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Division of Youth and Family Services v. D.L.

September 18, 2008

DIVISION OF YOUTH AND FAMILY SERVICES, PLAINTIFF,
v.
D.L., DEFENDANT-APPELLANT, AND M.M., DEFENDANT,
v.
S.E., DEFENDANT-RESPONDENT,
IN THE MATTER OF A.E. AND K.E., MINORS.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FN-16-117-06.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 26, 2008

Before Judges Messano and Chambers.

Defendant D.L. appeals the order of November 27, 2007, allowing defendant S.E., who is the custodial parent, to take their two children on a vacation to Egypt. We affirm.

D.L., the mother, and S.E., the father, are the parents of two living children: A.E., born on March 29, 1995, and K.E., born on May 22, 1996.*fn1 The parties were divorced on March 21, 2001. The property settlement agreement provided D.L. with residential and legal custody of the children, and S.E. was given liberal and reasonable parenting time. D.L. became involved with defendant M.M., who later became her second husband. In August 2003, M.M. beat D.L. and her children, and criminal and domestic violence proceedings were brought against him.

This action was thereafter commenced by the Division of Youth and Family Services (DYFS) on February 17, 2006, for care, custody and supervision of the two surviving children of D.L. and S.E. and of a third child that D.L. had with her second husband, M.M. This latter child is not involved in this appeal.

In September 2007, after a case management review hearing, the court awarded S.E. legal custody of his two children. S.E. then sought the court's permission to take the children on a vacation to Egypt.*fn2 S.E., who is a native of Egypt and an Egyptian citizen, sought to take the children to Egypt to have them meet relatives and to familiarize them with their Islamic heritage. Further, the children's therapist and Dr. Needleman thought that the trip would be in the best interests of the children. Since S.E. had legal custody of the children, neither DYFS nor the law guardian objected. However, D.L. objected, expressing her concern that S.E. would not return the children to the United States and that the children would not be safe in Egypt. Her attorney argued that if S.E. failed to return the children to the United States, D.L. would be without a remedy since Egypt was not a signatory of the Hague Convention on the Civil Aspects of International Child Abduction. Further, due to information about Egypt set forth on the U.S. Department of State consulate information sheet about the safety of American tourists in Egypt, D.L. argued that Egypt was not a safe place for them to visit.

The trial court granted S.E.'s application, noting the benefit to the children of learning about their religious and cultural heritage and the opinions of the mental health professionals that the trip would be good for the children. Regarding the safety concerns, he noted that the children would be with their Egyptian father and that Egypt was not on the list of countries where Americans were advised not to go.

With regard to D.L.'s concern that S.E. would not return the children to the United States, the trial court expressed its belief that S.E. would return with the children, and forcefully reminded S.E. that if he did not do so, he would have to face the unhappiness of his two children. S.E. was required to provide proof of his roundtrip airline tickets for himself and the children, and addresses and telephone numbers of where the children would be during the trip. Finally, the trial court required S.E. to post a bond of $100,000 and provided that if he did not return with the children, the bond would be payable to D.L. for her use in the legal struggle to secure the return of the children. An order was entered on November 27, 2007, setting forth these requirements and allowing S.E. to take the children to Egypt for two weeks in December 2007.

D.L.'s application to the Appellate Division for a stay of this order was denied on December 6, 2007. S.E. took the children to Egypt pursuant to the order and returned to New Jersey with them. S.E.'s application to dismiss this appeal as moot was denied by order dated May 8, 2008, since "[t]he issue may arise again with an inability to review in emergent circumstances."

On appeal, D.L. contends that the trial court failed to apply the proper criteria in evaluating the application and that accordingly the decision should be reversed. Specifically, she contends that the trial court should have applied the twelve factors governing the removal of a child from the state set forth in Baures v. Lewis, 167 N.J. 91 (2001) and MacKinnon v. MacKinnon, 191 N.J. 240 (2007), stay denied, __ U.S. __, 128 S.Ct. 7, 168 L.Ed. 2d 784 (2007). D.L.'s reliance on the twelve removal factors set forth in Baures v. Lewis, supra, 167 N.J. at 116-17, is misplaced, since that case concerned an application to permanently relocate a child to another State, and did not deal with a mere temporary removal for the purpose of a vacation as we have here. Id. at 99; see also MacKinnon v. MacKinnon, supra, 191 N.J. at 242 (applying Baures v. Lewis to a permanent international relocation request).

D.L. objected to the trip because she was concerned about the safety of the children in Egypt. In addition, if S.E. did not return the children to New Jersey, she would have limited legal recourse to compel their return, since Egypt is not a signatory to the ...


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