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Roszkowski v. Roszkowska

Decided: December 8, 1993.

MIROSLAW ROSZKOWSKI, PLAINTIFF,
v.
GRAZYNA ROSZKOWSKA, DEFENDANT.



Whitken

Whitken

MELVIN S. WHITKEN, J.S.C.

PROCEDURAL HISTORY

On July 27, 1993 the plaintiff, Miroslaw Roszkowski, filed a complaint for divorce against his wife, Grazyna Roszkowska, based upon the grounds of extreme cruelty and further alleging that the defendant, without his consent, removed their child, Rafal, from the jurisdiction of New Jersey and sent the child to Poland. The plaintiff, in his complaint, seeks a dissolution of the marriage, sole legal and residential custody of Rafal with reasonable visitation to the defendant, that the defendant surrender her passport during the periods of visitation, and further seeks child support from the defendant, as well as equitable distribution and counsel fees.

A motion on short notice was thereafter filed by the plaintiff, returnable August 6, 1993, seeking pendente lite custody of Rafal, compelling the defendant to return Rafal to New Jersey within ten days and thereafter prohibiting her from removing Rafal from New Jersey without further order of the Court, requesting that this Court retain jurisdiction over Rafal, demanding that the defendant immediately surrender her passport to the court, and incarcerating her if the child is not returned within ten days. The plaintiff further sought a probation department investigation as to the issue of permanent custody along with an examination of the defendant and the child by a psychologist.

Kevin J. Daly, Esq. was thereafter appointed by the Honorable Ross R. Anzaldi to represent the defendant; a cross-motion was filed on behalf of the defendant requesting that the court deny the plaintiff's motion in its entirety or, in the alternative, awarding custody of the child to the defendant, and for counsel fees.

Thereafter, the matter was assigned to this court at which time a plenary hearing was held for the sole purpose of determining whether this court had jurisdiction to determine the issue of custody and whether this court had jurisdiction to enter an order requiring Rafal to be returned from Poland to New Jersey.

FINDINGS OF FACT

I find that the parties were married on April 19, 1986 in Bialystok, Poland, and Rafal was born on February 21, 1989 in Poland.

The plaintiff presently resides at 430 Vine Street in Elizabeth whereas the defendant resides in an apartment in Staten Island, New York, on weekends and works in Brooklyn, New York during the week. Both parties are Polish citizens as is Rafal.

The plaintiff arrived in the United States from Poland on September 27, 1989, seeking employment, which was approximately seven months after Rafal was born. Rafal lived with the defendant, who remained in Poland, during this period of time. The plaintiff visited the defendant and his son in Poland on two occasions: once in February of 1992 and thereafter from August to September of 1992.

On December 21, 1992 the defendant and Rafal arrived in the United States and resided with the plaintiff in New Brunswick, New Jersey. When the defendant and Rafal came to the United States, they each possessed a visitor's visa with expiration dates of March 21, 1993, which may have been extended to November 1994, although no proof of same was submitted to the court. On the second day that the defendant was in the United States, the plaintiff advised her that he had a girl friend and as of the date of the hearing before this court, the plaintiff admitted that his girl friend had, in fact, recently delivered his child. The plaintiff then changed jobs and moved to his present address in Elizabeth, although the defendant and Rafal remained in New Brunswick.

Some time in March of 1993, the defendant moved to an apartment in Staten Island and Rafal resided with the plaintiff a minimum of five per nights per week and sometimes six nights per week in Elizabeth. The plaintiff enrolled Rafal in a Montessori School in Staten Island and, in fact, transported Rafal back and forth to the school. During this period of time he also took Rafal to the doctors when required.

On July 18, 1993, the defendant sent Rafal back to Poland and indicated she was going to stay here to attempt to work through her marital problems with the plaintiff; she contends that the plaintiff knew Rafal was being sent to Poland and he approved of this arrangement. The plaintiff denies that he knew Rafal was being returned to Poland permanently and stated that it was his understanding that Rafal was merely going for a visit.

The parties have stipulated that Rafal was physically in the State of New Jersey from December 21, 1992 to July 18, 1993, which is a period slightly in excess of six months.

LAW

The plaintiff posits the theory that since this Court has in personam jurisdiction over both the plaintiff and defendant,*fn1 this Court has jurisdiction to order the return of their child, Rafal, from Poland and to determine custody. Specifically, the plaintiff argues that "the court only need find that there is jurisdiction over the parties (rather than the child) in order to compel the parties to submit to the Orders of this court." See Letter Brief of Plaintiff, dated September 10, 1993, at 8. However, it has been noted that "because jurisdiction over child custody determinations derives from the child's contacts with the state, a parent's contacts with the state are irrelevant." Monica J. Allen, Child-State Jurisdiction: A Due Process Invitation to Reconsider Some Basic Family Law Assumptions, 26 Family L.Q. 293, 306 (1992). Thus, the Court must examine the nature of the child's contacts with the state to ascertain whether they are sufficient to confer jurisdiction in accordance with both statutory law and the Hague Convention.

Under New Jersey statutory law, the Superior Court has jurisdiction over child custody disputes and is empowered to make a ruling provided that certain condition precedents are satisfied. Most importantly under the Uniform Child Custody Jurisdiction Act ("UCCJA"), jurisdiction is conferred when New Jersey:

(i) is the home state of the child at the time of commencement of the proceeding, or (ii) had been the child's home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this State . . .

[N.J.S.A. 2A:34-31(a)(1).]

The statute further provides that the "physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody." Id. 2A:34-31(c).

Thus, the first jurisdictional requirement is that the forum be the child's "home state," which is defined as:

the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least 6 consecutive months, and in the case of a child less than 6 months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary ...


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