USA – NJ – IVALDI – 1996 (Family Part’s order is reversed) (Use of the UCCJA) IVALDI v IDALDI. This case is on appeal from the Family Part’s order directing the mother to return the child to the United States. The court held that the Family Part lacked subject matter jurisdiction and should have deferred to the divorce and custody proceedings that had already commenced in morocco.
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Ivaldi v Ivaldi (N.J.Super. 1996)288 N.J.Super. 575 [672 A.2d 1226]
2 International Abduction [USA 1996]
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Jean Jacques Marcel Ivaldi, Plaintiff-Respondent
v
Lamia Khribeche Ivaldi, Defedant-Appellant
Superior Court of New Jersey, Appellate Division
15 Mar 1996
BAIME, JAD.
001 <* page 1228> We granted defendant’s motion for
leave to appeal from the Family Part’s order directing her
to return her child to the United States, restraining her
from continuing custody proceedings in any other
jurisdiction, and awarding temporary custody of the child to
plaintiff. Defendant had taken the child to Morocco, where
the parties had resided before coming to the United States,
pursuant to a separation agreement which granted her sole
physical custody and permitted her to take up residence with
the child in another country. We hold that the Family Part
lacked subject matter jurisdiction and, in any event, should
have deferred to the divorce and custody proceedings that
had already commenced in Morocco.
1.
002 The facts are not in dispute. Plaintiff holds both
American and French citizenship. Defendant is a citizen of
Morocco. The parties were married pursuant to Islamic law by
a Moroccan court in 1992. Following their marriage, the
couple moved to France where their daughter Lina was born in
1993. In the latter part of 1993, the parties moved to
Morocco. When their business plans failed, the couple
emigrated to New Jersey, where plaintiff’s parents operated
a restaurant. While residing in New Jersey, the parties’
marital relationship deteriorated, causing plaintiff to
leave the family residence and move into his parents’ house.
003 On February 22, 1995, the parties entered into a
separation agreement under which they retained Joint legal
custody, but physical custody. was granted to defendant. The
agreement provided that defendant and Lina could take up
residence in another country so long as defendant abided
with the provisions of the agreement. Plaintiff was given
twelve weeks of visitation with the child each year in the
country where he resided, but was required to pay all travel
expenses incurred in connection with that visitation. The
period of visitation was to be determined by plain-tiff. In
turn, plaintiff was required Auto pay child support in the
weekly amount of $125 until Lina’s emancipation. The
agreement granted defendant permission to obtain a divorce
pursuant to Islamic law.
004 In the event of a breach of the agreement, the
non-breaching party was required to provide the defaulting
party with written notice of the breach by certified mail
and allow thirty days to cure the breach. The agreement,
which was to be interpreted according to the principles of
New Jersey law, was to be incorporated into any divorce
judgment obtained by the parties.
005 Within a week of the execution of the agreement, Lina
was sent to live with defendant’s parents in Morocco.
Defendant herself moved to Morocco in April 1995. Sometime
between April 27 and May 3, 1995, defendant filed a petition
for divorce and custody in the Primary Court of Rabat.
Plaintiff was served with the summons and complaint and was
ordered to appear before the Primary Court on October 16,
1995 for a hearing on the petition.
006 Plaintiff filed a complaint in the Family Part on May
2, 1995, in which he sought a judgment of divorce, equitable
distribution, sole custody of Lina, and child support.
Defendant was served with the summons and complaint on
August 8, 1995, and filed a motion to dismiss several days
later. The court denied defendant’s motion. Although the
Family Part judge’s oral opinion is not a paragon of
clarity, he apparently found that the New Jersey courts had
subject matter jurisdiction and that New Jersey constituted
Lina’s “home state.” The judge seemingly determined that
defendant had wrongfully removed Lina from New Jersey to
Morocco. We derive that interpretation from the judge’s
allusion to defendant’s holding the New Jersey courts
“hostage.” In any event, <* page 1229> the judge scheduled a
hearing to determine the child’s best interests, ordered
defendant to return Lina to the United States within a week,
and awarded plaintiff sole custody of the child pending
disposition of the issues. In addition, the judge restrained
defendant from proceeding with her petition for custody in
Morocco.
