September 23, 2008
DEBORAH HINTON-LYNCH, PLAINTIFF-APPELLANT,
CHESARE HORTON, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-7465-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2008
Before Judges Fisher and Baxter.
Before us is an appeal that requires consideration of whether the trial court had jurisdiction when it awarded custody of the parties' minor child to defendant. Because we conclude that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95, applies to the New Jersey proceedings in question, we reverse the order under review and direct a dismissal of defendant's custody petition.
At the present time, jurisdiction over child custody determinations is governed by the UCCJEA, which was adopted in New Jersey to be effective on December 13, 2004. See L. 2004, c. 147. Prior to that effective date, jurisdiction in such matters was governed by the Uniform Child Custody Jurisdiction Act (UCCJA), N.J.S.A. 2A:34-28 to -52. Because jurisdiction to modify a foreign custody order was more broadly permitted by the UCCJA than now permitted by the UCCJEA, an examination into the timing of the proceedings in question is warranted, as is a brief review of the procedural history of the litigation revolving around the child in question.
The record on appeal reveals that plaintiff Deborah Hinton-Lynch and defendant Chesare Horton are the parents of a minor daughter, who was born in New Jersey on June 6, 2000. Five months after the child's birth, Deborah and the child moved to Georgia, where Chesare had been residing since November 1999.
On March 27, 2002, a Georgia court entered a consent order that required Chesare pay to Deborah $504 per month in child support; the order expressly recognized that Deborah had custody of the child. The following month, the Georgia court granted Chesare's petition to legitimize the child; that order also granted him supervised visitation of the child, with the implicit recognition that Deborah had custody, with the expectation that the visits would be unsupervised after a two-year period.
In May 2002, Deborah returned to New Jersey with the child, and, on August 4, 2003, Deborah obtained an order that registered the Georgia orders in this State.
On October 27, 2004, Deborah filed a motion seeking to reinstate supervised visitation despite the passage of the two-year period referred to in the Georgia visitation order. Deborah based her position on the allegation that Chesare had permitted the child to go to a pool while only supervised by Chesare's twelve-year old daughter. She also alleged that Chesare smoked cigarettes near the child, who apparently suffers from asthma. A hearing on that matter was scheduled for January 4, 2005, but Deborah did not appear; she later asserted that she had mistakenly thought the hearing was scheduled for January 5, 2005. As a result of Deborah's failure to appear, the judge dismissed the application for a change in the visitation conditions.
The record on appeal further reveals that, on March 3, 2005, Chesare faxed a petition to the trial court for a change in custody of the child to him. It is the date of this submission, and not the consequences of the other proceedings and the many confusing circumstances, including Deborah's change of residence to Maryland in early 2005, that informs our decision in this case. Upon receipt of the custody complaint, the court scheduled a hearing for March 17, 2005. Deborah did not appear, later claiming that she had not received notice. Her attorney, who indicated he was unaware of the scheduling of the custody hearing, sought and was granted leave to withdraw. Thus, in the absence of either Deborah or her attorney, the trial judge granted custody of the child to defendant as memorialized by her order of March 17, 2005.
Thereafter, following her unsuccessful request for relief in a Georgia court, Deborah sought in the trial court in this matter, among other things, an order vacating the order of March 17, 2005, claiming that our courts lacked jurisdiction over the custody order entered in Georgia in 2002. The trial judge concluded that New Jersey had jurisdiction and that the Georgia court acknowledged this when Deborah failed to obtain relief in Georgia on August 9, 2006, although the judge then indicated that exclusive jurisdiction would be relinquished to Georgia, which the judge acknowledged was the child's home state. The judge memorialized these determinations in an order entered on June 22, 2007.
Deborah appealed, raising the following arguments for our consideration:
I. THE TRIAL COURT VIOLATED PLAINTIFF'S DUE PROCESS GUARANTEED UNDER THE FOURTEENTH AMENDMENT.
A. The trial court erred in allowing ex parte communication in the absence of opposing party.
B. The trial court lacked personal jurisdiction over plaintiff at final hearing rendering custody order void.
II. THE TRIAL COURT LACKED AUTHORITY TO ASSUME JURISDICTION TO MODIFY ANOTHER STATE'S ORDER.
III. THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED ERROR BY MAKING NO CONCLUSIONS OF LAW EXPLAINING ITS DECISION DENYING THE PLAINTIFF'S MOTION TO VACATE ORDERS GRANTING DEFENDANT CUSTODY.
