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Santucci v. Santucci

Decided: December 22, 1987.

LUCINDA A. SANTUCCI , PLAINTIFF-RESPONDENT, CROSS-APPELLANT,
v.
JOHN J. SANTUCCI, DEFENDANT-APPELLANT, CROSS-RESPONDENT



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County.

O'Brien, Havey and Stern. The opinion of the court was delivered by O'Brien, J.A.D.

O'brien

In this matrimonial action both parties appeal from an order permitting plaintiff to remove the parties' children from New Jersey to El Salvador and terminating defendant's duty to pay child support. We affirm in part and reverse in part.

The parties were divorced on September 19, 1983. The judgment provided:

A. The parties shall have 'joint custody' of the children of the marriage JOHN JOSEPH, JR. and JASON DAVID. 'Joint custody' shall be defined as providing each of the parties with equal rights in all decisions regarding the health, education and welfare of the children. The plaintiff-wife shall continue to be the residential-custodial parent of the children and the children shall be domiciled with the plaintiff-wife, subject to liberal and reasonable rights of visitation of the defendant-husband, which shall include overnight, alternate or split holidays, extended summer vacation, school recesses, all as agreed upon between the parties. . . .

The husband was ordered to pay child support of $70 per week commencing in October 1983.

On July 9, 1986 plaintiff married John P. McAvoy (McAvoy) who is employed as a contracting officer for the Agency of International Development. Plaintiff describes her husband as a member of the United States Diplomatic Corps, working out of the U.S. Embassy in San Salvador which is the capital city of El Salvador. McAvoy has been assigned to San Salvador since May 1985. Plaintiff and McAvoy are the parents of a child born in March 1987. Defendant is a police officer in the Borough of Mendham.

In September 1986, defendant moved to enjoin plaintiff from removing the children of the marriage from the State of New

Jersey, for physical custody of the children, and to compel plaintiff to pay child support. Plaintiff filed a cross-motion seeking the court's permission to remove the children and to grant her sole custody of the children. On October 24, 1986, the trial judge enjoined plaintiff from removing the children from the State of New Jersey without the consent of defendant or order of the court, based upon a determination that her cross-motion was premature and directing plaintiff to reapply when she desired to leave the State of New Jersey.

In March 1987, plaintiff filed a motion to remove the children from the State of New Jersey and to grant her sole custody. Based upon the parties' certifications and after hearing oral argument, the trial judge entered an order on May 15, 1987 granting plaintiff permission to remove the children to El Salvador. The order provides that defendant shall have visitation with the children for one week during the school Christmas vacation, one week during the school Easter vacation and 60 days during each summer vacation.*fn1 The order further provided that the cost of transportation shall be paid by plaintiff and terminated defendant's duty to pay child support. The order also provided that the provisions of the order be reviewed one year after its entry upon the application of either party. Both parties appeal.

N.J.S.A. 9:2-2 in pertinent part provides:

When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age ...


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