Superior Court of New Jersey, Chancery Division, Essex
September 19, 2019
Clementine Bata, plaintiff pro se.
Konan, defendant pro se.
matter comes before the court on plaintiffs application and
defendant's counterclaim. In her application, plaintiff
seeks, among other things, an initial custody determination
concerning the parties' minor child. In his counterclaim,
defendant opposes plaintiffs application and contests
jurisdiction. Plaintiff, the child's natural mother,
resides in New Jersey. Defendant, the child's natural
father, resides in New York.
on the written submissions and limited testimony taken on the
initial hearing date, the court found that a plenary hearing
was necessary. At the plenary hearing, which was held on
December 5, 2018, both plaintiff and defendant testified. No
other witnesses were called.
court has considered the testimony of the parties,
documents admitted into evidence and the arguments presented.
Following are the court's findings of fact and
conclusions of law.
parties are not married and live separate and apart from one
another. They have one child, a daughter. The child, who was
born on October 9, 2015, was three years old at the time of
the hearing. Plaintiff, the child's mother, resides in
New Jersey. Defendant, the child's father, resides in New
York. On August 22, 2018, plaintiff filed an application
seeking sole legal custody of the child, physical custody and
an order for support. Defendant opposes plaintiffs
application and contests jurisdiction.
reasons set forth herein, the court finds that New Jersey
does not have jurisdiction to make a custody determination.
and defendant met and began their relationship in the summer
of 2014. Notwithstanding that the relationship had its ups
and downs, plaintiff in March 2015 found herself to be
pregnant by defendant. The pregnancy caused additional stress
between the parties and plaintiff ended the relationship.
parties remained apart until about the fifth month of
plaintiff s pregnancy. Around that time, plaintiffs parents
had visited from Paris. They advised plaintiff to work
towards re-establishing her relationship with defendant.
Plaintiffs parents emphasized their belief that doing so
would facilitate the child knowing his or her father. On
plaintiffs initiative, the parties re-established their
relationship with defendant being supportive of plaintiff and
their unborn child. At that time, plaintiff resided in New
Jersey and worked as a flight attendant, based out of New
York. Defendant was residing in New York and did not work
outside of the home.
parties decided that plaintiff would deliver the child at a
hospital in Jersey City, New Jersey and she did so on October
9, 2015. After giving birth, plaintiff took three months off
from work to care for the child. During that time, the child
stayed with plaintiff in New Jersey. Defendant commuted from
New York to visit and help with the child.
credible testimony showed that her employment required that
she regularly work overnight flights outside of the United
States - sometimes for multiple days. Due to her work
schedule, plaintiff oftentimes was absent from home. When
plaintiff was away, the parties either arranged for a
babysitter, or would have defendant stay with the child in
New Jersey. At that time, both parties felt that the child
was too small to travel to New York to stay with defendant.
before the child's first birthday, the parties changed
the arrangement and the child began spending time both in New
Jersey, and in New York. On occasion, plaintiff would travel
to New York and stay with defendant and the child. Then,
around March 2017, plaintiff ended the parties'
relationship. From that time forward, although the child
continued to spend time with each parent and in each state,
plaintiff ceased travelling to defendant's residence in
takes the position that during the relevant time period, New
York was the child's home state for purposes of
jurisdiction. Plaintiff takes the contrary position and
asserts that jurisdiction is proper in New
considering the testimony of the parties, the documents
submitted into evidence and the arguments made, the court
agrees with defendant. The court finds that New York, not New
Jersey, was the child's home state during the six months
prior to when plaintiff filed her application. As such, this
court does not have jurisdiction.
the time prior to when she filed her application for custody,
plaintiff worked as a flight attendant. The credible
testimony showed that plaintiffs employer was inflexible with
respect to scheduling. Plaintiff had to accept the work
schedule offered, even if it contained overnight flights
spanning multiple days. After the child was born, plaintiff
was, however, able to reach an agreement with her employer
that allowed her to work less than full time. Under that
arrangement, plaintiff worked alternating months. Plaintiff
would be "on" (available for work) for a month, and
"off (not working) the following month.
