On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-378-01.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Holston, Jr. and Grall.
This appeal arises from a motion to modify the custody provisions of a final judgment of divorce entered by a court of this state four years before the motion was filed. Plaintiff Rosalie Ann Griffith contends that under New Jersey's Uniform Child Custody Jurisdiction and Enforcement Act (NJUCCJEA or Act), N.J.S.A. 2A:34-53 to -95, the Family Part lacked, or erred by exercising, jurisdiction over defendant Mark Gerard Tressel's post-judgment motion to transfer custody of the party's child. The appeal requires us to consider the scope of New Jersey's "exclusive, continuing jurisdiction" over a custody order entered by a court of this state, N.J.S.A. 2A:34-66, and the standards for declining that jurisdiction in favor of a more appropriate forum, N.J.S.A. 2A:34-71.
Plaintiff and defendant were married on November 5, 1994. Their only child was born in New Jersey on July 4, 1998. On April 24, 2001, they were divorced in Camden County. The final judgment incorporates their agreement to share legal custody; assign residential custody to plaintiff; permit plaintiff and the child to move to Maryland by the summer of 2001; and, until January 1, 2004, provide parenting time for defendant on alternate weekends and holidays and for two weeks during the summer. The parties agreed to postpone consideration of the parenting-time schedule beyond January 1, 2004, until a later date. They also agreed to designate New Jersey as the "home state pursuant to the Uniform Child Custody Jurisdiction Act [(UCCJA)]," which was repealed and replaced by the NJUCCJEA, effective December 13, 2004. L. 2004, c. 147, §§ 1, 44-45 (enacted September 14, 2004 to take effect ninety days after enactment).
The post-judgment motion that led to this appeal was filed on August 9, 2005 and is governed by the NJUCCJEA. N.J.S.A. 2A:34-94. Defendant sought primary residential custody. Plaintiff responded with a cross-motion asserting that Maryland, the state in which she and the child have lived since June 2001, is the more appropriate forum. The judge denied plaintiff's motion and scheduled a plenary hearing on defendant's motion to change custody. Plaintiff filed a notice of appeal.*fn1
Plaintiff and the child have lived in Maryland since June 2001, one month before the child's third birthday. Plaintiff's mother and stepfather also live in Maryland. The child first attended school in that state, and she has been evaluated by a speech therapist and an educational psychologist in Maryland, both of whom made recommendations for her development. She has been counseled by a psychologist in Maryland since March 2004.
Defendant continues to reside in New Jersey and exercises his parenting time in New Jersey. He does not identify any relationship that his child has with family members, friends or medical or education professionals in this state or any activities in which she is involved in New Jersey. The child's connections with this state are limited to her relationship with defendant and involvement with her parents' post-judgment litigation.
The first post-judgment order was entered on June 7, 2002. The judge of the Family Part ordered the parties and the child to participate in family therapy with a counselor in New Jersey. Although the order permitted the parties to return to court if the family therapy was unsuccessful, litigation was not resumed until March 2004.
On March 15, 2004, three months after the expiration of the parenting-time schedule incorporated in the parties' final judgment of divorce, plaintiff filed an order to show cause with the Family Part in Camden County seeking suspension of defendant's parenting time. She alleged that the child told a speech therapist that defendant hit her in the "stomach." The judge set a return date and ordered plaintiff to produce the speech therapist as a witness. He also ordered supervision of defendant's parenting time pending the return date.
On the return date, the judge scheduled a plenary hearing to resolve disputes about parenting time and ordered the parties to have Dr. Greenbaum, a psychologist who was treating the child in Maryland, determine whether defendant's parenting should be supervised pending that hearing. Dr. Greenbaum concluded that supervision was not necessary, and parenting time resumed in accordance with the schedule set by the judge.
In lieu of a plenary hearing, on April 23, 2004, the judge entered an order maintaining defendant's unsupervised parenting time in accordance with the temporary order and directing the parties to attend mediation in New Jersey and continue the child's therapy with Dr. Greenbaum.
Defendant subsequently filed a motion for additional parenting time. On July 20, 2004, the judge entered an order providing parenting time on alternate weekends and holidays and for three weeks during the summer.
According to plaintiff, in February 2005 Dr. Greenbaum contacted social services in Maryland to relay the child's report that defendant had kicked her in the shins, which the Maryland authorities referred to the Division of Youth and Family Services in New Jersey (DYFS). Plaintiff provides no documents indicative of the referral or any action taken.*fn2
In April 2005 plaintiff filed a complaint for custody and visitation with a court in Maryland. On June 24, 2005, the Maryland court dismissed that complaint on defendant's motion. There is no indication of any communication between the Maryland court and the judge of the Family Part.
On June 25, 2005, the child returned to Maryland after spending a week with defendant. She subsequently told her mother, her grandmother and Dr. Greenbaum about additional abuse. A complaint was filed with DYFS on July 1, 2005. Following an investigation, which plaintiff asserts did not include any contact with her or the child's grandmother, DYFS concluded that the complaint was "unfounded." The Office of the Burlington County Prosecutor in New Jersey also investigated. After reviewing a videotape of an interview of the child conducted by the Maryland State Police and meeting with defendant, the prosecutor's office declined to pursue the matter. Neither party suggests that anyone other than defendant and the child were present at the time the alleged abuse allegedly occurred.
On July 8, 2005, plaintiff obtained a temporary protective order in Maryland. Defendant was afforded supervised visits in Maryland on July 27 and August 8, 2005. The professionals who supervised those visitations completed reports recording their observations and impressions. The Maryland court conducted a hearing on continuation of the temporary protective order, determined that there was inadequate evidence to support a finding of abuse and dismissed the protective order on September 9, 2005.
Before the temporary protective order was dismissed, defendant commenced this post-judgment litigation. He moved for modification of the child's residential custody. Plaintiff responded with a cross-motion asserting that Maryland was a more appropriate forum and asking the court to suspend temporarily defendant's parenting time. Because plaintiff filed an expert report late, the judge of the Family Part did not consider the opinion of an expert psychologist, who evaluated the child and concluded that the child had been abused. On September 30, 2005, the judge denied plaintiff's requests and scheduled a plenary hearing on defendant's motion for change of residential custody.
Plaintiff again sought and obtained a temporary protective order in Maryland. She then filed a notice of appeal with this court. The Maryland court dismissed the protective order after a hearing on December 5, 2005.
Defendant subsequently filed an order to show cause to enforce his parenting time, which the judge of the Family Part granted pending the return date. Plaintiff filed an application for emergent relief with a panel of this court, supported by evidence that the child was hospitalized allegedly due to her reaction to the upcoming parenting time. The panel stayed the Family Part's order and remanded for a hearing on whether it should be modified in light of the child's condition.
After conducting that hearing, the judge entered an order suspending defendant's parenting time until the child made sufficient progress in trauma therapy to permit reunification therapy. Neither party appealed from that order, and the motion panel vacated its stay to permit its implementation. At oral ...