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N.J. Superior Court, Appellate Division A-213-04T2; Appellate Division; opinion by Fall, J.A.D.; decided and approved for publication November 30, 2004. Before Judges Wefing, Fall and C.S. Fisher. On appeal from the Chancery Division, Family Part, Morris County, FM-14-134-05. [Sat below: Judge David B. Rand.] DDS No. 20-2-8521 In this international custody dispute involving application of the provisions of the Uniform Child Custody Jurisdiction Act (UCCJA), N.J.S.A. 2A:34-28 to -52, defendant Alejandra Pellerano appeals from an order entered in the Family Part on Aug. 26, 2004, assuming jurisdiction, pursuant to N.J.S.A. 2A:34-31a(2), over custody and relocation issues pertaining to her children with plaintiff Fredrick Poluhovich. The issue is whether New Jersey courts have subject-matter jurisdiction to consider plaintiff’s application to modify the terms of the parties’ custodial agreement that had been incorporated into a judgment of divorce entered by the courts of the Dominican Republic on March 24, 2003. After the Appellate Division denied defendant’s application for emergent relief, defendant filed a motion with the Supreme Court, seeking leave to appeal from the Aug. 26, 2004, order, and emergent relief in the form of an order finding that the Family Part lacked subject-matter custody jurisdiction. On Sept. 8, 2004, the Supreme Court issued an order, granting defendant’s motion for leave to appeal and summarily remanding the matter for the Appellate Division to consider, on an accelerated basis, the issue of whether the Family Part has jurisdiction to proceed in accordance with its Aug. 26, 2004, order. Held: The Family Part properly exercised “emergency jurisdiction” pursuant to the provisions of N.J.S.A. 2A:34-31a(3) to consider plaintiff’s allegations that it was necessary to protect the children because they had been subjected to or threatened with mistreatment or abuse or had otherwise been neglected by defendant. However, on determining that plaintiff’s allegations of an “emergency” lacked merit, the Family Part was without subject-matter jurisdiction to consider plaintiff’s further contention that the best interests of the children warranted modification of the existing custodial arrangement by the transfer of residential custody to him. The parties met in the Dominican Republic in 1991, and married in December 1992. After their marriage the parties moved to New Jersey, settling in Holmdel. Two children were born of their marriage in 1994 and 1995. Plaintiff, defendant and both children are citizens of the United States by virtue of their birth here. In November 1995, the parties and children moved to the Dominican Republic, where they resided in Santo Domingo. In the fall of 2000, defendant informed plaintiff she wanted a divorce. The parties separated in 2001 and plaintiff relocated to New Jersey, where he has since maintained a residence. Defendant and the two children remained in the Dominican Republic. Accordingly, the children and defendant have been residents of the Dominican Republic since November 1995. In the fall of 2003, defendant filed a divorce action against plaintiff in the Dominican Republic. On March 23, 2003, the parties entered into a written property settlement agreement in the Dominican Republic resolving all issues between them, including the issues of custody and parenting time. That agreement was incorporated into a judgment of divorce that was entered in the Dominican Republic. Both parties were represented by counsel, and the court issued a judgment of divorce. Pursuant to their incorporated agreement, custody of the children was vested with defendant in the Dominican Republic and plaintiff was accorded a liberal parenting time schedule. The divorce judgment also provided, inter alia, that in the event of the death of defendant, custody of the children would automatically pass to plaintiff, and “that in any other case, such as: illness, physical disability, serious wounds, emotional collapse, among others, the [plaintiff] shall apply to the courts [of the Dominican Republic] in order to request the transfer of the custody of the children in his favor, all in consideration of the condition of father[.]” In accordance with their incorporated agreement, the children visited with plaintiff in New Jersey during the 2003 Thanksgiving holiday, for 10 days in January 2004, and for 10 days in April 2004. The current jurisdictional dispute arose after the children came to New Jersey to visit with plaintiff in early June 2004. The children were scheduled to return to the Dominican Republic on Aug. 2, 2004. On July 27, 2004, plaintiff filed a verified complaint against defendant in the Family Part, seeking an order granting him sole legal and sole physical custody of the children. In his complaint, plaintiff alleged that defendant was planning to move to Gjovic, Norway, with the children to take up residence with her boyfriend, and that defendant is verbally and physically abusive of the children, and neglectful of their children’s care and well-being. On the filing of the verified complaint, plaintiff sought emergent relief from the Family Part in the form of an order immediately vesting custody of the children with him. The judge issued an order to show cause with emergent relief on July 28, 2004, that granted plaintiff temporary physical and legal custody of the