On certification to the Superior Court, Appellate Division, whose opinion is reported at 288 N.J. Super. 575 (1996).
The opinion of the court was delivered by Pollock, J. Chief Justice Poritz and Justices Handler, Garibaldi, Stein, and Coleman join in Justice POLLOCK's opinion. Justice O'hern did not participate.
The opinion of the court was delivered by: Pollock
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Jean Jacques Marcel Ivaldi v. Lamia Khribeche Ivaldi (A-49-96)
Argued November 4, 1996 -- Decided December 23, 1996
POLLOCK, J., writing for a unanimous Court.
This case primarily involves the question of whether, under the facts presented, New Jersey courts have jurisdiction to consider an international child-custody dispute.
Jean Jacques Marcel Ivaldi and Lamia Khribeche Ivaldi were married on September 18, 1992, in Rabat, Morocco. Jean Jacques is a citizen of the United States and France. Lamia is a Moroccan citizen. Lina Camille Ivaldi was born in France on June 21, 1993.
In January 1994, Jean Jacques moved to New Jersey, where his parents operate a restaurant. A month later, Lamia and Lina joined him. Marital difficulties followed, and Jean Jacques moved out of the marital home.
On February 22, 1995, the parties--each represented by counsel--entered into a comprehensive separation agreement. The agreement called for joint legal custody, with Lamia having physical custody of Lina. Under the agreement, Lamia was permitted to take Lina to Morocco provided she abided by all of the terms of the agreement. The agreement specifically stated that New Jersey law would govern its terms.
Within a week of signing the agreement, Lamia sent Lina to live with her parents in Morocco. Lamia joined them a few weeks later. On April 27, 1995, Lamia filed a divorce action in Rabat, Morocco. On May 2, 1995, Jean Jacques filed a complaint in the Superior Court seeking, among other things, sole custody of Lina. Lamia moved to dismiss the action in New Jersey.
The trial court denied the motion to dismiss, holding that although the Uniform Child Custody Jurisdiction Act (Act) did not apply, the Family Part had "subject-matter" jurisdiction. The trial court found for Jean Jacques, directing Lamia to return Lina to the United States. The Appellate Division stayed the trial court's order and thereafter granted Lamia's motion for leave to appeal. On March 16, 1996, the Appellate Division reversed the trial court, concluding that the record was barren of any evidence that Lamia had violated the separation agreement by taking Lina to Morocco. The Appellate Division also held that the trial court did not have subject-matter jurisdiction. It dismissed the complaint.
The Court granted Jean Jacques' petition for certification. At oral argument, counsel informed the Court that the parties are participating in mediation in Morocco. Both parties are represented by counsel in that proceeding, while Lamia is pro se before this Court.
HELD : The jurisdictional provisions of the Uniform Child Custody Jurisdiction Act (N.J.S.A. 2A:34-29 to -52) vest the Family Part with subject-matter jurisdiction to determine an international child custody dispute. In light of the circumstances of this case, the matter is remanded to the trial court to determine whether New Jersey or Morocco provides a more appropriate forum.
1. Although at first glance the Act suggests that it applies to disputes between states of the United States, section 51 of the Act clearly extends its application to the international arena. Read as a whole, the Act applies to foreign countries as if they were states. International child-custody actions have become part of a global society. (pp. 7-15)
2. The Court's construction conforms also with a proposed revision to the Act. The draft "Uniform Child Custody Jurisdiction and Enforcement Act" explicitly states that its provisions apply to child custody proceedings of other countries. (p. 15)
3. Under the Act, New Jersey was Lina's "home state" at the time Jean Jacques began this proceeding. (pp. 15-16)
4. The next question to be asked is whether New Jersey or Morocco is the more convenient forum for the custody action. The forum question should be determined under the provisions of the Act and the matter is remanded to the Family Part to make that determination. Under the Act, the interests of the child are critical in determining which jurisdiction provides a more convenient forum. The Court encourages the Family Part to communicate directly with the Moroccan court to obtain any information needed to determine whether New Jersey or Morocco is the more convenient forum. (pp. 16-19)
5. Even if the Family Part dismisses this action, the dismissal will not preclude a New Jersey court from subsequently reviewing the enforceability of a Moroccan custody decree. (p. 19)
6. Morocco is the only signatory to the new Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation In Respect of Parental Responsibility and Measures For the Protection of Children. The delegates from the United States agreed on October 19, 1996, to present the new Convention to this country's government. Although the Convention has not yet taken effect here, it can be noted that the Convention seeks to assure that the best interest of the child is the primary consideration in all international disputes involving children. (pp. 19-22)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Family Part.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, GARIBALDI, STEIN, and COLEMAN join in JUSTICE POLLOCK's opinion. JUSTICE O'HERN did not participate.
The opinion of the court was delivered by
The primary issue is whether under the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-29 to -52 ("the Act" or "the UCCJA"), New Jersey courts have subject-matter jurisdiction to determine this international child-custody dispute. A second issue is whether the courts of New ...