NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 22, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FD-03-68-12.
J.P. Reilly, Jr., attorney for appellant.
R. Douglas Hoffman, attorney for respondent.
Before Judges Reisner and Ostrer.
Defendant Brian Douglas (father or defendant) appeals from a July 10, 2012 Family Part order relinquishing the New Jersey court's jurisdiction with respect to custody and child support. We conclude that the order was entered in error, in the middle of an as-yet-undecided custody dispute; that dispute included plaintiff Nichole White's (mother or plaintiff) application to permanently relocate the parties' child to Georgia. Accordingly, we reverse and remand to the Family Part for further proceedings consistent with this opinion.
We recite the procedural history at some length because it illustrates how this matter went awry. The parties, who are not married, had a child while they were living in New Jersey. They had a contentious relationship. After their relationship ended, the father, who was still living in New Jersey, filed an order to show cause (OSC) seeking custody of the child and seeking to enjoin the mother from taking the child to Georgia. The mother, who was living with the child in New Jersey, filed a response, seeking permission to move with the child to Georgia. See Baures v. Lewis, 167 N.J. 91 (2001).
By order dated September 9, 2011, a Family Part judge awarded joint legal custody of the child to both parents, but temporarily designated the mother as the primary residential parent, with the father to have visitation rights on a set schedule. The order also ordered the parties to share the expense of a custody neutral assessment (CNA) and set a November 7, 2011 date for a further decision on the parties' competing claims for child custody and a Baures hearing. The order also restrained the mother from taking the child to Georgia.
However, the mother later filed an OSC seeking permission to temporarily take the child to Georgia, where they would live with plaintiff's parents. She claimed she was unemployed and would become homeless if she remained in New Jersey. In her certification in support of the OSC, the mother acknowledged: "I realize that I am subject to the jurisdiction of this Court, I realize that I will be required to come back for a hearing . . . and I also realize that New Jersey will continue to be the home state for jurisdictional purposes."
By order dated November 22, 2011, the Family Part judge granted the mother's application to "temporarily remove the minor child . . . to Georgia" conditioned on her returning with the child for an additional hearing on December 12, 2011. The order stated that if the CNA still had not been "done by December 12, 2011, " the court would "conduct a further hearing regarding plaintiff being able to remain in Georgia with the child." On December 6, 2011, the mother filed her pre-hearing submission for the Baures hearing. Unfortunately, the Baures hearing was delayed, in part because the father delayed in submitting his share of the cost of the CNA.
By order dated December 12, 2011, the Family Part judge continued plaintiff's temporary permission to keep the child in Georgia. He also set up a visitation schedule for the child to be brought to New Jersey periodically for visits with the father at his parents' home in Swedesboro, New Jersey. The order specifically provided that "[t]he State of New Jersey shall keep jurisdiction of this matter." The order further set a schedule for filing of the father's pre-hearing Baures submissions, and provided that the court would thereafter schedule either a new hearing date or a case conference.
On January 31, 2012, a second Family Part judge entered a child support order. On February 3, 2012, the father filed his Baures pre-hearing submissions, strenuously objecting to the mother's plan to permanently relocate the child to Georgia. He stated that he lived in New Jersey and was training for a law enforcement career in New Jersey, and contended that the mother could as easily obtain employment in New Jersey as in Georgia. He also pointed out the hardship caused by having ...