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P.H. v. L.W.

Superior Court of New Jersey, Appellate Division

November 13, 2018

P.H., Plaintiff-Respondent,
L.W., Defendant-Appellant.

          Submitted October 17, 2018

          On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FD-02-0659-16.

          Cowen & Jacobs, attorneys for appellant (Barbara E. Cowen, on the brief).

          Respondent has not filed a brief.

          Before Judges Ostrer, Currier and Mayer.


          OSTRER, J.A.D.

         Defendant L.W.[1] 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.

         In the 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 undisputed.

         Defendant 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.

         In June 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.

         On July 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.

         Plaintiff 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 arrangements.

         Defendant 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.

         The 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 ...

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