter informs counsel that the California judge had authorized release of the Family Court service report. The judge then added:
The report was not presented to or considered by me at the time of the interlocutory hearing. The judgment was stipulated and agreed between the parties.
Most importantly, the report of the California agency concluded that the child's best interest will be served by her remaining with defendants in New Jersey.
The transcript of the hearing before the trial judge indicates that he based his refusal to entertain jurisdiction not only upon the full faith and credit requirement, but also upon the Uniform Child Custody Jurisdiction Act (N.J.S.A. 2A:34-28 et seq.), adding that "[t]he Courts in California have the records of this child's school system." In this respect, we mention that the child was only about 3% years old at the time of the hearing and had been in New Jersey continuously about a year and a half prior thereto, and has attended nursery school in New Jersey.
The jurisdiction of New Jersey courts in matters of this nature is governed by N.J.S.A. 2A:34-31. It is provided by N.J.S.A. 2A:34-31a(1) that the Superior Court of New Jersey has jurisdiction to make a child custody determination by initial or modification decree if this State is the "home state of the child at the time of commencement of the proceeding. . . ." In definitions of the terms used in the act, "home state" is declared to mean "the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least 6 consecutive months. . . ." N.J.S.A. 2A:34-30e. We are aware that N.J.S.A. 2A:34-31b provides that under N.J.S.A. 2A:34-31a(1) the child's physical presence in this State is not alone sufficient to confer jurisdiction on this State. However, this provision is apparently designed to deal with a situation where the child has wrongfully been brought here. See Uniform Child Custody Jurisdiction Act, § 3 Comment, 9 U.L.A. 124 (1979). Such a situation does not exist in this case because the child was sent to New Jersey by the person to whom she had been entrusted, who was no longer able to care for her.
Furthermore, it is provided by N.J.S.A. 2A:34-31a(2) that New Jersey has jurisdiction if it is in the best interest of the child for this State to assume it because "the child and at least one contestant, have a significant connection with this State, and . . . there is available in this State substantial evidence concerning the child's present or future care, protection, training and personal relationships." This subsection also is applicable in this case. Here again we note that the child was not in New Jersey as the result of wrongdoing and, therefore, N.J.S.A. 2A:34-31b does not apply.
Additionally, N.J.S.A. 2A:34-31a(3) confers jurisdiction on this State if "[t]he child is physically present in this State and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected." In Marcrum v. Marcrum, 181 N.J. Super. 361 (App. Div. 1981), certif. granted and temporarily remanded to trial court, 89 N.J. 402 (1982), we stated:
We are satisfied that when children are residing in New Jersey with a parent for a significant period of time, and that parent alleges that the children will be mistreated and irreparably harmed if they are returned to the nonresident parent, New Jersey has and should exercise jurisdiction and conduct a plenary hearing to determine the merits of such allegations. The polestar in such cases is, as it should be, the best interest of the children. This was the intendment of UCCJA. [Uniform Child Custody Jurisdiction Act]. [at 365]
The custody dispute in its present context involving plaintiff and defendants has not been adjudicated in California. Nor are there "simultaneous proceedings" in another state which would require the procedures set forth in N.J.S.A. 2A:34-34. We are persuaded that the statutory provisions of the Uniform Child Custody Jurisdiction Act quoted above confer jurisdiction on New Jersey. Therefore, we remand the matter to the trial judge for a "best interest" hearing. The trial court "should, of course, make the most thorough investigation possible under the circumstances of this case." Borys v. Borys, 76 N.J. at 126.
Reversed and remanded for further proceedings consistent with the foregoing, we do not retain jurisdiction.