children, and restrained both parties from removing the children from New Jersey. On Aug. 11, 2004, defendant presented an emergent application to the Appellate Division, seeking leave to appeal, for a stay of the order requiring that the children be interviewed by Dr. Sharon Montgomery, a psychologist, and for a summary determination that the Family Part lacked jurisdiction to entertain plaintiff’s applications. Plaintiff filed papers opposing defendant’s application, contending that the Family Part had jurisdiction over the custody of the children under the provisions of N.J.S.A. 2A:34-31a(2), -31a(3), and -31a(4). Judges Richard Newman and Robert Fall denied the application. On Aug. 13, the judge placed physical custody of the children with defendant and directed both parties to pursue the custody issue in the Dominican Republic, noting that “[t]he situation in New Jersey can only be temporary likely.” On or about Aug. 17, 2004, defendant filed another application with the Family Part seeking dismissal of plaintiff’s complaint on the basis that on Aug. 13, 2004, she had filed a complaint in the Court of Children and Adolescents of the National District, Dominican Republic, seeking enforcement of her custody rights in accordance with the March 23, 2003, judgment incorporating their settlement, and to impose sanctions against plaintiff. On or about Aug. 19, 2004, plaintiff filed an application in the Family Part seeking an order retaining jurisdiction and restoration of physical custody of the children to him pending a full custody hearing. Plaintiff submitted a copy of a U.S. State Department travel advisory dated Aug. 18, 2004, that stated the Dominican Republic is not a party to the Hague Convention on the Civil Aspects of International Child Abduction, and that there are no treaties in force between the Dominican Republic and the United States dealing with international parental abduction. The judge stated he was retaining jurisdiction of the custody issue pursuant to N.J.S.A. 2A:34-31a(2), and would speak with the Dominican Republic judge. He ordered overnight parenting time for plaintiff with the children, and scheduled the matters for further argument on Aug. 25, 2004. The judge also denied defendant’s application for a stay. Written orders memorializing the court’s rulings were issued on Aug. 20, 2004. On that date, defendant applied to the Appellate Division on an emergent basis seeking summary dismissal of the Family Part action. Plaintiff submitted opposition to defendant’s request. Judge Edwin Alley rejected defendant’s application. The hearing in the Family Part resumed on Aug. 25. The order memorializing the decision was entered on Aug. 26, assuming jurisdiction over the custody and relocation of the children pursuant to N.J.S.A. 2A:34-31a(2); scheduling a plenary hearing on plaintiff’s request for modification of custody and defendant’s intended relocation to Norway within 45 days; establishing a joint legal and joint physical custodial and parenting-time relationship between the parties pending the results of the hearing; directing that the children be enrolled in the East Hanover public schools pending further order; requiring both parties to cooperate with all experts retained on the custody and removal issues; prohibiting the parties from disparaging each other in the presence of the children; prohibiting removal of the children from New Jersey; and requiring plaintiff to retain possession of the children’s passports. On Aug. 26, 2004, defendant presented an application for emergent relief to Judge Alley, which was rejected. On or about Sept. 1, 2004, defendant filed a motion in the Supreme Court requesting emergent relief from the order of the Family Part entered on Aug. 26, 2004, granting leave to appeal therefrom, and seeking an order finding that the exercise of continuing jurisdiction by the Family Part is improper and requiring dismissal of plaintiff’s custody action. On Sept. 8, 2004, the Supreme Court issued an order granting defendant’s motion for leave to appeal and stated that “the matter is summarily remanded to the Appellate Division to consider on an accelerated basis the question of whether jurisdiction is proper in New Jersey.” The UCCJA presently governs the determination of subject-matter jurisdiction of the Family Part in interstate, as well as international, custody disputes. However, the UCCJA has been repealed, effective as of Dec. 12, 2004, and will be replaced with the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), codified as N.J.S.A. 2A:34-53 to -95. N.J.S.A. 2A:34-31a is the jurisdictional provision of New Jersey’s version of the UCCJA. N.J.S.A. 2A:34-31a confers jurisdiction on the Family Part to hear custody matters in the following four circumstances, measured as of the date the complaint or application for modification of custody is made: (1) where New Jersey is the “home state” of the children; (2) where it is in the “best interests” of the children that New Jersey assume jurisdiction because the children and at least one parent have a “significant connection” with New Jersey and there is available in New Jersey “substantial evidence” bearing on the children’s present or future care, protection, training and personal relationships; (3) where the children are present in New Jersey and either the children have been abandoned or there is an “emergency” requiring action by the court to protect the children