On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County.
Approved for Publication March 15, 1996.
Before Judges Michels, Baime and Villanueva. The opinion of the court was delivered by Baime, J.A.D.
The opinion of the court was delivered by: Baime
The opinion of the court was delivered by BAIME, J.A.D.
We granted defendant's motion for leave to appeal from the Family Part's order directing her to return her child to the United States, restraining her from continuing custody proceedings in any other jurisdiction, and awarding temporary custody of the child to plaintiff. Defendant had taken the child to Morocco, where the parties had resided before coming to the United States, pursuant to a separation agreement which granted her sole physical custody and permitted her to take up residence with the child in another country. We hold that the Family Part lacked subject matter jurisdiction and, in any event, should have deferred to the divorce and custody proceedings that had already commenced in Morocco.
The facts are not in dispute. Plaintiff holds both American and French citizenship. Defendant is a citizen of Morocco. The parties were married pursuant to Islamic law by a Moroccan court in 1992. Following their marriage, the couple moved to France where their daughter Lina was born in 1993. In the latter part of 1993, the parties moved to Morocco. When their business plans failed, the couple emigrated to New Jersey, where plaintiff's parents operated a restaurant. While residing in New Jersey, the parties' marital relationship deteriorated, causing plaintiff to leave the family residence and move into his parents' house.
On February 22, 1995, the parties entered into a separation agreement under which they retained joint legal custody, but physical custody was granted to defendant. The agreement provided that defendant and Lina could take up residence in another country so long as defendant abided with the provisions of the agreement. Plaintiff was given twelve weeks of visitation with the child each year in the country where he resided, but was required to pay all travel expenses incurred in connection with that visitation. The period of visitation was to be determined by plaintiff. In turn, plaintiff was required to pay child support in the weekly amount of $125 until Lina's emancipation. The agreement granted defendant permission to obtain a divorce pursuant to Islamic law.
In the event of a breach of the agreement, the non-breaching party was required to provide the defaulting party with written notice of the breach by certified mail and allow thirty days to cure the breach. The agreement, which was to be interpreted according to the principles of New Jersey law, was to be incorporated into any divorce judgment obtained by the parties.
Within a week of the execution of the agreement, Lina was sent to live with defendant's parents in Morocco. Defendant herself moved to Morocco in April 1995. Sometime between April 27 and May 3, 1995, defendant filed a petition for divorce and custody in the Primary Court of Rabat. Plaintiff was served with the summons and complaint and was ordered to appear before the Primary Court on October 16, 1995 for a hearing on the petition.
Plaintiff filed a complaint in the Family Part on May 2, 1995, in which he sought a judgment of divorce, equitable distribution, sole custody of Lina, and child support. Defendant was served with the summons and complaint on August 8, 1995, and filed a motion to dismiss several days later. The court denied defendant's motion. Although the Family Part Judge's oral opinion is not a paragon of clarity, he apparently found that the New Jersey courts had subject matter jurisdiction and that New Jersey constituted Lina's "home state." The Judge seemingly determined that defendant had wrongfully removed Lina from New Jersey to Morocco. We derive that interpretation from the Judge's allusion to defendant's holding the New Jersey courts "hostage." In any event, the Judge scheduled a hearing to determine the child's best interests, ordered defendant to return Lina to the United States within a week, and awarded plaintiff sole custody of the child pending Disposition of the issues. In addition, the Judge restrained defendant from proceeding with her petition for custody in Morocco.
Defendant filed a motion for leave to appeal. We granted a temporary stay pending Disposition of the motion and requested the Family Part Judge to supplement his oral opinion with a written statement of reasons. In his supplemental opinion, the Judge acknowledged that the Uniform Child Custody Jurisdiction Act (N.J.S.A. 2A:34-28 to -52) (UCCJA) was not applicable. The Judge also noted that the Hague Convention was not applicable because Morocco is not a signatory to the treaty. The Judge nevertheless determined that New Jersey was Lina's home state based upon the length of time she had resided here. The Judge also found that defendant had removed Lina from New Jersey by "subterfuge" and that the provision in the separation agreement allowing defendant to take up residence in another country with Lina was not applicable because defendant had breached the agreement by refusing to permit plaintiff to exercise his right of visitation. We granted defendant's motion for leave to appeal following receipt of the Family Part Judge's supplemental opinion. We also continued our stay of the Family Part's order pending Disposition of the appeal, which has been accelerated.
Initially, we find no basis in the record for the Family Part Judge's Conclusion that defendant wrongfully removed Lina from New Jersey to Morocco. The separation agreement clearly contemplated that defendant would leave the United States with Lina and take up residence in another country. This is not a matter of ...