P.H. v. L.W.

196 A.3d 1007, 456 N.J. Super. 630
CourtNew Jersey Superior Court Appellate Division
DecidedNovember 13, 2018
DocketDOCKET NO. A-5345-16T4
StatusPublished
Cited by2 cases

This text of 196 A.3d 1007 (P.H. v. L.W.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
P.H. v. L.W., 196 A.3d 1007, 456 N.J. Super. 630 (N.J. Ct. App. 2018).

Opinion

OSTRER, J.A.D.

*633Defendant 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 *634gave 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.

*1009On 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.

*635The 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 finding her. Her father certified that he did not forward the mail to his daughter until late October or early November 2016.

In the meantime, defendant sought an order of protection in South Dakota, obtaining a temporary order on January 27, 2016, and a final one on March 8, 2016. The order granted defendant custody of the children.

Defendant did not appear in the New Jersey action. The court entered an order March 17, 2016, requiring defendant and the children to submit to genetic testing to determine paternity. She failed to comply - allegedly because she was still unaware of the action. On September 1, 2016, the Family Part entered an order compelling defendant to return to New Jersey with the children. Presumably based on plaintiff's representations, the court found that defendant "removed the minor children from the State of New Jersey without consent where they had reside[d] for a period in excess of 6 months." The court found that the State had "home state jurisdiction" pursuant to N.J.S.A. 2A:34-54.

On October 25, 2016, the Family Part restated - again without defendant's participation - that New Jersey was the twins' home state, as plaintiff alleged that defendant and the children had resided there for over six months. The court ordered her to return to New Jersey and issued a bench warrant for her arrest. The court also granted plaintiff temporary sole legal custody of the twins, "to effectuate their return to New Jersey where the issues of paternity and custody need to be addressed by this Court."

Armed with that order, plaintiff sought the South Dakota court's modification of its March 2016 order granting defendant *636custody. Defendant opposed the motion, challenging the service of the New Jersey action. On March 3, 2017, after conferring with the New Jersey Family Part judge, *1010the South Dakota judge agreed with the Family Part's finding that New Jersey was the girls' home state. The South Dakota court vacated the custody portion of its protection order, but maintained "limited, temporary, concurrent custody jurisdiction" to enforce sanctions for willful disobedience of orders from both courts. Consistent therewith, the South Dakota court ordered defendant to comply with the genetic testing order. Defendant did so, and the test confirmed plaintiff's parentage. On March 31, 2017, the South Dakota court entered an order abdicating its "limited custody jurisdiction" and declaring that New Jersey was the proper jurisdiction to decide custody.

In April and May 2017, defendant challenged New Jersey's jurisdiction in both New Jersey and South Dakota courts.

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Bluebook (online)
196 A.3d 1007, 456 N.J. Super. 630, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ph-v-lw-njsuperctappdiv-2018.