007 Defendant filed a motion for leave to appeal. We
granted a temporary stay pending disposition of the motion
and requested the Family Part judge to supplement his oral
opinion with a written statement of reasons. In his
supplemental opinion, the judge acknowledged that the
Uniform Child Custody Jurisdiction Act (N.J.S.4 2A34-28 to
-52) (UCCJA) was not applicable. The judge also noted that
the Hague Convention was not applicable because Morocco is
not a signatory to the treaty. The judge nevertheless
determined that New Jersey was Lina’s home state based upon
the length of time she had resided here. The judge also
found that defendant had removed Lina from New Jersey by
“subterfuge” and that the provision in the separation
agreement allowing defendant to take up residence in another
country with Lina was not applicable because defendant had
breached the agreement by refusing to permit plaintiff to
exercise his right of visitation. We granted defendant’s
motion for leave to appeal following receipt of the Family
Part judge’s supplemental opinion. We also continued our
stay of the Family Part’s order pending disposition of the
appeal, which has been accelerated.
II.
008 Initially, we find no basis in the record for the
Family Part judge’s conclusion that defendant wrongfully
removed Lina from New Jersey to Morocco. The separation
agreement clearly contemplated that defendant would leave
the United States with Lina and take up residence in another
country. This is not a matter of interpretation. The
agreement expressly granted defendant permission to take
this course.
009 So too, the record is barren of anything supporting
the judge’s finding that defendant breached the agreement by
denying plaintiff’s right of visitation. Although plaintiff
in his affidavit which accompanied his complaint alleged in
conclusoryfashion that he had not been permitted to visit
Lina, it is undisputed that he never made any support
payments as required by the agreement. He also neither
tendered nor offered to tender travel expenses, a
precondition to his right of visitation, until April 17,
1995. Moreover, plaintiff never gave written notice of the
alleged breach which would have triggered the opportunity to
cure the alleged default within thirty days. It is true that
on April 17, 1995, plaintiff’s lawyer represented in a
letter to defendant’s attorney that plaintiff was willing to
travel to Rabat to pick up the child and exercise his right
of visitation. However, defendant was reluctant to accept
this arrangement because of problems involving Lina’s
passport and her fear that the child would not be returned.
In any event, assuming that defendant’s refusal to accede to
plaintiff’s demand constituted a breach of the agreement,
this default occurred long after the child had been lawfully
removed from the United States to Morocco. Moreover,
plaintiff filed his complaint sixteen days after his
attorney’s demand, a clear violation of the provision in the
separation agreement allowing the defaulting party an
opportunity to cure within thirty days. Of course, once
plaintiff filed his complaint seeking custody in derogation
of the express terms of the agreement, defendant’s fear that
plaintiff would not return the child if visitation were
permitted became a concrete reality.
010 This is not a case in which a child was spirited away
from his or her custodial parent. The judge’s finding to the
contrary is clearly a mistaken one and is so plainly
unwarranted that the interests of justice demand our
intervention and correction. See State v. Johnson, 42 N.J.
146, 162, 199 42d 809 (1964). The judge went so wide of the
mark that a mistake must have been made. Ibid.
III.
011 The Family Part judge’s determination that the New
Jersey courts had subject matter jurisdiction was less than
precise. We <* page 1230> thus examine possible sources of
jurisdictional authority.
A. State Statutes
012 We agree with the judge’s determinetion that the
UCCJA is not applicable to thi case. The UCCJA was
formulated by the National Conference of Commissioners on
Uniform State Laws in response to the United States Supreme
Court’s failure to delineate in detail the extent to which
the Ful Faith and Credit Clause, U.S. Const. art. IV 1,
requires states to honor the child custody decrees of other
states. E.E.B. v. D.A. 89 N.J. 595, 602-03, 446 A.2d 871
(1982), cent denied, 459 U.S. 1210, 103 S.Ct. 1203, 75
L.Ed2d 445 (1983); see generally Neger v Neger, 93 N. J. 15,
24-25, 459 A.2d 628 (1983) Borys u Borys, 76 N. J. 103,
109-18, 386 A.2d 366 (1978). In line with the vast majority
o states, New Jersey enacted its version of the UCCJA in
1979. L.1979, c. 124, 1. According to the legislative
findings, the articulated objectives of the statute were to
avoic jurisdictional conflict between the courts of
different states in child custody matters, discourage
protracted child custody controversies in the interest of
promoting a stable environment for the child, deter child
abductions, ensure that a particular custody dispute is
decided in the state ‘with which the child and his family
have the closest connection,” and ”[flacilitate the
enforcement of custody decrees of other states” here in New
Jersey. N. J.S.A. 2A:34-29.
