June 6, 1990
Chief Justice Wilentz and Justices Handler, O'Hern, Garibaldi and Stein join in this order. Justice Clifford and Pollock did not participate.
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This matter having come before the Court on defendant's motion for leave to appeal from the order entered May 23, 1990, by the Superior Court, Chancery Division, Family Part, granting defendant interim custody of her minor children until further order of the Indiana courts, and requiring defendant and her two minor children to appear before the Indiana Circuit Court on May 25, 1990, at 9:00 a.m.;
And it appearing that the Indiana Circuit Court, in response to plaintiff's motion to enforce the December 2, 1988 judgment granting custody of the minor children to plaintiff, issued an order providing for a hearing on plaintiff's application on May 25, 1990, at 9:00 a.m.; and it further appearing that the Indiana Circuit Court, in response to defendant's motion for a stay of the December 2, 1988 judgment and for a full hearing on the merits of all issues relating to custody, issued an order denying defendant's application for a stay and set down for hearing on May 25, 1990, at 10:00 a.m. the determination of the remaining relief sought by defendant;
And the Court, based on its consideration of the best interests of the children, having concluded that further proceedings to be conducted in Indiana should allow defendant's full participation therein without any prior determination of contempt for
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violation of past orders and without any change in the present custodial status of the minor children until after a full hearing on the merits that embraces all issues material to custody, and good cause appearing;
It is ORDERED that the motion for leave to appeal is granted, and it is further
Ordered that paragraph 1 of the order of the Superior Court, Chancery Division, Family Part, entered on May 23, 1990, is summarily reversed; and it is further
Ordered that the matter is remanded to the Superior Court, Chancery Division, Family Part, with instructions that no further order that compels the presence of Rachael and Hillary Benda in Indiana is to be entered until the following conditions are met:
1. Defendant's full participation in hearings to be conducted in the Indiana courts concerning custody shall be permitted to occur without any prior determination of contempt for violation of past orders; and
2. Through use of the procedures provided in the Uniform Child Custody Jurisdiction Act, such as those contained in N.J.S.A. 2A:34-34(c), the Chancery Division determines that the present custodial status of Rachael and Hillary Benda will not be modified until the Indiana court's best interest hearing that considers all issues material to custody is concluded and a decision rendered therein.