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Swire v. Swire

Decided: June 12, 1985.

MONICA WENDY SWIRE, PLAINTIFF-APPELLANT,
v.
KENNETH M. SWIRE, DEFENDANT-RESPONDENT



On Appeal from the Superior Court, Chancery Division, Family Part, Middlesex County.

Matthews, Furman and Havey. The opinion of the court was delivered by Furman, J.A.D.

Furman

Plaintiff appeals from dismissal of her action seeking custody of the sons of the marriage between the parties, one born in 1973 and the other in 1975. The dismissal was for lack of jurisdiction under the Uniform Child Custody Jurisdiction Act (Uniform Act), N.J.S.A. 2A:34-28 et seq. Defendant has not entered an appearance or filed any pleading or appellate brief; he did communicate by letter to the trial court urging that New York was the proper forum.

The parties were married in New York in 1973. Plaintiff moved to New Jersey with the two children in 1978 and, later

that year, filed an action for divorce in New York also seeking custody. She was granted a divorce and custody; a supplemental order granted defendant visitation on alternate weekends and certain religious holidays. The children resided with their mother in New Jersey, except for one winter in Florida, until April 1984. In 1982 defendant brought an action in New York for custody and abatement of child support arrearages because of denial of his right of visitation.

Plaintiff appeared in the New York proceeding. Her motion for dismissal on jurisdictional grounds was denied. Upon consideration of the testimony before him, including the report of a psychiatrist, the New York judge transferred custody to defendant because of plaintiff's lack of cooperation with the visitation order. Plaintiff was granted a stay of the order transferring custody until she perfected her appeal. The stay expired and she turned the children over to defendant's custody on April 1, 1984. She subsequently perfected her appeal.

In June 1984 plaintiff was granted visitation rights by the New York court. She took the children with her to New Jersey for ten days' visitation in late August. Concerned that they were upset and unhappy in New York, plaintiff arranged that a psychiatrist and a psychologist separately examine them. The psychiatric and psychological reports were unequivocal that plaintiff should be the custodial parent.

The psychiatrist concluded:

It is my opinion that both Jonathan and Philip are suffering from stress related emotional illnesses. Each separately expressed feelings of sadness, anger and helplessness at having been separated from their mother and forced to live with their father, whose behavior they experienced as neglectful and oppressive. It seems most likely that a continuation of this situation will lead to a worsening of their maladjustment into a more severe and permanent emotional illness with detrimental consequences to their further development and maturation.

The psychologist concluded:

Jonathan and Philip Swire are in imminent danger of serious psychological deterioration and must be immediately removed from their father's home and returned to the custody of the mother ...


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