013 The focus of the UCCJA is thus on the relationship
between the states. Significantly, a “state” is defined as
“any state, territory, or possession of the United States,
the Commonwealth of Puerto Rico, and the District of
Columbia.” N.J.S.A. 2A:34-30j. Notable in its absence from
this definition is any reference to a foreign country.
Nevertheless, the UCCJA contains one provision dealing with
international custody disputes. Specifically, N.J.S.A.
2A:34-51 provides:
014 The general policies of this act extend to the
international area. The provisions of this act relating to
the recognition and enforcement of custody decrees of other
states apply to custody decrees and decrees involving legal
institutions similar in nature and to custody rendered by
appropriate authorities of other nations, if reasonable
notice and opportunity to be heard were given to all
affected persons.
[Ibid. ]
015 In a series of decisions, New Jersey courts have
construed this Section as conferring jurisdiction only where
the court is asked to recognize and enforce a custody decree
entered by the authorities of a foreign country. See Schmidt
v. Schmidt, 227 N.J.Super 528, 533, 548 A.2d 195 (App.Div.
1988); Loos u Manuel, 278 N.J.Super. 607, 621, 651 A.2d 1077
(Ch.Div.1994); Roszkowski v. Roszkowska, 274 N.J.Super. 620,
629, 644 A.2d 1150 (Ch.Div.1993). The Chancery Division’s
decision in Ali u Ali, 279 N.J.Super. 154 (Ch.Div.1994), is
not to the contrary. That case also involved a party’s
attempt to enforce a custody decree entered in a foreign
territory. Id at 158. To the extent that the Ali decision
can be read as asserting original jurisdiction over a
custody dispute involving a child residing in another
country, it is plainly inconsistent with Justice (then
Judge) Coleman’s opinion in Schmidt v. Schmidt, 227
N.J.Supe,: 528, 548 A.2d 195, that “[t]he UCCJA only applies
to an international child custody case when the State is
asked to recognize and enforce decrees of foreign
countries.” Id. at 533, 548 A.2d 195.
016 Schmidt and its progeny distinguish between the
exercise of original jurisdiction in a child custody dispute
and the enforcement of foreign decrees. This distinction
permeates the UCCJA. Our Supreme Court commented upon the
distinction in Neger v Neger, 93 N.J. 15, 459 A.2d 628.
There, the Court noted that “[t]wo main threads run through
the [UCCJA].” Id. at 25, 459 A.2d 628. “The first bears upon
when a state should exercise original jurisdiction in a
custody proceeding, that is, when no other state is in the
midst of custody proceedings or has made a custody award
after such proceedings.” Ibid. “The second significant
statutory strand relates to enforcement and modification of
a custody decree of another state.” Id. at 27, 459 A.2d 628.
017 Legal commentators have also discussed this
distinction. See, e.g., Brigitte M. Bodenheimer, The Rights
of Children and the Cri- <* page 1231> sis in Custody
Litigation. Modification of Custody In and Out of State, 46
U.Colo. L.Rev. 495, 501 (1975); Julia R. Rutherford, Note,
Removing the Tactical Advantages of International Parental
Child Abductions Under the 1980 Hague Convention on the
Civil Aspects of International Child Abduction, 8
Ariz.J.lat’l & Comp.Lau, 149, 152 (1991). This limitation
has been described in the following terms:
while the UCCJA is reciprocal WMH FN1 among those states
and territories of the United States which have enacted it;
it is not reciprocal between the United States and any other
country. While Section 23 of the UCCJA makes it applicable
to the international arena, the UCCJA does not contain
language providing for judicial reciprocity. Thus, the UCCJA
only recognizes and enforces foreign and domestic custody
decrees within the United States and its territories. A
state court in the United States, under the UCCJA, may
enforce custody or visitation rights ordered by a foreign
court against a United States citizen but it cannot order a
citizen of another country to return a child to the United
States. . . . In international child custody disputes,
United States courts should favor ICARA [International Child
Abduction Remedies Act, 42 U.S.C.A. 11601-11610] over the
UCCJA.
