On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County.
Gaulkin*fn1, Dreier and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.
Carl R. Macek (the father) appeals from a June 28, 1989 order of the Chancery Division, Family Part, dismissing his complaint for lack of jurisdiction. We now reverse and remand.
The complaint was filed in September, 1988, and sought an order restraining Cynthia S. Friedman (the mother) from removing the parties' two minor children from New Jersey. The parties had been divorced in Pennsylvania in 1986. However, as of September 1988, the mother and children had resided in New Jersey for approximately two years. Consequently, New Jersey was the children's "home state" within the meaning of the Uniform Child Custody Jurisdiction Act (UCCJA), N.J.S.A. 2A:34-28 et seq. N.J.S.A. 2A:34-30e defines "home state" as the state in which the child lived with a parent for at least six consecutive months. As the "home state" New Jersey courts had jurisdiction "to make a child custody determination by initial or modification decree. . . ." N.J.S.A. 2A:34-31a(1)(i). Moreover, the Pennsylvania courts declined to exercise jurisdiction in view of the pending New Jersey action.*fn2
On September 23, 1988 the Chancery Division entered an order permitting the mother "to remove . . . the minor children from their residence in the State of New Jersey to Ramstein Air Force Base, Ramstein, West Germany, pending a plenary hearing scheduled for November 2, 1988. . . ." The move to Germany was occasioned by the assignment of the mother's new husband, a chaplain, to active duty in the United States Air Force. Due to the press of other court business, no plenary hearing was ever held.
The father filed a motion returnable June 26, 1989*fn3 for an order granting primary physical custody to the father, directing a full custody investigation by the Warren County Probation Department and for other ancillary relief. The mother cross-moved for an order dismissing the complaint. After limited colloquy the motion judge ruled that New Jersey courts lacked jurisdiction. He stated in part:
There is no way that this court can enforce an order against the natural mother in Germany right now, because she's there and we're here and there's no one within the State of New Jersey.
That's not to say that we can't . . perhaps it can't be enforced in other ways through the median of . . of sending it to Germany to be enforced, but the long and short of it is, that notwithstanding all of the orders that have been entered up to the present time, it would appear that this matter doesn't belong in New Jersey, but it belongs in a jurisdiction where they have control over the litigant. And, under the circumstances Mr. Russo, I'm reluctant to do so, but I . . I just don't feel that we can entertain this matter.
It's unfortunate that it's gone on for as many months as it has . . you acting in good faith thinking that you had a docket number . . thinking that you had the matter resolved through the median of filing the amended complaint and then also believing that the Probation Department would provide you with a docket number under the other theory as far as custody is concerned.
But in view of my . . . review of the file and the statute, I . . I'm concluding that the matter doesn't belong here, it should be reinstituted . . I guess . . in Pennsylvania where the divorce occurred and where the agreement was entered into as to providing the mother with temporary custody with joint legal custody being conferred upon both parents but she being given joint . . I mean . . being given temporary custody and permitting her to come to New Jersey.
After additional colloquy, the motion judge also ruled that the court lacked jurisdiction under N.J.S.A. 9:2-2 which prohibits removal of children without a court order if "such children are natives of this State, or have resided five years within its limits."
As previously indicated, the New Jersey Superior Court had jurisdiction in September 1988 when the father commenced this action. The fact that the Family Part, through an exercise of its ...