because they have been subjected to or threatened with mistreatment or abuse or are otherwise neglected; or (4) “default jurisdiction,” where no other state would have jurisdiction under the criteria set forth in (1), (2) or (3) above, or another state “has declined” to exercise jurisdiction because New Jersey is the more appropriate forum, and it is in the “best interests” of the children that New Jersey assume jurisdiction. New Jersey lacks authority to assume either home state jurisdiction, N.J.S.A. 2A:34-31a(1); emergency jurisdiction, N.J.S.A. 2A:34-31a(3); or default jurisdiction, N.J.S.A. 2A:34-31a(4), over custody issues pertaining to the parties’ children. Therefore, the only bona fide issue presented in this appeal is whether � under the unique circumstances of this case � the Family Part had the authority to assume custody jurisdiction under the so-called significant connection/substantial evidence/best interests criteria set forth in N.J.S.A. 2A:34-31a(2). Before analyzing whether the jurisdictional prerequisites of that provision have been satisfied, it is informative to note some discreet differences between the UCCJA and the UCCJEA, which becomes effective in New Jersey on Dec. 12, 2004. Those differences provide an extrinsic aid in consideration of the issue of whether the Family Part properly assumed custody jurisdiction pursuant to N.J.S.A. 2A:34-31a(2). Although a superseding statutory enactment is not yet effective, the legislative policy and intent of the new statute may inform interpretation and application of the existing version of the statute. The four jurisdictional prerequisites set forth in the UCCJA, here in N.J.S.A. 2A:34-31a, are applicable to a custodial applications seeking both an “initial” order or an order “modifying” an existing custody order. However, with respect to custody-modification applications, the UCCJA specifically provides:
a. If a court of another state has made a custody decree, a court of this State shall not modify that decree unless (1) it appears to the court of this State that the court which rendered the decree does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with this act or has declined to assume jurisdiction to modify the decree, and (2) the court of this State has jurisdiction. N.J.S.A. 2A:34-42a.

Thus, 2A:34-31a and 2A:34-42a, when read together, make clear that when faced with an application to modify the custody order of another state, here a foreign country, the Family Part must first determine whether the state/country that issued the order to which modification is sought has “jurisdiction under jurisdictional prerequisites substantially in accordance with this act or has declined to assume jurisdiction to modify the decree[.]” Here, although the final judgment issued by the Dominican Republic court specifically permitted him to do so, plaintiff has not filed an application in the Dominican Republic to modify the custodial award embodied in the divorce judgment issued by that country or to prevent defendant from relocating with the children to Norway. Rather, at the prompting of the Family Part, defendant filed an application in the courts of the Dominican Republic to enforce her custodial rights. The term “home state” under the UCCJA is defined in 2A:34-30e as

the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as a parent, for at least 6 consecutive months, and in the case of a child less than 6 months old the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the 6-month or other period[.]

The definition of “home state” under the UCCJEA, 2A:34-54, is substantially the same. Here, that the courts of the Dominican Republic continue to have jurisdiction over the modification of its custodial order “under jurisdictional prerequisites substantially in accordance with” the UCCJA, N.J.S.A. 2A:34-42a, seems clear. Under any analysis of the facts of this case, the Dominican Republic is the “home state” of these children and the courts of that country certainly have subject-matter jurisdiction to entertain applications directed to issues of custody of the children. Moreover, the overwhelming evidence in the record establishes that the children and defendant have a significant connection with the Dominican Republic, where they have lived continuously since 1995, and that there is available substantial evidence concerning the children’s present or future care, protection, training and personal relationships in the Dominican Republic. Therefore, plaintiff has not satisfied the first prong contained in 2A:34-42a(1) for the exercise of subject-matter jurisdiction to modify the custodial arrangement decreed by the courts of the Dominican Republic some 16 months prior to his filing for custody in the Family Part. Assuming that plaintiff had established the first prong, he would still be required to establish the second prong for modification jurisdiction, namely, that “the court of this State has jurisdiction.” 2A:34-42a(2). However, when an international custody dispute arises, the first issue to be analyzed is whether the jurisdictional provisions of the UCCJA should be applied at all. That issue revolves around the question of whether a parent is accorded due process in the foreign country, including reasonable notice and an opportunity to be heard. N.J.S.A. 2A:34-51, titled “International application,” provides as follows:

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.

