E. v. T.

• Decision Date: 29 June 1973
• Parties: E and wife, Plaintiffs, v. T and wife, Defendants.
• Court: New Jersey Superior Court

Page 535

124 N.J.Super. 535

308 A.2d 41

E and wife, Plaintiffs, v. T and wife, Defendants.

Superior Court of New Jersey Chancery Division.

June 29, 1973.

Joel D. Siegal, Newark, for plaintiffs (Hellring, Lindeman & Landau, Newark, attorneys).

Adrian M. Unger, Newark, for defendants (Milton M. and Adrian M. Unger, Newark, attorneys).

FUNDLER, J.J.D.R.C., Temporarily Assigned.

The present action was instituted on January 3, 1973 when plaintiffs filed with this court their verified complaint and supporting affidavits seeking custody of the infant children S and D and other ancillary relief. They thereupon obtained an order to show cause directing defendants to return said children immediately to plaintiffs' care and custody, and restraining them from taking the children from plaintiffs' custody without the order of this court. The order to show cause was returnable on January 26, 1973 and it, together with the verified complaint and supporting affidavits, was personally served upon defendants on January 4, 1973 in Las Vegas, Nevada.

Defendants have now moved before this court for an order dismissing the complaint and discharging the order to show cause, asserting that the court lacks jurisdiction over the subject matter, the person of defendants and the infant children; that there was insufficiency of process, and on the basis of comity and Forum non conveniens. The original return date of the order to show cause was adjourned by consent and the parties agreed to consolidate the hearing on the order to show cause and defendants' motions. All parties have filed detailed affidavits, supporting documents and extensive legal briefs. Initial oral argument was heard on April 30, 1973 and the matter was thereafter continued for several weeks to permit the filing of additional papers and briefs with the court. Further oral argument was waived and the matter is now before the court for decision on the documentation filed.

The essential facts necessary for a determination of the issues presented are neither complicated nor materially disputed. Plaintiff-father, age 49, has been married to the co-plaintiff since 1955. Defendant-mother, age 25, has been married to the co-defendant since February 1972. Plaintiff-father and defendant-mother are the natural parents of the two illegitimate infant children S and D whose custody is in dispute. The first child S was born on April 20, 1966 and the second child D was born on June 24, 1967. Both children were born in the same hospital in Philadelphia, Pennsylvania, under plaintiff-father's last name which the defendant-mother had assumed upon admission to the hospital for each childbirth.

It is undisputed that since October 1967 both children have been under the continuous care and custody of plaintiff-father and his wife who have resided here in New Jersey. Between October 1967 and September 1970 defendant-mother saw the children on but three occasions and thereafter at infrequent intervals until December 1972. On December 26, 1972 defendants visited the home of plaintiffs in New Jersey and under a subterfuge took physical control of the children and surreptitiously removed them from the State of New Jersey to their home in Las Vegas, Nevada.

After service of the papers in this proceeding upon defendants in Nevada, plaintiffs filed a petition for a writ of Habeas corpus in the Nevada courts on January 8, 1973 seeking to enforce the Interim relief granted by this court. On January 23, 1973 the Nevada court granted plaintiffs' petition, and defendants in this action were ordered to immediately deliver the children S and D to the natural father, plaintiff in this action. In that decision, Judge Michael J. Wendell, sitting in the Eighth Judicial District Court of the State of Nevada, said,

This court believes that the children, having lived in the State of New Jersey for all this period of time, that the proper forum for hearing this matter is the State of New Jersey. And this court defers to that state. The Petition for the Writ is granted.

Defendants filed an immediate appeal from this decision, and upon the posting of a bond, Judge Wendell's order was stayed the same day it was made. Plaintiffs' subsequent efforts in the Nevada courts to dissolve the order staying the writ granted by Judge Wendell have been futile and the case continues on its appellate course in the Nevada courts.

The merits of the custodial issue and the ancillary relief framed in the complaint are not now before this court. It is basic, however, that in all matters relating to the custody of minor children the paramount consideration of this and any other court is and should be the safety, happiness, physical, mental and moral welfare of the child. Fantony v. Fantony, 21 N.J. 525, 122 A.2d 593 (1956); Schwartz v. Schwartz, 68 N.J.Super. 223, 172 A.2d 97 (App.Div.1961); Sheehan v. Sheehan, 38 N.J.Super. 120, 118 A.2d 89 (App.Div.1955); Scanlon v. Scanlon, 29 N.J.Super. 317, 102 A.2d 656 (App.Div.1954); Grove v. Grove, 21 N.J.Super. 447, 91 A.2d 363 (App.Div.1952); Lippincott v. Lippincott 97 N.J.Eq. 517, 128 A. 254 (E. & A.1925). Each case must be decided on its own facts and circumstances, and neither parent has a superior right to custody. Fantony v. Fantony, Supra. Judicial jurisdiction over the subject matter relating to such custodial issues is not necessarily exclusive, and more than one state, under a given set of facts, could have subject matter jurisdiction. See Vannucchi v. Vannucchi, 113 N.J.Super. 40, 272 A.2d 560 (App.Div.1971); Sampsell v. Superior Court, 32 Cal.2d 763, 197 P.2d 739 (Sup.Ct.1948); May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953). See also, Note, 'Long-Arm Jurisdiction in Alimony and Custody Cases,' 73 Colum.L.Rev. 289, 307 (1973). A court's election to exercise its jurisdiction in a custody dispute where the facts evidence a concurrent jurisdiction situation should be grounded in sound judicial discretion based upon the equities presented and the primary or paramount concern in protecting the child's best interests. Vannucchi v. Vannucchi, Supra.

The Parens patriae jurisdiction of this court, derived from the common law, case law and statutes to regulate and control the custody of infants, has as its basis the protection of the state that is due to all helpless or incompetent persons. Henderson v. Henderson, 10 N.J. 390, 91 A.2d 747 (1952); Fantony v. Fantony, Supra. This jurisdiction is as broad as it is long, and springs from the necessity of the case. See In re Olcott, 141 N.J.Eq. 8, 55 A.2d 820 (Ch.1947). It is illogical to believe, and unacceptable to this court that its Parens patriae jurisdiction over the infants in question can be lost or thwarted by their physical removal from the State of New Jersey against our public policy.

The provisions of N.J.S.A. 9:2--2 are definitive legislative expressions of the public policy of the State of New Jersey. This statute in its pertinent part provides,

When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents . . . separated or living separate, and such children . . . have resided five years within its (New Jersey) limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order.

It has already been held that the Parens patriae jurisdiction of this court is not limited by virtue of this statute but that it supplements the jurisdiction referred to previously. Fantony v. Fantony, Supra; Casteel v. Casteel, 45 N.J.Super. 338, 132 A.2d 529 (App.Div.1957). The provisions of N.J.S.A. 9:2--3 are also supplemental to the Parens patriae jurisdiction of this court under the cited cases and it too confers jurisdiction in this court with respect to the custody of minor children as those in this case.

Under ...