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Kamran Chaudhri v. Raelene Birkett

August 16, 2011

KAMRAN CHAUDHRI, PLAINTIFF-APPELLANT,
v.
RAELENE BIRKETT, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FD-09-1605-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 25, 2011

Before Judges Yannotti, Espinosa and Skillman.

The parties, who have never married, had a child together, "R.," in April 2007 when both were residents of New York. Thereafter, plaintiff moved to New Jersey. Each of the parties filed complaints for custody within days of each other in December 2009, the plaintiff in New Jersey and defendant in Kings County, New York. After communicating with the judge handling the matter in New York, the judge in New Jersey deferred jurisdiction to New York, where custody was awarded to defendant. Plaintiff appeals from an order that dismissed his complaint for custody, acknowledged the exercise of jurisdiction in New York and directed that all further motions and applications should be filed in New York. For the reasons that follow, we affirm.

After plaintiff acknowledged paternity in May 2007, the parties entered into an informal agreement regarding custody, visitation and support that appears to have been satisfactory until late 2009. Plaintiff described the arrangement as one in which they were "splitting time with [R.] almost equally since birth. In defendant's brief, she states they agreed she would have primary residential custody, he was allowed liberal visitation rights, and they "co-parented their daughter and shared in decision making equally" until November 2009.

On December 4, 2009, plaintiff filed a complaint for custody of R. in New Jersey in which he alleged defendant was "morally unfit to be entrusted with the care, custody, education and the maintenance" of R. and that the complaint was necessitated by her "erratic and unpredictable behavior coupled with poor parenting and decision making."

In filing the application for custody, plaintiff was required to comply with the requirements of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).*fn1

Specifically, N.J.S.A. 2A:34-73(a) states that, unless a party seeks an exception to such disclosure,

[E]ach party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, under oath as to the child's present address, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period.

Plaintiff failed to provide the specific information required. Instead, he represented that R. "presently is in [his] custody[.]" In a supporting certification, plaintiff also stated that R. "spends the majority of her time with [him] in Hoboken, NJ, although the defendant has a generous visitation schedule." Not only did these statements fail to satisfy the statutory requirements, they were contradicted by other representations in his complaint and supporting certification. In his complaint, he states he had been trying to secure a written custody and support agreement with defendant since R.'s birth and had only succeeded in getting "an oral agreement splitting custody[.]" His supporting certification includes similar statements regarding splitting time "almost equally." His assertion of having custody is further undercut by complaints in his certification about defendant "currently keeping [R.] away from [him]," canceling a dental appointment to prevent him from seeing R., and references to dates he was "scheduled to have [R.]" that defendant thwarted by keeping R. out of daycare. It can reasonably be inferred from these complaints that defendant, rather than plaintiff, had primary authority over R.'s schedule.

On the day after she was served with the complaint, defendant filed a petition for custody, dated December 8, 2009, in Kings County, New York. In her petition, defendant complied with the requirements of the UCCJEA, providing the name, date of birth, and address of R., and, as to R.'s residence for the last five years, stated that R. lived with her at her Brooklyn address since birth. See N.J.S.A. 2A:34-73; N.Y. Dom. Rel. Law §76-h. The New York court scheduled a hearing for January 6, 2010.

After being served with defendant's petition, plaintiff filed an order to show cause in which he asked the New Jersey court to assume jurisdiction, award primary custody of the child to him and parenting time to defendant, secure his previously agreed upon time with the child at Christmas and the production of the child's birth certificate and social security card. Still, he did not provide the information required by N.J.S.A. 2A:34-73. The New Jersey court responded to what it described as "an emergency application for custody," by conducting a hearing on December 23, 2009. Defendant, who appeared pro se, stated she was informed of the hearing by email that morning. Upon inquiry from the court, she also stated she and R. had lived in Brooklyn for three years; she had lived in New York City prior to R.'s birth and she had never lived in New Jersey. The court declined to decide the custody issue that day, stating,

There may be issues involving jurisdiction as to whether New York should hear this case or, New Jersey should hear this case. And that may require a plenary hearing where people have to testify, whether it be here or in New York.

Accordingly, the trial court limited its rulings to a temporary custody order that covered visitation during Christmas Eve and Day, confirmed plaintiff's ability to pick their child up from day care, and ordered the parties to appear for a hearing on January 15, 2010.

Defendant appeared in Kings County Family Court on January 6, 2010, represented by counsel. Plaintiff declined to appear and his counsel did not appear due to a conflict. The court adjourned the matter until January 8, 2010.*fn2

On January 7, 2010, plaintiff filed a second order to show cause, asking, among other things, for the court to assume jurisdiction to the exclusion of the Kings County court. Although he provided a schedule to support his contention that R. spent more nights with him than with defendant in the last year, plaintiff still failed to provide the detailed information required by N.J.S.A. 2A:34-73.

Plaintiff again asked the court to assume jurisdiction to the exclusion of the Kings County court. His attorney contended that plaintiff was the "defacto" parent of primary residence because he had eighteen more overnight visits than defendant in the last year. Defendant's attorney, who had twenty minutes to prepare for the hearing, disputed this contention. He stated, "[f]irst and foremost," the case presented "a question of jurisdiction" and represented that he could present evidence showing the child was born in New York, went to day care in New York, her primary doctors since her birth are in New York and defendant had the child more days than plaintiff - in New York.

The trial court noted that, pursuant to an order entered in New York in December, the return date on defendant's petition was January 6; neither plaintiff nor his attorney appeared, and the New York court proceeded in their absence. Accordingly, the New Jersey court entered an order directing the parties to appear before the Kings County court for the scheduled appearance on January 8, 2010, and before the New Jersey trial court on the previously scheduled date of January 15, 2010 (Pa47).

During the course of the January 7 proceedings, the judge indicated his availability to be contacted by telephone when the parties appeared in court in New York at 3:00 p.m. on the following day. The judge stated, "I want someone to . . . call me tomorrow at three o'clock, 3:30 and let me know what's going on, if I can participate in helping the case move along; on either side, New Jersey or New York." Neither attorney objected to telephone contact between the two judges. In fact, plaintiff's counsel stated he had the Kings County judge's telephone number with him and was going to suggest such a ...


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