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Khan v. Rajput

February 16, 2010

OSMAN KHAN, PLAINTIFF-RESPONDENT,
v.
AISHA RAJPUT, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-2477-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 4, 2010

Before Judges Rodríguez, Yannotti and Chambers.

Defendant appeals from an order entered by the trial court on January 28, 2009, which declared that New Jersey has jurisdiction to render a custody determination regarding the parties' two minor children, ordered plaintiff to pay child support, and directed that the children be brought to the United States from Pakistan. Defendant also appeals from an order entered on February 9, 2009, which denied her motion for reconsideration. We affirm.

I.

The following facts are pertinent to our decision. The parties are citizens of Pakistan, who were married there in September 2003. Previously, plaintiff had been living in the United States. He returned to this country On November 30, 2003, on a work permit. Defendant, who was trained as a physician in Pakistan, came to the United States on February 24, 2004, on a visitor's visa, to take a series of examinations so that she could practice medicine in this country. Defendant was pregnant at the time. According to plaintiff, the parties wanted their children to be born in the United States.

In August 2004, defendant gave birth to A.K. in Jersey City, New Jersey. A.K. resided with the parties in New Jersey until November 3 or 4, 2004, when defendant returned to Pakistan with A.K. According to plaintiff, defendant left the United States in order to comply with the terms of her visa, which required that she leave this country after six months but allowed her to return after a period of time. According to plaintiff, the parties agreed that defendant and A.K. would remain in Pakistan for one or two months. Plaintiff said that the parties' had a good relationship at the time.

Plaintiff communicated with defendant frequently while she was in Pakistan. Plaintiff asserted, however, that defendant "kept stalling" her return and gave him various "excuses" for not returning to the United States. In March 2005, the parties argued during a telephone call, and defendant told plaintiff that she would not be coming back to the United States.

In April 2005, plaintiff commenced an action in the Family Part, Hudson County, seeking custody of A.K. Plaintiff was apparently unaware that defendant had returned to the United States sometime in that same month and was living with her brother's friend on Long Island. The court entered an order dated April 22, 2005, which required defendant to show cause on May 20, 2005, why an order should not be entered granting plaintiff temporary physical and legal custody of the child; restraining defendant from interfering with custody; and fixing a visitation/parenting plan for the parties.

On May 22, 2005, the Family Part, Hudson County, entered an order dated May 20, 2005, dismissing the action without prejudice. The order declared that the court did not have jurisdiction to make an initial custody determination regarding A.K. because the child had only lived in New Jersey with his parents for two months. However, the court told plaintiff that if he was able to locate and serve defendant, he could return to court and pursue the matter.

In June 2005, plaintiff learned that defendant was in this country and went to see defendant. The parties reconciled and lived together at various times in Carteret, Woodbridge and Clifton. On October 25, 2005, defendant again returned to Pakistan, in order to comply with the terms of her visa. Plaintiff said that defendant agreed that she would come back to the United States with A.K. Plaintiff said that, at the time, the parties' relationship "was absolutely fine."

While defendant was in Pakistan, plaintiff communicated with her on a daily basis by telephone or text messaging. Plaintiff said that on November 1, 2005, defendant sent him a text message informing him that she was pregnant. In December 2005, plaintiff was involved in an automobile accident and was unable to continue his work as a limousine driver. According to plaintiff, defendant became irate at his financial situation and in January 2006, told him that she was not going to come back to the United States.

Nevertheless, in March 2006, defendant returned to the United States. The child remained in Pakistan. Defendant did not inform plaintiff that she had returned; however, plaintiff learned that defendant was back in this country. Despite this knowledge, plaintiff did not take any action at the time to obtain custody of A.K. In early June 2006, defendant gave birth to a second child, I.R., in Edison, New Jersey.

Defendant did not inform plaintiff that she had given birth to I.R. nor did she identify plaintiff as the father on the child's birth certificate. Even so, one of defendant's relatives told plaintiff of the child's birth. Plaintiff went to the police and informed them that he was concerned that defendant "would run away" with the child. The police told plaintiff that he had to obtain a custody order from the court before he could file a criminal complaint.

Plaintiff thereafter commenced an action in the Family Part, Passaic County, seeking custody of A.K. The court entered an order dated June 7, 2006, which granted plaintiff temporary custody of A.K. and ordered defendant not to remove the child from the State. However, as we noted previously, A.K. was still in Pakistan.

The Family Part, Passaic County, entered another order dated July 25, 2006, which provided that the June 7, 2006 order would remain in effect and directed that defendant be located for purposes of considering issues related to the custody and parentage of I.R. Plaintiff also filed complaints with law enforcement authorities in Clifton, Weehawken and Edison, alleging that defendant had "abducted" A.K. These complaints led to the issuance of warrants for defendant's arrest, which later were converted into federal warrants.

Defendant left the United States with I.R. on June 27, 2006, and took the child to Pakistan, where he has remained since. According to defendant, I.R. required surgery to correct a club foot. In February 2007, when defendant returned to the United States to work as a volunteer at a hospital in Iowa, she was arrested at the airport in Chicago on the federal warrants. After defendant was released from custody, she returned to New Jersey to deal with the pending charges.

In March 2007, upon plaintiff's application, the court in the Passaic County case entered an order declaring that plaintiff had sole temporary custody of I.R. The court ordered defendant to immediately return A.K. and I.R. to the United States and plaintiff's custody. The court also ordered defendant to show cause why plaintiff should not be awarded permanent custody of the children. The court entered another order on August 20, 2007, continuing the restraints in its June 7, 2006 order and scheduling a plenary hearing on the issue of jurisdiction.

On February 6, 2008, plaintiff withdrew his complaint in the Passaic County action and the orders entered in that action were vacated. Plaintiff said that he withdrew the complaint because he was advised that it had been filed in the wrong county. On February 14, 2008, plaintiff filed a motion in the previously-dismissed Hudson County case, seeking reconsideration and/or relief from the order entered on May 22, 2005 order which had dismissed his complaint without prejudice.

The trial court conducted a hearing on the jurisdictional question and on January 28, 2009, delivered a lengthy decision from the bench. The court found that it had jurisdiction under the New Jersey Uniform Child Custody Jurisdiction and Enforcement Act, N.J.S.A. 2A:34-53 to -95 (the "UCCJEA"), to render initial child custody determinations regarding the children. The court awarded sole legal and physical custody of the children to defendant and ordered plaintiff's sister to return the children to the United States by February 20, 2009. The court entered an order on that date setting aside the order entered on May 22, 2005.

Defendant thereafter filed a motion seeking reconsideration of the court's January 28, 2009 order and a declaration that Pakistan is the children's "home state" for purposes of the UCCJEA. Defendant also sought a stay of the provision of the order requiring the children's return to the United States by February ...


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