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Barber v. Salone

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 26, 2008

FRANK BARBER, PLAINTIFF-APPELLANT,
v.
SAMANTHA SALONE AND BRIAN JENKINS, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Chancery Division - Family Part, Middlesex County, Docket No. FD-12-274-06F.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 29, 2008

Before Judges Fisher and Baxter.

Plaintiff Frank Barber appeals from a November 27, 2007 order that dismissed his complaint for custody of a child on the grounds that New Jersey lacks jurisdiction to hear this matter because the child has resided in Georgia since December 2005. We affirm.

I.

Plaintiff met defendant Samantha Salone in 2001 in Georgia. When Salone became pregnant, plaintiff believed the child, a daughter born July 7, 2003, was his. In early 2004, plaintiff, Salone and the baby moved in with plaintiff's parents in Piscataway. Although the record does not specify the precise time the parties separated, we discern that some time in 2004, Salone moved to Elizabeth, leaving the baby with plaintiff. Although Salone visited her daughter on weekends, she rarely took the child for visitation overnight. On August 11, 2005, an order was entered granting residential custody of the child to plaintiff.

On December 7, 2005, when the child was two years old, and while she still resided with plaintiff, the court ordered a paternity test. The test revealed that plaintiff was not the biological father. After spending a weekend with the child in December 2005, Salone did not return the child to plaintiff. Instead, she took the child to Georgia to live with defendant Brian Jenkins, who was found by a paternity test to be the child's biological father.

Approximately one month later, in January 2006, in light of the paternity test establishing that plaintiff was not the child's father, the Family Part vacated the August 11, 2005 order of custody, and granted custody of the child to Salone.

Two months later, on March 22, 2006, the court denied plaintiff's motion for custody and visitation. On June 9, 2006, the court issued a domestic violence final restraining order against plaintiff prohibiting him from having any contact with Salone and the minor child. A few months later, the court permitted Salone and Jenkins to change the child's name on her birth certificate to reflect her father's surname.

In January 2007, more than a year after Salone took the child to Georgia, plaintiff filed a complaint in which he sought an order requiring Salone to immediately return the child to his custody. On February 21, 2007, after a hearing, the judge denied without prejudice plaintiff's request for immediate return of the child to his custody and for parenting time. The court did, however, order plaintiff and Salone to undergo a Best Interest/Custody/Parenting Time evaluation.

Over the next several months, the court entered repeated orders directing Salone to cooperate with the court-ordered evaluation. Finally, on June 25, 2007, Salone admitted for the first time that she was unable to produce the child for the court-ordered evaluation because the child had been living with Jenkins in Georgia for quite some time. On July 17, 2007, the court ordered Jenkins to immediately return the child to New Jersey, and required Salone to have the child evaluated no later than August 3, 2007.

Before that evaluation could take place, however, Jenkins moved on July 26, 2007, for a stay of all previous orders requiring the child's return to New Jersey. He also moved under the New Jersey Uniform Child Custody Jurisdiction Enforcement Act (NJUCCJEA), N.J.S.A. 2A:34-54 to -95, to dismiss the matter for lack of jurisdiction. After a hearing on September 13, 2007, Judge Toto issued a written decision on November 2, 2007, finding that the Superior Court of New Jersey should decline to exercise continuing jurisdiction in light of the lengthy period of time in which the child resided outside of New Jersey and had not seen plaintiff.

Notably, the judge found that although plaintiff and Salone each live in New Jersey, the child has not lived here since December 2005. After December 2005, the child returned to New Jersey only once "for a short period of time" in February 2006 for the paternity test. The judge determined that the child has resided in Georgia with Jenkins ever since December 2005. During that time, she "has been attending school in Georgia and is involved in activities such as Tae Kwon Do, church, violin, and has received [her] medical care [there]."

The judge also concluded that even though the child had been absent from New Jersey for nearly two years, New Jersey had the prerogative of retaining jurisdiction because New Jersey had made the initial custody order; however, because the "State of Georgia is in a better position to address the issues presented, [t]this court . . . decline[s] to exercise continuing jurisdiction."

