On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, FD-02-176-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2007
Before Judges Weissbard and S.L. Reisner.
Plaintiff D.A.J. appeals from an order of the Family Part denying his complaint for custody of F.C.A., his seventeen year old nephew. We reverse and remand for a plenary hearing.
According to an affidavit submitted by F.C.A., he was born on June 13, 1989, in San Martin Jilotepeque, Guatemala. For approximately sixteen years, F.C.A. lived with his mother, S.A.J., and two siblings in Guatemala. F.C.A's father, P.C.T., left the family when F.C.A. was four years old and has failed to retain contact. His whereabouts remain unknown.
At age fourteen, F.C.A. was forced to drop out of school in order to support his family. F.C.A. found a job as an agricultural worker, working approximately twelve hours per day. During this time, F.C.A. claims that gang members began to pressure him into joining their gang, using threats of physical violence. Fearing for his life, F.C.A. fled to the United States at the age of sixteen. F.C.A. certifies that he "had no plan of what to do upon my arrival or with whom [he] would stay." F.C.A. certified that his "mother did not make plans for [his] care upon [his] arrival to the United States."
On March 28, 2006, F.C.A., who was by himself, crossed the Mexico-United States border and entered Texas. He was quickly captured by Customs and taken into custody. Apparently, he was detained by Customs for about a week and a half and then transferred to a shelter run by the Office of Refugee Resettlement (ORR).*fn1
On May 17, 2006, the ORR placed F.C.A. with D.A.J., F.C.A.'s maternal uncle who was living in Palisades Park, New Jersey. D.A.J. has been taking care of F.C.A. ever since. D.A.J. is employed and able to care for F.C.A.
On November 30, 2006, D.A.J. filed his complaint seeking custody of F.C.A., "pursuant to N.J.S.A. 9:2-9 and 10."*fn2 In addition, D.A.J. asked the court to "make additional determinations, so that [F.C.A.] may apply for Special Immigrant Juvenile Status." On January 3, 2007, D.A.J.'s attorney mailed the complaint to S.A.J. and moved for waiver of service on P.C.T. S.A.J. never responded to the service. Simultaneous to the filing of his complaint, D.A.J. moved for custody. On January 19, 2007, the motions were heard in Family Part. The judge focused on the issue of F.C.A.'s entry into the U.S, seeing it as relevant to the issue of abandonment. Indeed, that subject would ultimately dominate the entire proceeding:
THE COURT: He came alone. Well who sent him?
THE COURT: Yeah, but somebody had to send him across the border.
THE COURT: . . . The allegations as to how he came here, how the details as to how he came here were somewhat vague [in the certifications]. Now, I know the customary situation is that you pay somebody to ...