This section extends all the general policies of the UCCJA “to the international area.” See Ivaldi v. Ivaldi, 147 N.J. 190, 200 (1996). It also “requires New Jersey courts to recognize foreign custody decrees issued by similar ‘legal institutions’ in the same manner as the courts would recognize decrees of other states, provided those institutions have accorded affected persons notice and the opportunity to be heard.” Ibid. Here, the record does not reflect that plaintiff’s fundamental due process rights had been violated when the Dominican Republic issued the custodial order embodied by the March 24, 2003, judgment of divorce. In fact, the record on appeal discloses quite the opposite. Plaintiff was given reasonable notice of the Dominican Republic divorce action, was afforded a full opportunity to be heard, was represented by counsel of his choosing in that proceeding, negotiated and entered into a property settlement agreement that resolved, inter alia, the custodial and parenting-time issues, and he consented to the continuation of custody jurisdiction in the Dominican Republic. The Dominican Republic divorce decree provides plaintiff with a liberal and reasonable parenting-time schedule that has been fully adhered to by defendant. Moreover, plaintiff has failed to establish that the courts of the Dominican Republic would violate principles of human rights or not resolve any custody modification application based on an evaluation of the best interests of the children. That the circumstances in which plaintiff now finds himself, namely, subject to a custody-enforcement proceeding in the Dominican Republic, may have criminal consequences is unfortunate. However, those circumstances were created by his filing of a custody complaint in the Family Part, the linchpin of which was the assertion of emergency jurisdiction pursuant to N.J.S.A. 2A:34-31a(3) founded on baseless allegations that the children had “been subjected to or threatened with mistreatment or abuse or [were] otherwise neglected.” It should also be noted that the enforcement mechanisms invoked in the Dominican Republic are analogous and substantially similar to those readily available in New Jersey pursuant to R. 1:10-3 or through application of N.J.S.A. 2C:13-4. The Family Part judge properly assumed temporary jurisdiction under those allegations to assure the safety and protection of the children. However, as the judge proceeded, it was clear from the evidence, consisting of Dr. Montgomery’s expert investigation and analysis as well as the considerable documentation supplied by defendant, that the claim of an “emergency” was without merit. When the issue of emergency jurisdiction is removed from the jurisdictional calculus, the Family Part was essentially presented with the issue of whether defendant’s planned move to Norway with the children constituted a sufficient basis for assumption of subject-matter custody modification jurisdiction by New Jersey. The detailed list provided to the Family Part by plaintiff of “significant connections” and “substantial-evidence,” when viewed as of July 27, 2004 � the date of the filing of the custody complaint in the Family Part � was insufficient to invoke subject-matter jurisdiction to modify the Dominican Republic custodial decree, unless that decree should not be enforced at all under the criteria set forth in N.J.S.A. 2A:34-51, or that contained in the recently enacted UCCJEA provision, 2A:34-57. Moreover, the modification-jurisdiction criteria outlined in 2A:34-42a clearly was not met. Namely, it cannot be concluded that the Dominican Republic “court which rendered the decree [sought to be modified] does not now have jurisdiction under jurisdictional prerequisites substantially in accordance with” the UCCJA. It is also instructive to analyze this case under the provisions of the UCCJEA, as enacted in New Jersey. The UCCJEA separates the child custody jurisdictional prerequisites into those governing “an initial child custody determination,” 2A:34-65; those governing “jurisdiction to modify” an existing custody determination of another state, 2A:34-67; and those governing “temporary emergency” circumstances, 2A:34-68. It also adopts the concept of “exclusive, continuing jurisdiction,” 2A:34-66. Under the UCCJEA, the Family Part has no jurisdiction to modify the custody order of another state unless New Jersey is the home state of the child, N.J.S.A. 2A:34-65a(1), or a court of another state does not have home-state jurisdiction, or a court of the child’s home state has declined to exercise jurisdiction on the ground that New Jersey is the more appropriate forum under 2A:34-71 or 2A:34-72, and the child and the child’s parents or the child and at least one parent have a “significant connection” with New Jersey other than mere physical presence, and “substantial evidence” is available in