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C.D v. G.S

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 27, 2012

C.D., PLAINTIFF-APPELLANT,
v.
G.S., DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FM-05-293-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 22, 2012 -

Before Judges J. N. Harris and Fasciale.

Plaintiff C.D. appeals from an order dated August 23, 2011, denying her request "to have her name put on [John's*fn1 ] birth certificate." We affirm.

In 2007, C.D. and G.S. entered into a civil union in New Jersey. In April 2008, G.S. gave birth to John at Pennsylvania Hospital in Philadelphia. John's birth certificate, issued by the Pennsylvania Department of Health, Division of Vital Records (the Pennsylvania DOH), did not include C.D.'s name.

In October 2008, the Family Part entered a final judgment terminating the parties' civil union. Earlier that month, the court entered an order awarding the parties joint legal custody of John, with G.S. designated as the primary physical caretaker. The order provided a parenting time schedule for C.D., as well as ensuring that C.D. enjoy access to John's educational and health records.

Over the ensuing months, disputes arose between C.D. and G.S. over access to John. While G.S. sought reconsideration of the court's custody determination, C.D. filed a complaint for adoption. After a plenary hearing that spanned several hearing dates, the court declined to modify custody, and C.D.'s adoption complaint was dismissed. A child support obligation was also imposed upon C.D. for John's benefit. No appeals ensued.

Apparently unbeknownst to G.S., C.D. attempted to modify John's birth certificate to add C.D.'s name as a parent. The Birth Correction Unit of the Pennsylvania DOH rebuffed C.D.'s efforts, informing her by letter dated March 16, 2011, that if it were presented with a certified copy of a court order "that specifies that the Pennsylvania Department of Health, Division of Vital Records add [C.D.] as a parent," it "will determine if we can proceed with the correction." The letter cited no statutory or administrative authority for this potential action.*fn2

On July 8, 2011, C.D. filed a motion in the Family Part seeking the following relief:

Ordering that the Pennsylvania Department of Health, Division of Vital Records add the Plaintiff as "PARENT" on the birth certificate of the minor child of the parties, namely [John].

The motion neither sought to compel G.S. to consent to the modification of John's birth certificate nor to add the Pennsylvania DOH as a party. As far as the record reveals, the agency was never served with C.D.'s motion papers.*fn3 C.D.'s motion did not seek a declaration of parentage based upon New Jersey's Parentage Act, N.J.S.A. 9:17-38 to -59, although on appeal C.D. makes reference to some of the Act's provisions.

On August 23, 2011, the Family Part issued a Memorandum of Decision on Motion declaring that "the court not only does not have the jurisdiction, nor does it think it is appropriate to order the Pennsylvania Department of Health, Division of Vital Records to put Plaintiff's name on the birth certificate of [John]." The memorializing order stated, "Plaintiff's request to have her name put on [John's] birth certificate is denied." This appeal followed.

Although the question of jurisdiction is ordinarily a mixed question of law and facts, Citibank, N.A. v. Estate of Simpson, 290 N.J. Super. 519, 532 (App. Div. 1996), in this case there are no disputed jurisdictional facts. Accordingly, our appellate review of the Family Part's ruling on jurisdiction is a matter of law, which we consider de novo. W.J.A. v. D.A., 210 N.J. 229, 238 (2012) ("The trial court's conclusions of law and application of the law to the facts warrant no deference from a reviewing court.").

"Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact[s] and dismissing the case." Steel Co. v. Citizens for Better Env't., 523 U.S. 83, 94, 118 S. Ct. 103, 140 L. Ed. 2d 210, 227 (1998) (internal citations omitted). However, the Due Process Clause protects the rights of life, liberty, or property, which only the exercise of lawful power can deprive. J. McIntyre Mach., Ltd. v. Nicastro, ___ U.S. ___, ___, 131 S. Ct. 2780, 2786, 180 L. Ed. 2d 765, 774 (2011). Because C.D. was seeking a direct remedy against the Pennsylvania DOH -- "[o]rdering that the Pennsylvania Department of Health, Division of Vital Records add the Plaintiff as 'PARENT' on the birth certificate of the minor child of the parties, namely [John]" -- that agency was required to be haled into the Family Part.*fn4 In the absence of the party against whom relief was sought, the Family Part was rightly powerless to enter the remedy that C.D. sought.*fn5

Affirmed.


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