018 [Rutherford, Note, Removing the Tactical Advantages
of International Parental Child Abductions Under the 1980
Hague Couvention on the Civil Aspects of International Child
Abduction, 8 Ariz.J.Int’l & Comp.Law at 152.] WMH FN2
019 We do not suggest that this view is universal. Our
examination of the decisions of other jurisdictions
discloses that the issue has received uneven treatment.
Compare In re Stephanine M., 7 CaI.4th 295, 27 Cal.Rptr.2d
555, 867 P.2d 706, cert. denied sub nom Jose M. v San Diego
Cnty. Dep’t of Social Servs., — U.S.—, 115 S.Ct. 277,
130 L.Ed.2d 194, and cert. denied sub nom. Mendez v San
Diego Cnty. Dep’t of Social Servs., — U.S. —, 115 S.Ct.
337, 130 L.Ed.2d 294 (1994); Zenide v Superior Court, 22
Cal.App.4th 1287, 27 CaLRptr.2d 703 (1994); Ruppen v.
Ruppen, 614 N.E.2d 577, 582 (Ind.App.1993j, Dincer u Dincer,
666 A.2d 281, 284 (Pa.Super.1995); Black u Black, 441
Pa.Super. 358, 657 A.2d 964, app. denied, 668 A.2d 1119 (Pa.
1995) (applying UCCJA to international child custody
disputes and construing the definition of “State” to
encompass foreign nations) with Koons v Boons, 161 Misc.2d
842, 615 N.Y.S.2d 563, 567 (Sup.1994); Alien u Alien, 141
Misc.2d 174, 533 N.Y.S.2d 211, 214 (Sup.1988) (holding that
UCCJA applies to international disputes but that foreign
countries are not “states” for purposes of the statute). We
perceive no need to revisit the area in the context of the
facts presented here. We adhere to our opinion in Schmidt u
Schmidt, 227 N.J.Super. 528, 548 42d 195. The UCCJA is thus
inapplicable because this case involves the assertion of
original jurisdiction over a custody dispute involving a
child who resides in a foreign country. WMH FN3
020 We have examined other New Jersey statutes as well.
N.J.S.A. 2A:34-23 authorizes the Family Part to resolve
questions relating to alimony, maintenance and the “care,
custody, education and maintenance of . . . children.” We do
not construe this general grant of power as conferring
original jurisdiction in international custody disputes. But
see Macek u Friedman, 240 N.J.Super. 614, 618, 573 A.2d 996
(App.Div.1990). To do so would render nugatory most of the
provisions of the UCCJA. We are convinced that N.J.S.A.
2A:34-23 simply authorizes the courts to enter various
orders in matrimonial actions where subject.matter
jurisdiction otherwise exists.
021 We are also satisfied that N.J.S.A. 9:2-2 does not
confer jurisdiction. This statute prohibits the removal of
children of divorced or separated parents from New Jersey
without the consent of both parents unless by court order.
See Holder v. Polanski 111 N.J. 344, 544 A.2d 852 (1988);
Cooper u Cooper, 99 N.J. 42, 491 A.2d 606 (1984); Cerminara
u Cerminara, 286 N.J.Super. 448, 669 A.2d 837
(App.Div.1996). As noted above, plaintiff effectively
consented to the removal of Lina from New Jersey under the
separation agreement, and, in any event, this section is
inapplicable because it covers only children who are
“natives of this <* page 1232> State, or have resided five
years within its limits….” N.J.S.A. 9:2-2.
