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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...