Before Judges Havey, P.g. Levy and Lesemann.
The opinion of the court was delivered by: P.g. Levy, J.A.D.,
 Argued: December 14, 1998
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County.
This is an international child custody dispute in which the trial Judge refused to stay his prior order denying plaintiff's motion for modification of the parties' custody agreement and ordering the return of the parties' child to Switzerland on the ground that New Jersey lacked subject matter jurisdiction because Switzerland had become the child's home state. Plaintiff appeals, contending the Judge erred in (1) determining that Switzerland had jurisdiction without determining whether New Jersey had concurrent jurisdiction and, if so, which of the two forums was more convenient for litigating the custody issue; (2) refusing to enforce the portion of the parties' agreement that reserved subject matter jurisdiction in New Jersey over custody disputes; (3) refusing to exercise jurisdiction on the request for a stay after having exercised jurisdiction on a previous motion to modify; and (4) making findings of fact that are unsupported by the record.
We conclude that New Jersey had subject matter jurisdiction, and therefore we reverse and remand.
The parties were married in 1987, their son Rudy was born in 1991 and they were divorced in 1994, the final judgment incorporating their property settlement agreement (PSA). The judgment provided for joint legal custody of Rudy with plaintiff designated as the primary residential parent; defendant was granted "fair, reasonable, and liberal visitation with [Rudy]." The parties were New Jersey residents, but sometime thereafter, defendant remarried and moved to Switzerland. That change of circumstance resulted in a consent order, filed April 28, 1995, modifying defendant's visitation schedule, given his relocation to Switzerland. Rudy's visits with defendant were tied to the Easter and Christmas holidays and the summer season. The consent order further provided: "Despite defendant's relocation to Zurich, Switzerland, any questions or disputes that may arise between the parties as to child support, custody and visitation shall remain subject to the jurisdiction of New Jersey."
During the summer of 1995, Rudy spent approximately six weeks with defendant in Switzerland, and in 1996 approximately four months between May and August. In September 1996, Rudy started kindergarten at St. Rose Grammar School in Belmar. However, when plaintiff experienced a housing problem, *fn1 plaintiff asked defendant if he would like Rudy to finish out the kindergarten year in Switzerland, and defendant agreed. Although the unrepresented plaintiff believed that she and defendant had agreed that Rudy would be returned to her during the summer of 1997 so that he could attend first grade in New Jersey, on December 12, 1996, the parties entered into a consent order modifying their prior agreements, which stated differently.
That consent order specified that the PSA would "remain in full force and effect." However, while providing that the parties would continue to share legal custody, the consent order designated defendant the primary physical custodial parent effective January 1, 1997, "for an indefinite period of time, with both parties agreeing to make all future decisions concerning custody of their child based on his best interests." Plaintiff was granted visitation with Rudy in Switzerland during his school vacations, with defendant having agreed to pay for up to four airline tickets per year for plaintiff's travel.
According to plaintiff, the quoted terms were inserted for the following reasons:
"I therefore requested that a paragraph be included in the Consent Order which would allow Rudy to be returned to me prior to the summer of 1997 in the event that he expressed a desire to do so. Thus, my understanding with regard to the Consent Order was that, in the event that Rudy adjusted well, he would be returned to me during the summer of 1997 but that, in the event that he experienced anxiety or stress as a result of the move, he would be returned to me prior to that date. Plaintiff offers a number of other explanations in support of her position that the agreement does not mean what it says, including the fact that she would have insisted on summer visitation with Rudy in New Jersey, just as defendant had summer visitation with Rudy in Switzerland."
Rudy left New Jersey for Switzerland on December 30, 1996. After Rudy arrived, plaintiff spoke to him on the telephone nearly every day. In early February 1997, Rudy expressed the desire to return to New Jersey. When plaintiff discussed Rudy's statement with defendant, defendant requested that Rudy be given more time to adjust, and the parties agreed that plaintiff would visit Rudy during his winter vacation. A series of visits ensued, and each time Rudy expressed a desire to return to New Jersey. Defendant disagreed and eventually told plaintiff that he had enrolled Rudy in the first grade at a Swiss school. This litigation followed.
On June 9, 1997, plaintiff filed a motion seeking the return of residential custody, reinstatement of the original visitation schedule between Rudy and defendant, and the reinstatement of child support. Defendant cross moved for security to be posted to guaranty Rudy's return to Switzerland at the end of his summer visit with plaintiff. The motion Judge denied the motion and the cross motion on July 11, 1997 (the order was entered on August 6, 1997). However, he did grant plaintiff extended parenting time with Rudy in New Jersey from July 13 through August 31, 1997, though Rudy was to be returned to defendant in Switzerland by August 25, 1997. Moreover, the Judge said that "[s]hould the plaintiff seek to change custody, the parties may obtain expert custody evaluation at their own expense."
After the hearing, and pursuant to the Judge's suggestion, plaintiff's counsel contacted Michele Rabinowitz, a psychologist, for the purpose of performing a custody evaluation. Rabinowitz required the participation of both parents and Rudy. Defendant refused to participate. Therefore, Rabinowitz was able to evaluate only plaintiff and Rudy for the purpose of determining whether there were "psychological factors that might alter the Court's decision concerning Rudy's return to Switzerland with his father."
Then, on August 20, 1997, plaintiff filed an order to show cause requesting a stay of the earlier order requiring Rudy's return to Switzerland and an order (1) compelling defendant to submit to and pay his portion of the custody evaluation with Rabinowitz; (2) scheduling a plenary hearing to determine residential custody, visitation and child support; and (3) awarding other unspecified equitable relief. This time the Judge ruled that Switzerland, not New Jersey, had "exclusive subject matter jurisdiction" over the custody issue under the Hague Convention, denied the motion for change in custody status for lack of jurisdiction, denied the request to have ...