New Jersey concerning the child’s care, protection, training and personal relationships. Stated differently, under the UCCJEA, a court determining jurisdiction does not reach the “significant connection” and “substantial evidence” tests unless the court of the other state does not have home-state jurisdiction or � having home-state jurisdiction � has declined to exercise custody jurisdiction because it has determined that New Jersey is the more appropriate forum. Here, those prerequisites to the assertion of custody-modification jurisdiction have not been established. A jurisdictional analysis under either the applicable provisions of the UCCJA, or those of the recently enacted UCCJEA, yields the same result. The provisions of the UCCJEA have essentially simplified the analysis of a child custody jurisdictional issue by codifying judicial interpretations of the UCCJA’s provisions, and by separately outlining the prerequisites for the exercise of “initial,” “modification,” and “temporary emergency” jurisdiction. The embodiment of “home state” priority, the clarification of “emergency jurisdiction,” the concept of “exclusive continuing jurisdiction,” and the clarification that the “best interests” criteria of the UCCJA was not intended to invite an analysis of the merits of a custodial dispute when determining jurisdiction, are persuasive that the Family Part erred in assuming custody jurisdiction pursuant to N.J.S.A. 2A:34-31a(2). The fact that the Dominican Republic is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, although always a factor to consider in the context of analyzing the criteria for international application set forth in N.J.S.A. 2A:34-51 of the UCCJA or 2A:34-57 of the UCCJEA, is of no concern in this jurisdictional dispute since this is not a case based on an abduction. See Bless v. Bless, 318 N.J. Super. 90, 102 (App. Div. 1998). Reasonable notice and opportunity to be heard are clearly components of the law of the Dominican Republic governing custodial disputes, and there is no basis to conclude that the courts of the Dominican Republic violate fundamental principles of human rights or do not base custody decisions on the evaluation of the best interests of the children. Although the procedures and criteria for evaluating the best interests of the children may not be as sophisticated or detailed as those contained in the statutory and case law of New Jersey, a finding that those procedures and criteria are the substantial equivalent of those in New Jersey is not the test to be applied when determining whether the jurisdictional criteria set forth in the UCCJA or UCCJEA should be given application. That is particularly so here, where defendant voluntarily subjected himself to the jurisdiction of the courts of the Dominican Republic in the divorce action. The “emergency jurisdiction” and “removal” issues advanced by plaintiff clouded a proper jurisdictional analysis. The record clearly demonstrates that there was never an adequate, good-faith basis for requesting that the Family Part assume emergency jurisdiction under the provisions of 2A:34-31a(3). There is also no reason to believe that the courts of the Dominican Republic will not, on proper application by plaintiff, provide reasonable notice, an opportunity to be heard and consider any application made by him to change custody, prevent relocation of the children to Norway, or otherwise protect his right to maintain a meaningful parental relationship with the children. The lack of a structured approach to removal applications in the Dominican Republic similar in nature to that articulated in N.J.S.A. 9:2-2, as interpreted and applied by Baures v. Lewis, 167 N.J. 91, 115-17 (2001), is not the standard or a basis to assess subject-matter jurisdiction in an international or domestic custodial dispute. If it were, the principles of the UCCJA and UCCJEA, discussed herein, would be meaningless. Further, this jurisdictional analysis comports with the central policy of the UCCJA, or for that matter the UCCJEA, that custody litigation occur in the place where the children and their family have the closest connection. That jurisdiction is the Dominican Republic. The Aug. 26, 2004, order assuming jurisdiction over the custody and relocation of these children is reversed, and the matter is remanded for entry of an order dismissing plaintiff’s complaint. This decision is stayed for 20 days to permit plaintiff an opportunity to file and serve a timely petition for certification to the Supreme Court pursuant to R. 2:12-3(a). � Digested by Steven P. Bann [The slip opinion is 88 pages long.] For appellant � Mark Wechsler (Einhorn, Harris, Ascher, Barbarito, Frost & Ironson). For respondent � Jan L. Bernstein (Riker, Danzig, Scherer, Hyland & Perretti; Sara J. Cronin on the brief).

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