We agree that our courts lacked subject matter jurisdiction over the custody issues and reverse. Accordingly, we need not address the other issues raised by Deborah regarding the manner in which the proceedings were conducted in the trial court or the sufficiency of the trial judge's decision.
Because Chesare's application for a change in custody was submitted to the trial court after the effective date of the UCCJEA, and because the earlier New Jersey proceedings regarding Deborah's visitation application cannot be equated with a child custody application, New Jersey's jurisdiction over Chesare's application is determined by resort to the UCCJEA. See Griffith v. Tressel, 394 N.J. Super. 128, 137-38 (App. Div. 2007). The UCCJEA as adopted here and in Georgia mandates that: a court of this State that has made a child custody determination consistent with [N.J.S.A. 2A:24-65 or N.J.S.A. 2A:34-67] has exclusive, continuing jurisdiction over the determination until:
(1) a court of this State determines that neither the child, the child and one parent, nor the child and a person acting as a parent have significant connection with this State and that substantial evidence is no longer available in this State concerning the child's care, protection, training and personal relationships; or
(2) a court of this State or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in this State. [N.J.S.A. 2A:34-66(a); accord Ga. Code Ann. § 19-9-62.]
As is plainly apparent, only Georgia, once having issued the original custody order, had the authority to determine whether it had lost subject matter jurisdiction over the child in question.
Here, the record reveals that, on March 27, 2002, a court in Georgia determined that Deborah had and would continue to have custody of the child. Nothing contained in the record on appeal reveals to us that Georgia ever relinquished its exclusive, continuing jurisdiction over that order prior to the custody order now under review. Accordingly, this aspect of the UCCJEA precluded the trial court's exercise of jurisdiction over custody of the child in question.
A review of N.J.S.A. 2A:34-67, which provides limited authority for a court of this State to modify a foreign custody order, also demonstrates that the trial court did not possess subject matter jurisdiction. This provision states that a court of this State may not modify a child custody determination made by a court of another state unless a court of this State has jurisdiction to make an initial determination under paragraph (1) or (2) of subsection a. of [N.J.S.A. 2A:34-65] and:
a. the court of the other state determines it no longer has exclusive, continuing jurisdiction under [N.J.S.A. 2A:34-66] or that a court of this State would be a more convenient forum under [N.J.S.A. 2A:34-71]; or
b. a court of this State or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state. [N.J.S.A. 2A:34-67.]
As we have noted, at the time the trial court awarded custody of the child to Chesare, there was no evidence that Georgia had ever determined that it no longer had exclusive, continuing jurisdiction over the child, or that New Jersey would provide a more convenient forum. And the record further reveals that Chesare has remained a resident of Georgia throughout all these proceedings. Thus, none of the circumstances set forth in subsections (a) and (b) applied here.
Lastly, we conclude there was no significance to the order entered by the Georgia court on August 9, 2006, after the trial judge here entered the order awarding custody of the child to Chesare. The statutes quoted above require that any relinquishment of jurisdiction by the state with exclusive jurisdiction must occur before the other state assumes jurisdiction. Were it otherwise, there would be a danger, upon a party's request for after-the-fact approval, that the other state could deem it convenient or expedient to approve of its relinquishment of jurisdiction. We do not mean to suggest that this is what occurred here. What we must insist upon, however, is that the requirements of the UCCJEA be precisely met before the exercise of jurisdiction by our courts over foreign custody orders to avoid adding confusion to what, in many circumstances, often is a difficult or convoluted set of circumstances. A later decision relinquishing jurisdiction cannot support another state's unauthorized assumption of jurisdiction.
For these reasons, we reverse the order of June 22, 2007, which denied Deborah's motion to vacate, we vacate the order of March 17, 2005, which granted Chesare custody of the child, and we mandate the dismissal of Chesare's petition for custody of the child.
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