On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, FM-15-1000-93.
Before Judges King, Wecker and Fuentes
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This child custody case requires us to address a question left open in Hendry v. Hendry, 339 N.J. Super. 326, 336 (App. Div. 2001). Where the parties to a New Jersey divorce proceeding agree in their Property Settlement Agreement that one parent will have primary residential custody of their child, that the custodial parent may move out-of-state with the child, and that jurisdiction over custody and visitation issues will remain in New Jersey, which will be deemed the child's home state, does there come a time when that consent-to-jurisdiction is no longer effective? Putting the question another way, what is the relationship between the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-28 to -52 ("UCCJA" or "the Act"), and the parties' voluntary agreement respecting jurisdiction? Because we conclude that the Family Part did not give due consideration to all the statutory factors when it exercised jurisdiction over an application to change custody, we remand for a determination whether New Jersey remains the appropriate state to exercise jurisdiction.
Given the nature of our society, it is not uncommon for divorced parents to live in different states, sometimes at great distances from each other, as in this case. See, e.g., Baures v. Lewis, 167 N. J. 91 (2001). Thus applications to modify custody and visitation orders, which are difficult enough when all of the parties live within a single jurisdiction, become complicated by an overlay of jurisdictional issues. Addressing the effect and longevity of the parties' consent- to-jurisdiction agreement, we decline to impose a bright-line rule holding the agreement binding, either for a prescribed period of time or until the child's emancipation. We conclude that so long as one parent remains a New Jersey resident, as here, the other party's consent to the continuing jurisdiction of the New Jersey courts establishes the minimum basis for the court's continuing jurisdiction. However, that consent is only one factor to be weighed in the decision whether to exercise jurisdiction pursuant to the UCCJA. The parties cannot agree in advance to ignore the Act, or for the court to proceed contrary to the Act. The UCCJA recognizes that more than one state may have jurisdiction over custody and visitation and provides guidance for determining which state shall exercise its jurisdiction in furtherance of the Act's purposes. Those purposes include the avoidance of conflicting orders issued by the courts of different states, assuring that custody litigation takes place in the state with the "closest connection" with the child and the most "significant evidence," and most importantly, where the best interest of the child can be served. The Act aims to limit controversy in the interest of protecting a stable home environment and secure family relationships. N.J.S.A. 2A:34-29. *fn1
A second issue dramatized by this case is the necessity for plenary proceedings and detailed findings by a Family Part judge before ordering a change in custody. We conclude that the Family Part judge clearly erred in summarily changing primary physical custody of this eight-year-old child from his mother, with whom he had been living in Oklahoma for the last seven of his eight years, to his father in New Jersey. Were it not for the passage of time since the August 2001 order enjoining this child's return to his mother in Oklahoma, at the end of his regular, eight-week summer visit in New Jersey, we would order an immediate return to the status quo ante. Because the child has now been living with his father in New Jersey since the summer of 2001, we remand instead for further proceedings, as we shall explain.
Certain facts and procedural history are undisputed. The parties were married and divorced twice. Their son Kevin, born November 20, 1992, is the only child of their second marriage to each other. *fn2 Their second judgment of divorce, entered in 1993 when Kevin was just one year old, incorporated a property settlement agreement ("the agreement"). *fn3 Under that agreement, the parties were to share "joint legal custody" of Kevin, with plaintiff to have "primary residential custody" for the first twelve months, "pending an evaluation by the court . . . ." Plaintiff was permitted to move with Kevin to Oklahoma, where she had been raised and where her parents still lived. *fn4 Apparently in consideration of defendant's consent to Kevin's move to Oklahoma, plaintiff agreed to a list of conditions, including: a. The State of New Jersey shall retain jurisdiction over the minor, KEVIN PEREGOY, and shall constitute the "home" state in accord with the Uniform Child Custody and Jurisdiction Act as adopted by the State of New Jersey; b. Within a period of one (1) year, the Court shall review the nature of the joint custodial relationship between the parties, anticipatory changes in the child, consistent with such variables as age, academic and vocational settings and differences; the nature of the home component; together with an examination of the success or lack thereof of the custodial access arrangement; including, but not limited to, addressing the problems, if any, in the compliance by BARBARA PEREGOY of the custodial access. . . .
Among the detailed provisions of the agreement relating to custody and visitation, Kevin was to spend a minimum of twelve weeks each year with defendant, Matthew Peregoy, including a block of eight weeks during each summer, up to two weeks each at winter and spring breaks, and at other mutually agreed upon times.
The agreement also contemplated that if plaintiff were to find herself "unable to economically and physically care" for Kevin, the parties could "discuss a change of Kevin's primary residential custody" and enter into a written agreement with respect to such a change without "application to a court of competent jurisdiction for a change of custody." The agreement repeated that in any event, the Family Part of the New Jersey Superior Court "shall review the custodial arrangement within a period of one (1) year." No such review took place, and neither party invoked the one-year review or initiated any other court action until defendant's application by Order to Show Cause near the end of Kevin's summer stay in New Jersey in August 2001.
With respect to child support, the agreement provided that defendant was to pay fifty-five dollars per week to plaintiff, to be suspended during the eight weeks Kevin spent with defendant each summer. Defendant was also to be responsible for all of the travel expenses associated with his visits to Kevin in Oklahoma and Kevin's stays in New Jersey, up to $1,875 per year, with a potential adjustment to child support in the event travel expenses exceeded that amount in any year.