B. Federal Stlltutes
022 The Hague Convention on the Civil Aspects of
International Child Abduction (Hague Convention) was
ratified by the United States on April 29, 1988. Later that
same year, Congress passed the International Child Abduction
Remedies Act (ICARA), 42 U.S.C.A. 11601 to 11610, which
provided a set of procedures designed to implement the
treaty. See generally Duquette v. Tahan, 252 N.J.Super. 554,
556, 600 A.2d 472 (App. Div.1991). The ICARA confers
concurrent jurisdiction of all “actions arising under the
Convention” on the federal district courts and the courts of
the states. 42 U.S.C.A. 11603(a). Four jurisdictional
requisites must be satisfied to invoke the Hague Convention.
First, the nations involved must be signatories to the Hague
Convention. Roszkowski u Roszkowska, 274 N.J.Super. at 633,
644 A2d 1150. Second, “the party petitioning the court must
demonstrate that the child involved was ‘habitually resident
in a Contracting State [i.e., one which is a signatory to
the Convention] immediately before any breach of
custody….”‘ Ibid (quoting Hague Convention art. 4). Third,
the child must be under the age of sixteen. Id at 634, 644
A.2d 1150 (citing Hague Convention art. 4). Fourth, the
removal to or retention of the child in a country other than
the child’s habitual residence must have been wrongful. Id
at 635, 644 42d 1150 (citing Hague Convention art. 3). WMH
FN4
023 Plaintiff has failed to meet the first, second, and
fourth requirements for invocation of the Hague Convention.
First, Morocco is not a signatory to the Convention. Second,
plaintiff did not have custody rights in the child prior to
her removal from the United States, but merely visitation
rights. “[T]he Convention does not mandate the return of
children to the noncustodial parent for the purpose of
visitation.” Viragh u Foldes, 415 Mass. 96, 612 N.E.2d 241,
246 (1993). Although plaintiff and defendant have joint
legal custody under the separation agreement, the right to
custody as contemplated by the Convention consists of “‘in
particular, the right to determine the child’s place of
residence.”‘ Ibid. (quoting Hague Convention art. 5(a)). Any
fair reading of the separation agreement reveals that
plaintiff does not have that right. All he has under the
agreement is a “right of access” to the child. See Hague
Convention art. 5(b) (a complete copy of the Convention is
available as an appendix to this court’s decision in
Duquette v Tahan, 252 N.J.Super. at 563-79, 600 42d 472).
Breach of such a right does not trigger an automatic duty
under the Convention to return the child. Finally, as noted,
there is no evidence in the record to support a finding that
Lina was wrongfully removed from the United States. WMH FN
5
024 We have also reviewed the Parental Kidnapping
Prevention Act, 28 U.S.C.4 1738A (PKPA). The PKPA provides
that the courts of each state are required to enforce child
custody decrees entered by any sister state. 28 U.S.C.4
1738A(a). The federal statute is inapplicable because it
concerns only the enforcement in one state of decrees
previously entered by the courts of another state. Moreover,
there is nothing in the language or history of the PKPA
suggestive of a congressional intent to apply the statute to
decrees issued by foreign governments.
C.
025 We thus conclude that the Family Part lacked subject
matter jurisdiction in this case. In reaching this
conclusion, we nevertheless emphasize the limited contours
of our holding. We stress that there is no evidence in this
case indicating the child was kidnapped or otherwise
wrongfully removed from New Jersey to a foreign country. New
Jersey has long exercised parens patriae jurisdiction to
protect the safety and welfare of children having
substantial contacts with this State. See Fantony u Fantony,
21 N.J. 525, 535-36, 122 A2d 593 (1956); Lippincott v.
Lippincott, 97 N.J.Eq. 517, 519-21, 128 A. 254 (E. & A.