parties had discussed the month on, month off work
arrangement. Plaintiff anticipated that once her new work
arrangement was in place, she and defendant would each have
an equal share of time with the child. The evidence showed
that the arrangement did not work as plaintiff had
anticipated. The credible testimony of both parties was that
defendant had the child for significant periods of time even
during the times the plaintiff was not working.
herself testified that she would be on flights for
approximately fourteen to sixteen days during the months when
she was working. She further testified that during those
times, the child stayed with defendant in New York. Moreover,
the testimony from both parties showed that even during the
times when plaintiff was not working, the child spent every
weekend in New York, spent additional time in New York for
ongoing programs and activities, and as requested by
defendant. From this credible testimony, the court finds that
even when plaintiff was available to have the child in New
Jersey, activities and events in New York, and
defendant's requests took precedence.
respect to activities and programs, defendant's credible
testimony showed that virtually all of the child's
school, church, programs and regular activities take place in
New York. The child's pre-school, the charter school
where she will attend kindergarten, and the church that she
regularly attends and where she participates in additional
programs, are all in New York.
particular, defendant's credible testimony showed that
the child completed the "Baby College" program at
the Harlem Children's Zone located on East 125th Street,
New York, New York (Children's Zone). The Baby College
program is for children age newborn to three years. Defendant
credibly testified that the child has consistently attended
programs at the Children's Zone. The child has been
accepted into the Promise Academy, which is part of the
Harlem Children's Zone. After the child finishes the
Promise Academy program, she will attend Promise Charter
School in Harlem. Promise Academy is located approximately
five blocks from defendant's residence in New York. The
undisputed testimony also showed that the child regularly
attends age appropriate programs at The Abyssinian Baptist
Church in New York, New York. The Church programs, which
start Sunday at 10:00 a.m., include breakfast, classes and
evidence adduced at the hearing shows that all of the
programs that have continuity take place in New York. There
was no evidence that the parties at any time had made plans
for the child to attend school, church or ongoing programs in
New Jersey. The court recognizes that the child spent time
with plaintiff, and had some health care in New Jersey. The
court finds, however, that the times the child spent in New
Jersey were in the nature of temporary absences from New
court finds that the arrangement described above lasted for
at least the six months prior to when plaintiff filed her
evidence showed that defendant notified his landlord that a
child was residing in his apartment and appropriate window
guards were installed. Defendant has also established a bank
account for the child in New York. For her part, plaintiff
credibly testified that the child is listed on the lease for
the apartment in New Jersey. In addition, the child's
social security card and passport list her address as being
in New Jersey, she has a Women, Infants and Children (WIC)
card from New Jersey and she is enrolled in New Jersey Family
respect to medical care, defendant testified that the child
had a check-up in New York on September 14, 2018. That
check-up was required in order for the child to attend
programs at the Harlem Children's Zone. While defendant
testified that he is looking for a doctor for the child in
New York, other than the check-up noted above, the
child's health care has been provided in New Jersey. The
court notes, however, that except for an issue concerning low
iron, the child's health care mainly involves routine
court has considered the testimony of the witnesses and has
reviewed the documents admitted into evidence. Having done
so, the court now applies the facts to the law in order to
court's jurisdiction with respect to child custody is set
out in the New Jersey Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA). The UCCJEA was adopted in 2004 and
is codified at N.J.S.A. 2A:34-53 to -95. New Jersey enacted
the UCCJEA "in an effort to avoid jurisdictional
competition and conflict between jurisdictions in favor of
cooperation with courts of other states . . . as necessary to
ensure that custody determinations are made in the state that
can best decide the case." See Sajjad v.
Cheema, 428 N.J.Super. 160, 170-71 (App. Div. 2012).
Where jurisdiction is contested, the court must follow the
multi-step procedure outlined in the UCCJEA. Id at
171. In doing so, the court "must scrutinize the facts
and make specific findings supporting the court's
assumption or rejection of subject matter jurisdiction."
Id at 175.
case, there have been no prior custody proceedings, either in
New Jersey or in any other state, and no other proceedings
are pending. As such, the matter now before the court