On appeal from Superior Court of New Jersey, Chancery Division - Family Part, Middlesex County, Docket No. FD-12-274-06F.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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 ...