Submitted October 17, 2018
appeal from Superior Court of New Jersey, Chancery Division,
Family Part, Bergen County, Docket No. FD-02-0659-16.
& Jacobs, attorneys for appellant (Barbara E. Cowen, on
Respondent has not filed a brief.
Judges Ostrer, Currier and Mayer.
appeals from the Family Part's June 26, 2017, order
denying her motion to dismiss the custody matter commenced by
plaintiff, P.H., the father of the parties' twin girls.
Having considered defendant's arguments in light of the
record and applicable principles of law, we conclude the
Family Part initially exercised jurisdiction in 2016 based on
a mistaken finding that New Jersey was the children's
"home state," as the children did not reside here
for six consecutive months immediately before plaintiff filed
suit. See N.J.S.A. 2A:34-65(a)(1) (discussing the
role of the "home state" determination in
exercising initial child-custody jurisdiction); N.J.S.A.
2A:34-54 (defining "home state"). Furthermore, the
trial court should have determined, by the time it decided
defendant's motion to dismiss, that New Jersey lacked
"exclusive, continuing jurisdiction," because both
parties and their daughters had long been absent from New
Jersey, they lacked a significant connection here, and
substantial relevant evidence was no longer available here.
See N.J.S.A. 2A:34-66(a). In any event, New Jersey
had become an inconvenient forum. See N.J.S.A.
2A:34-71. We therefore reverse and remand for a stay of
further proceedings in anticipation of dismissal.
certifications supporting and opposing defendant's
motion, the parties dispute many aspects of their
relationship, including competing allegations of domestic
violence. We cannot resolve those controversies on a paper
record. However, some basic jurisdictional facts are
comes from South Dakota. In 2012, she met plaintiff in
Chicago, where they both were visiting. Their relationship
continued in South Dakota, where defendant became pregnant
and gave birth to the girls in June 2013. Sometime
thereafter, plaintiff returned to his home in New York City.
The children and defendant remained in South Dakota until
2015. Plaintiff periodically visited them there, although
defendant alleged the visits were marked by acts of domestic
violence against her.
2015, defendant and the children travelled east to live with
plaintiff. The parties dispute whether defendant intended her
move to be permanent. Initially, they spent time in a
campground in New York, utilizing defendant's RV. They
also spent time at the New York City apartment where
plaintiff lived with his mother. Defendant alleged she was a
victim of assault at the campground, prompting her to file a
New York domestic violence incident report.
15, 2015, plaintiff signed a lease for a house in Dumont.
Defendant was not a signer. Although plaintiff maintains that
defendant's and the children's residence in New
Jersey began when he signed the lease, he does not dispute
that defendant did not arrive in New Jersey with the girls
until July 18, 2015.
allegedly assaulted defendant again, in Dumont, prompting
defendant to file a domestic violence complaint, and to
secure a temporary restraining order (TRO) from the Family
Part on December 14, 2015. The court ejected plaintiff from
the Dumont home and granted defendant temporary custody of
the girls. However, two hearing dates for a final restraining
order were adjourned. On January 11, 2016, plaintiff alleged
defendant assaulted him almost a month earlier, and he
secured a TRO of his own. His TRO did not alter the custody
contends that on January 13, 2016, she packed up her things,
hired a mover (as reflected in a mover's inventory of the
same date), and left New Jersey with the children, arriving
in South Dakota on January 15, 2016. Plaintiff does not
dispute those factual allegations. Indeed, he alleged that
defendant attempted to wrongfully cash a check of his in
Illinois on January 14, 2016. Shortly thereafter, plaintiff
returned to New York.
Family Part dismissed defendant's domestic violence
complaint after she failed to appear on January 28, 2016, for
the final restraining order hearing. The same day, plaintiff
filed the instant case, seeking a determination of paternity
and custody. He attempted to serve defendant by mail at her
father's residence in Sturgis, South Dakota. But
defendant was living in a different county without notifying
plaintiff or the court, allegedly to prevent plaintiff from