Immediately after the divorce, plaintiff, Barbara Peregoy, moved to Oklahoma with Kevin, where she has remained and where Kevin remained a resident until the summer of 2001. In Oklahoma, Kevin lived with plaintiff and his half-brother, the child of his mother's first marriage, who was twenty years old in 2001. Kevin's maternal grandparents lived across the street. Plaintiff was employed as a nurse in a local hospital.
After plaintiff's relocation to Oklahoma, Kevin returned to New Jersey to spend eight weeks each summer with his father; he also spent vacations at Christmas and Easter with his father in New Jersey. Defendant operated a financial consulting business out of his home. In 2001, Kevin spent the summer with his father as usual. Kevin was then eight-and-one-half years old, and he was due back in Oklahoma on August 17 to begin school.
On August 6, 2001, defendant obtained an ex parte Order to Show Cause in the Family Part, temporarily enjoining Kevin's return to his mother in Oklahoma and temporarily ordering sole custody of Kevin to defendant. In support of his application for the order to show cause, defendant submitted a letter from a psychologist, Dr. Monty N. Weinstein, *fn5 as well as his own certification. Dr. Weinstein described having consulted with defendant "for over ten hours" and having observed defendant with Kevin "for several hours." He restated defendant's version of Kevin's experiences both with plaintiff and with defendant; reported that Kevin had expressed to him "that he wishes to remain in New Jersey with his father and yet still see his mother"; described defendant in highly complimentary terms; and concluded that defendant "has all the qualities to assume custody," and that "it is in the best interest of Kevin Peregoy to have an ongoing relationship with his father which is not happening now due to the fact that the mother is living in Oklahoma." The order referred to the possibility of irreparable harm or damage to Kevin if he was returned to his mother's care. *fn6
The order was premised expressly upon defendant's certification alleging that Kevin was afraid to return to his mother in Oklahoma, that Kevin had expressed feelings of anxiety about his mother's likely retribution for his wanting to stay with his father, and that plaintiff failed to take Kevin to a dentist or an eye exam, as well as a finding, before plaintiff had an opportunity to respond, that her "ability to continue emotional and psychological abuse [if Kevin is returned to her] combined with a generally combative nature is grounds for Kevin's fear."
The order required plaintiff to show cause on August 13, 2001 why its terms should not be continued pending a custody investigation. In her certification in response, opposing jurisdiction in New Jersey and opposing any change in custody, plaintiff denied all of defendant's allegations and described Kevin's life with her and with his brother and grandparents in Oklahoma. She described his success in school and involvement in soccer, as well as his medical care. In response to defendant's certification alleging that her older son was a bad influence because he wanted to be a spy, plaintiff explained that he hoped to join the FBI or CIA. At argument on August 13, 2001, plaintiff was represented by counsel.
Defendant appeared pro se, but was accompanied by an individual who identified himself as James Wilks, "an advocate with the National Association of Fathers." That individual was not permitted to remain at counsel table with defendant. The Family Part judge referred to an interview with Kevin by Eve Holt, a social worker with the Ocean County Probation Department. The judge provided defendant and plaintiff's counsel with a one-page "Inter-Office Note" he received from Ms. Holt, dated August 9, 2001. In that note Ms. Holt reported that she had interviewed Kevin and recommended "the child remain here in New Jersey pending the completion of the investigation." *fn7
Plaintiff's counsel argued on August 13 that "[t]he most logical reading" of the parties' consent-to-jurisdiction clause is that it was intended to allow the parties to return to court in New Jersey for the one-year review of the custody arrangement, as provided under the property settlement agreement. Counsel argued that the parties had waived that review, and therefore the consent-to-jurisdiction no longer applied. He argued that Oklahoma was now the child's home state, and as the jurisdiction with more contacts and information relevant to a custody determination, Oklahoma was also the more convenient and appropriate forum, citing Ivaldi v. Ivaldi, 140 N.J. 190 (1996). Counsel also argued that there were no grounds for interfering with Kevin's return to his mother in Oklahoma as scheduled, in time for the first day of school on Friday, August 17. The judge rejected those arguments, continued temporary restraints upon Kevin's return to Oklahoma, and reserved further decision until the following Monday, August 20, 2001.
After further argument on August 20, the judge made this determination:
THE COURT: I find that New Jersey has jurisdiction. I find that the child was born here, this was a bargained-for aspect as part of Mrs. Peregoy leaving for Oklahoma and this Court has jurisdiction of the matter.
I admit that it might not be very convenient to be holding this evaluation here but it certainly is something that, apparently, Mr. Peregoy bargained for and should have. So we're going to continue the examination for child custody. [Emphasis added.]
The judge continued the restraints upon Kevin's return to his mother in Oklahoma pending completion of a full custody investigation, to be undertaken by the county probation department in New Jersey. The judge also imposed, sua sponte, visitation for plaintiff in New Jersey only, to be supervised by defendant's mother, who lived in Virginia.
On August 30, 2001, plaintiff's application for emergent relief and for leave to appeal the August 20 order were denied by this court.
On August 17, while the Order to Show Cause was pending, defendant filed a motion for retroactive relief on his child support obligation and related tax issues. On September 27, 2001, plaintiff filed a cross-motion in the Family Part to set aside the existing orders, to return custody to her, in the alternative to allow Kevin to return to Oklahoma for holiday visits, and for related relief. For reasons we cannot determine from the record, those motions were heard before a different Family Part ...