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K.E.P. v. M.P.

June 25, 2008

K.E.P., NOW KNOWN AS K.M.E, PLAINTIFF-RESPONDENT.
v.
M.P., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-2314-02.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 27, 2008

Before Judges Parrillo, Gilroy and Baxter.

Defendant M.P. appeals from a June 26, 2007 sua sponte order of the trial court that dismissed a pending notice of motion and cross-motion scheduled for July 6, 2007, on the basis that New Jersey courts no longer retained jurisdiction of the matter under New Jersey's Uniform Child Custody Jurisdiction and Enforcement Act (NJUCCJEA), N.J.S.A. 2A:34-53 to -95, because the parties' daughter has resided out of state for over five years. We reverse and remand.

I.

Defendant and plaintiff, now known as K.E., were previously married and had one daughter. The child was born in New York City on July 7, 2001, but spent her first thirteen days out of the hospital with her parents in their home in East Brunswick, New Jersey. On July 26, 2001, plaintiff left defendant and took the couple's daughter back to New York where the two have resided ever since.

On August 1, 2001, plaintiff filed a petition for custody in Kings County (Brooklyn), New York. On August 8, 2001, she also filed for and obtained a domestic violence temporary order of protection against defendant from the same court. Defendant and his parents allegedly attempted to remove the couple's daughter from plaintiff's parents' home in New York, causing plaintiff to seek the aid of the courts. Plaintiff allowed the order of protection to expire on December 31, 2002.

On August 2, 2001, defendant*fn1 filed an application for a writ of habeas corpus in the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County. Plaintiff opposed the motion and, on August 22, 2001, cross-moved to have defendant's pending action in New Jersey dismissed and jurisdiction assigned to New York, where she and the parties' daughter resided.

Defendant's motion and plaintiff's cross-motion were heard on August 30, 2001, at which time the Family Part issued an order finding New Jersey "has subject matter jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA) to decide the issues of custody and visitation with respect to the parties['] daughter," and accordingly denied plaintiff's cross-motion to dismiss. The order specifically declared that "New York does not have Subject Matter Jurisdiction" to decide which parent should have custody. The judge also granted defendant supervised weekly parenting time.

Two months later, both parties and their respective attorneys appeared in the family court in Brooklyn and were informed that New York courts did not have jurisdiction over the matter. Plaintiff acknowledges that she thereafter withdrew her New York action, but insists that defendant threatened to seek sanctions in the New Jersey courts if she did not do so.

After the New Jersey court assumed jurisdiction, the Family Part appointed six different experts who conducted psychological evaluations of the parties and interviewed their daughter. The first was Dr. Robert Rosenbaum, who was appointed on August 31, 2001, to evaluate whether defendant posed a threat to his daughter if granted unsupervised parenting time. Later, plaintiff accused defendant of being verbally and emotionally abusive to the child and of bathing her while the two were naked in the bathtub together. The judge ordered that these abuse allegations be reported to DYFS. The agency conducted an investigation, did "not substantiate sexual abuse," but recommended family counseling. The third expert the judge appointed was Susan Arbeiter, Ph.D., who was appointed on November 19, 2003, "to therapeutically counsel [the parties] as to any child related issues that remain unresolved."

Linda Schofel was appointed on February 24, 2004, as the child's guardian ad litem. From February 2004 through May 2005, Schofel investigated plaintiff's allegations of abuse. Ultimately, she filed a comprehensive 191-page report in May 2005 to assist the judge in making various custody and parenting time determinations. Notably, she concluded that "New Jersey should retain jurisdiction of this matter so long as Mr. Parnes resides in this State." Dr. Sharon Ryan Montgomery, a specialist in child sexual abuse, was appointed on April 12, 2004, to contribute to the evaluation of plaintiff's sexual abuse allegations. After administering a series of psychological tests, Dr. Montgomery concluded that plaintiff's accusations against defendant were unfounded, but not done on purpose, instead stemming from plaintiff's anger and distrust toward defendant. Dr. Montgomery recommended that a parenting coordinator be appointed by the court and that defendant's visits with the child be unsupervised. Consequently, overnight parenting resumed.

The fifth expert, Dr. Edwin Rosenberg, Ph.D., was appointed on September 14, 2005, as parenting coordinator for a term of two years, to end in November 2007. The parties were ordered to contact Dr. Rosenberg to settle custody disputes ranging from the dates, times and places of transition between households to how to allocate healthcare reimbursements for the parties' daughter. The parties liberally availed themselves of Dr. Rosenberg's services, asking him for multiple recommendations regarding disputes over such issues as summer camps, summertime parenting schedules, school year parenting schedules, school holidays, Jewish holidays, after-school pick up, evening drop-off times at the end of the weekend, pick-up times, attendance at family parties, telephone calls, weekly dinners and baptism.

During this time, plaintiff filed for divorce and requested sole custody of the child in the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County. A dual judgment of divorce was entered on July 22, 2004. ...


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