The judge based that finding upon several of the "inconvenient forum" factors that are set forth in N.J.S.A. 2A:34-71: the history of domestic violence between plaintiff and Salone; the child's residence in Georgia since December 2005; the considerable distance between Georgia and New Jersey that the child, the father and the father's witnesses would be forced to travel were New Jersey to retain jurisdiction; the child's insignificant contact with New Jersey; the defendant father's lack of any contact with this State; plaintiff's failure to appeal the March 2006 order that changed custody from him to Salone; plaintiff's one year delay after the child left New Jersey in December 2005 before filing his complaint for custody in January 2007; and plaintiff not having seen the child since December 2005. Consequently, the judge entered an order on November 27, 2007, that dismissed plaintiff's complaint for custody, conditioned upon the prompt commencement of proceedings in the State of Georgia, where the child now resides. Plaintiff appealed.

II.

Although we defer to the trial judge's findings of fact so long as those findings are supported by substantial and credible evidence in the record, Cesare v. Cesare, 154 N.J. 394, 411-12 (1998), our review of the judge's legal conclusions is de novo, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Pursuant to the NJUCCJEA, once a state renders an initial custody determination, that state gains "exclusive, continuing jurisdiction" over the custody dispute. N.J.S.A. 2A:34-66(a). However, the jurisdictional analysis is not over once New Jersey is deemed a child's home state, because neither the statute nor New Jersey law requires "blind obedience" to home state jurisdiction. In re Menq, 376 N.J. Super. 641, 644 (Ch. Div. 2004). When the "'relationship between the child and the [parent] remaining in the State with exclusive, continuing jurisdiction' . . . becomes too attenuated, 'exclusive, continuing jurisdiction' is lost." Griffith v. Tressel, 394 N.J. Super. 128, 145 (App. Div. 2007) (citation omitted). Accordingly, we must decide "whether, during the time between the initial order and the filing of the motion for modification, circumstances have changed so as to divest this state of [its] jurisdiction." Id. at 140.

The relevant portion of the NJUCCJEA is N.J.S.A. 2A:34-66(a), which provides:

a. Except as otherwise provided in section 16 of this act [2A:34-68], a court of this State that has made a child custody determination consistent with section 13 or 15 of this act [2A:34-65 or 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 a 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 relationship; 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).]

Salone has resided in New Jersey ever since the child's birth; therefore, N.J.S.A. 2A:34-66(a)(2) is inapplicable. Consequently, if New Jersey has lost jurisdiction, it can only be as a result of N.J.S.A. 2A:34-66(a)(1), which provides that New Jersey's jurisdiction is lost if the child and one parent no longer have a "significant connection" to this State and "substantial evidence" concerning the child's well-being is "no longer available" here. N.J.S.A. 2A:34-66(a)(1).

Even if the application of those two factors does not warrant a surrender of New Jersey's jurisdiction, New Jersey is entitled nonetheless to relinquish its jurisdiction if New Jersey has become an inconvenient forum. N.J.S.A. 2A:34-71.

That statute provides, in relevant part:

a. A court of this State that has jurisdiction under this act to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon the court's own motion, request of another court or motion of a party.

b. Before determining whether it is an inconvenient forum, a court of this State shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:

(1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(2) the length of time the child has resided outside this State;

(3) the distance between the court in this State and the court in the state that would assume jurisdiction;

(4) the relative financial circumstances of the parties;

(5) any agreement of the parties as to which state should assume jurisdiction;

(6) the nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;

(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(8) the familiarity of the court of each state with the facts and issues of the pending litigation.

c. If a court of this State determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper. [N.J.S.A. 2A:34-71.]

We are satisfied that Judge Toto's findings of fact are based upon substantial and credible evidence in the record. We therefore defer to those findings. Cesare, supra, 154 N.J. at 411-12. The judge's conclusions of law, which are based on an application of the "inconvenient forum" factors contained in N.J.S.A. 2A:34-71, are comprehensive and well-reasoned. As such, we have been presented with no meritorious basis upon which to disturb them.

Plaintiff argues that Judge Toto erred by disregarding Salone's "act of domestic violence" when she removed the child to Georgia in direct violation of the August 11, 2005 custody order. However, that argument lacks sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We add only the following comment. Plaintiff is not the biological parent of the child; therefore, he lacks standing under N.J.S.A. 9:2-2 to object to her removal.*fn1

Affirmed.


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