1925); Clemens u Clemens, 20 N.J.Super 383, 389-90, 90 A2d
72 (App.Div. 1952); Lavigne v. Family and Children’s Soc’y,
18 N.J.Super. 559, 575-76, 87 42d 739 (App.Div.1952), rev’d
on other grounds, 11 N.J. 473, 95 A2d 6 (1953). This
inherent <* page 1233> jurisdiction is not dependent upon
statutory grants. Clemens v Clemens, 20 N.J.Super. at 389,
90 A.2d 72. Indeed, there is authority for the proposition
that the inherent jurisdiction of the courts to protect
children residing or having a substantial connection with
New Jersey is more extensive than the grants conferred by
statute. Hachez v. Hachez, 124 N.J.Eq. 442, 446, 1 A.2d 845
(E. & A. 1938); Clemens v. Clemens, 20 N.J.Super. at 389-90,
90 A.2d 72. We Have no occasion to determine whether our
inherent jutisdiction might be implicated in other
circumstances.
IV.
026 Even were we to find that the Family Part had subject
matter jurisdiction, the result would not be different. In
our view, the court would have been obliged to abstain and
defer to the jurisdiction of the Moroccan court under
recognized principles of international comity. Comity “‘is
neither a matter of absolute obligation on the one hand, nor
of mere courtesy and good will upon the other.”‘ O.N.E.
Shipping Ltd. v. Flota Mercante Grancolombiana, S.A., 830
F.2d 449, 451 n. 3 (2d Cir.1987) (quoting Hilton v Guyot,
159 U.S. 113, 163-64, 16 S.Ct. 139, 143, 40 L.Ed 95 (1895)),
cert. denied, 488 U.S. 923, 109 S.Ct. 303, 102 L.E12d 322
(1988). It is the recognition which one nation allows within
its territory to the legislative, executive, or judicial
acts of another nation, having due regard to the rights of
its own citizens or of other persons falling within its
protection. Ibid In other contexts, it has been said that “a
court may abstain from [asserting] jurisdiction when the
extraterritorial effect of a particular remedy is so
disproportionate to harm within the United States as to
offend principles of comity.” Consolidated Gold Fields, PLC
v. Minorco, S.A., 871 F.2d 252, 263 (2d Cir.), cert.
dismissed, 492 U.S. 939, 110 S.Ct. 29, 106 L.Ed.2d 639
(1989); see also Virgin Atlantic Airways v. British Airways,
872 F.Supp. 52, 60-61 (S.D.N.Y.1994).
027 Nothing has been presented to the Family Part or this
court indicating that the question of custody cannot be
fairly resolved by the courts of Morocco. The record is
devoid of evidence suggesting in any way that the best
interests of the child will not be protected. Under these
circumstances, we believe that the Family Part should have
abstained even assuming that it had subject matter
jurisdiction.
Reversed.
——————–
1.
This is absolutely false. The UCCJA is not a
reciprocal law: “The Act is not a reciprocal law. It
can be put into full operation by each individual state
regardless of enactment of other states.”, quoting from
the Prefatory Note.
2. The Note of Rutherford ignores the plain language of
both The Convention and ICARA which hold that neither
The Convention nor ICARA limit the means of causing a
child to be returned to his or her habitual residence.
See Arts. 18 and 29; 42 U.S.C. 1160(h). For more
detail on the Non Exclusivity feature of The Convention
see Hilton, William M. The Non-Exclusivity of The
Convention on the Civil Aspects of International Child
Abudction American Journal of Family Law, Vol. 9, No.
2, Summer 1995. 9 Am.J.Fam.L. 69 (1995)
3. While the New Jersey Court at least acknowledges that
there are differing, and I believe sounder, views on
the application of Art. 23 of the UCCJA, they also
ignore the specific language of the Comment to Sec. 23
which, inter alia, holds that while not all of the
sections of the UCCJA apply, the following sections do:
6, 7, 8, 14(a).
4. This fourth “requirement” is somewhat in error. Art. 3
defines what is or is not a “Wrongful” act: If a child
is removed or retained from his or her “Habitual
Residence” in derogation of the rights of custody of
the left behind party, then this is the “wrongful” act
that triggers The Convention.
5. While it is true that in this case there was no
“wrongful” act on the part of the mother, the actual
finding by the New Jersey Court should have been that
even if there had been a “wrongful” act on the part of
the mother, it was acquiesed to by the father in the
agreement. See Art. 13(a).