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Schmidt v. Schmidt

Decided: January 21, 1988.

MICHAEL SCHMIDT, PLAINTIFF-APPELLANT,
v.
KATHLEEN MARY KEADY SCHMIDT, DEFENDANT-RESPONDENT



On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Bergen County.

J. H. Coleman, O'Brien and Havey. J. H. Coleman, P.J.A.D.

Coleman

In the international child custody case the issue is whether a West Germany court or a New Jersey court should decide which parent should have custody of a young child. The trial judge held that the issue should be decided in New Jersey. We now affirm.

The facts essential to our decision are not in dispute. Plaintiff and defendant were married on October 12, 1984 in West Germany. Plaintiff is a citizen of West Germany and defendant is an American citizen. While residing in West Germany defendant was employed on a United States Army base in Stuttgart. On January 12, 1985 Oliver Michael, who is the child involved in this appeal, was born to the couple. Oliver has dual citizenship.

On May 12, 1986, without prior notice to the plaintiff, defendant left West Germany with Oliver. She left apparently because of marital difficulties. She returned to her parents' home in Ramsey, New Jersey. Defendant and Oliver have resided in Ramsey since May 12, 1986. On May 13, 1986 plaintiff obtained an ex parte order from the District Court of Stuttgart, Division of Family Matters, which granted plaintiff custody of Oliver pending a full hearing. On May 14, 1986 defendant called plaintiff from her parents' home, notifying him that she and Oliver were there. On June 27, 1986 plaintiff obtained another ex parte order from the same court in Germany ordering

defendant to return Oliver to plaintiff. Defendant did not follow the mandate of either German order.

In early August 1986 plaintiff came to the United States seeking custody. On August 4, 1986 he filed a verified complaint seeking enforcement of the May 13, and June 27, 1986 orders issued by the West Germany court. Plaintiff obtained an order to show cause which was returnable on August 5, 1986. The parties appeared before Judge Sorkow and presented argument on that date.

During the August 5 hearing, the judge indicated he was dismissing the order to show cause because the only relief sought by plaintiff was enforcement of the invalid orders from Germany. Counsel for plaintiff responded by saying that he could amend the prayer for relief in the verified complaint "if the court wants, in pen and ink." Plaintiff's counsel then stated:

The plaintiff is looking for some type of speedy resolution to this matter. . . . Just ask the court's assistance, [if] it could advise me as to how we might proceed in order.

You [Judge Sorkow] mentioned a motion regarding forum non-convenience?

The Court: Well, you're going to say that the case should be ...


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