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Muniz v. Castrillo

June 28, 2007


On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Sussex County, Docket No. FM-19-409-06.

Per curiam.


Argued: April 25, 2007

Before Judges Cuff, Fuentes and Baxter.

Plaintiff Beliris Muniz received a promotion to a senior executive position for General Motors in Mexico City, Mexico. With her former husband's consent, she left her home in Morris County to assume her new position with the couple's fourteen year old son. Their sixteen year old son remained in New Jersey with defendant Juan J. Castrillo on a temporary basis consistent with the parties' agreement. Plaintiff appeals from the October 16, 2006 order that prohibits the parties' youngest son from leaving the United States, and continues the joint custodial arrangement but transfers physical custody from plaintiff to defendant. The order further allows plaintiff to "revisit this issue if she returns to live in the United States."

Plaintiff raises various procedural and substantive objections to the October 16, 2006 order. She argues that the role of an attorney brought into this matter by the motion judge was ill-defined and unsupported by any authority. Plaintiff also argues that the judge failed to comply with the provisions of Rule 5:8-6 in conducting an in camera interview of the youngest child. She also contends that the motion judge erred by permitting defendant to invoke N.J.S.A. 9:2-2 following his consent to the removal of the youngest son, failed to conduct a plenary hearing on the issue of the physical custody of the child, and erred in considering a motion by defendant-father following registration of the existing order of custody pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act. We accelerated this appeal and now reverse and remand for further proceedings consistent with this opinion.

The essential facts are not in dispute. The parties married on October 4, 1986, in Puerto Rico. The parties had two children: J.M., who is now eighteen years of age, and H.A., who is now sixteen. Defendant moved to Florida in the fall of 1990 and plaintiff and the oldest child followed him in January 1991. The parties' youngest son was born in October 1991. The parties were divorced on November 10, 1994; plaintiff received physical custody of the children.

Plaintiff has been employed by General Motors for a considerable period of time. In February 1988, plaintiff was transferred to Atlanta, Georgia. Both children relocated with her with defendant's consent. In July 1999, plaintiff was transferred to Detroit, Michigan. The boys relocated with her with defendant's consent. Plaintiff was transferred to New Jersey in June 2000. Once again, the boys relocated with plaintiff with defendant's consent. Each move represented a promotion for plaintiff. In 2002, defendant moved to New Jersey to be closer to his children.

On February 1, 2006, plaintiff was transferred to Mexico for a three-year assignment. The oldest son did not want to go but the youngest did want to go with plaintiff. Defendant provided his written consent to the removal of the parties' youngest son; the oldest son remained in this State with defendant.

Court involvement in the custodial arrangements of this family commenced when plaintiff became concerned that the oldest child was not under adequate supervision. Citing poor grades, an automobile accident, reports of partying and card playing, plaintiff filed a motion to allow him to join her in Mexico. At the same time, plaintiff sought to domesticate a foreign judgment of divorce, modify child support, and establish child support arrears. Defendant responded with a motion requesting primary residential custody of both sons, a "Holder"*fn1 hearing, and modification of child support consistent with the custody of the children. By order dated April 28, 2006, a Family Part judge set a hearing date to consider plaintiff's removal motion, and ordered the parties to mediate the removal issue with a designated attorney. The order also provided that the judge would interview the oldest son regarding the proposed relocation. The order also addressed other issues such as child support and medical expenses not before us on this appeal.

On July 11, 2006, the parties returned to court with their attorneys. With the assistance of the attorney designated in the April 28 order, the parties resolved certain issues. The scope of this agreement is part of the issues in this appeal; therefore, we quote from the summary of this agreement spread on the record.

Number one, [plaintiff] is withdrawing her motion to compel her son . . . [J.M.] to relocate to Mexico with her. Instead, . . . the parties have agreed that they will abide the decision of both boys as to . . . whether they want to go to Mexico with [plaintiff] or not now or in the future.

Right now both boys are home for summer vacation with their father. [H.A.] was previously in Mexico with [plaintiff] from February 1st of this year until Thursday of last week. He will stay here until August 20 when both boys will return to Mexico to be with [plaintiff] until September 3rd when they will return or not return to New Jersey as they decide.

It seems today that [J.M.] will return to (sic) Mexico to commence his senior year at Sparta High School. [H.A.] has indicated a desire to do that, but it's a very fresh decision and, ...

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