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Bengali v. Haveliwala

Decided: August 17, 1984.

SAKINA BENGALI AND YAHYA BENGALI, PLAINTIFFS,
v.
MARYAM HAVELIWALA, DEFENDANT



Krafte, J.s.c.

Krafte

OPINION

This matter has been opened by this Court, sua sponte, to determine whether this Court shall maintain jurisdiction pursuant

to the Uniform Child Custody Jurisdiction Act, hereinafter referred to as the UCCJA, N.J.S.A. 2A:34-28 et seq., specifically N.J.S.A. 2A:34-31.

Technically, this Court proceeds under authority of Rule 4:6-2(a), "Lack of jurisdiction over the subject matter", a non-waivable defense. In Gilbert v. Gladden, 87 N.J. 275 (1981), the Court stated that:

By way of history, this matter was instituted by plaintiffs' Order to Show Cause with Temporary Restraints, dated June 13, 1984. A Complaint was filed simultaneously, seeking custody of Hozefa, natural son of the plaintiffs.

Hozefa, now thirteen years of age, was one of twin boys born to plaintiffs on December 12, 1970, in Pakistan, where plaintiffs were then citizens, though since becoming citizens of the United States. For reasons unnecessary for this determination, Hozefa was placed with Yahya Bengali's sister (defendant herein) and her former husband, for purposes of raising Hozefa. A false birth certificate was obtained by plaintiffs showing defendant and her former husband to be Hozefa's natural parents, who were, at that time, residents of Buffalo, New York. At two months of age, Hozefa was flown to Toronto, Canada, and thereupon brought into the United States.

Hozefa continued to live in the State of New York, basically on Staten Island, after the Haveliwalas were divorced in August, 1973. Hozefa attended private day school on Staten Island and, commencing in the second grade, attended a private school in Connecticut. Defendant resides in New York City and, prior to the entry of the Order to Show Cause, Hozefa's legal residence was with defendant, by virtue of a Judgment of Divorce entered by the Supreme Court of the State of New York on August 16, 1973, incorporating a Property Settlement Agreement which specifically gave "* * * full and exclusive

custody of the child of the marriage between the husband and the wife" to the defendant herein.

The aforesaid Order to Show Cause (issued by another judge) found that Hozefa, for the purposes of issuance of the Order to Show Cause, was the natural son of plaintiffs, that he resides with plaintiffs in Emerson, New Jersey, and that defendant was threatening to remove him from this State. Restraints were issued against removal and temporary custody awarded to the plaintiffs. The return date was June 28, 1984.

On the return date, the parties appeared in chambers, through their attorneys, who fully set forth their respective, conflicting positions. An oral order was issued entering an interlocutory injunction against removal, granting temporary custody to plaintiffs, and enjoining interference with such custody. Psychiatric examinations were ordered with plaintiffs advancing fees, visitation was ordered and a plenary hearing directed upon receipt of such medical reports, as well as a Probation Department investigation report. On June 29th, a written order was presented and signed, formalizing the court's oral rulings.

By pleading dated July 16, 1984, defendant filed a Notice of Motion for Leave to Appeal the interlocutory order of June 29th. Opposing papers were filed. Leave to appeal was denied. Jurisdiction was not retained by the Appellate Division. The Appellate Division directed expedition of psychiatric reports, in camera interview, and, before final determination, a consideration of New York jurisdiction.

This Court has, independently, examined this case in light of the UCCJA in general, and the jurisdictional question in particular. Since jurisdiction of the subject matter is crucial and indispensable to a valid determination, this Court finds that it may examine into and make a jurisdictional determination prior to an in camera interview and receipt of all psychiatric reports.

Where the Court lacks jurisdiction to grant the relief prayed, the bill or petition may be dismissed at any stage of the proceedings. Niland v. Niland, 96 N.J. Eq. 438

(Chan.Div.1924). See also Phila. Trust &c., Co. v. Merchantville, 74 N.J. ...


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