Baby M., Matter of

• Court: Superior Court of New Jersey
• Citation: 217 N.J.Super. 313,525 A.2d 1128
• Decision Date: 31 March 1987
• Parties: , 55 USLW 2544 In the Matter of BABY "M", a pseudonym for an actual person.

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217 N.J.Super. 313 525 A.2d 1128, 55 USLW 2544 In the Matter of BABY "M", a pseudonym for an actual person. Superior Court of New Jersey, Chancery Division,
Family Part, Bergen County. Decided March 31, 1987.

[525 A.2d 1132]

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Gary N. Skoloff, Francis W. Donahue and Edward J. O'Donnell, for plaintiffs Stern (Skoloff & Wolfe, Newark, attorneys).

Harold J. Cassidy, Robert W. Ruggieri and Randolph H. Wolf, for defendants Whitehead (Cassidy, Despo, Foss & San Filippo, Red Bank, attorneys).

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Lorraine A. Abraham, Hackensack, guardian ad litem.

Joel D. Siegal, for plaintiffs & intervenor Messer (Hellring, Lindeman, Goldstein, Siegal & Stern, Newark, attorneys).

SORKOW, P.J.F.P.

The Issue.

The primary issue to be determined by this litigation is what are the best interests of a child until now called "Baby M." All other concerns raised by counsel constitute commentary.

That commentary includes the need to determine if a unique arrangement between a man and woman, unmarried to each other, creates a contract. If so, is the contract enforceable; and if so, by what criteria, means and manner. If not, what are the rights and duties of the parties with regard to custody, visitation and support.

Jurisdiction.

There can be no solution satisfactory to all in this kind of case. Justice, our desired objective, to the child and the mother, to the child and the father, cannot be obtained for both parents. The court will seek to achieve justice for the child. This court's fact finding and application of relevant law must mitigate against the heartfelt desires of one or the other of the natural parents.

Where courts are forced to choose between a parent's rights and a child's welfare, the choice is and must be the child's welfare and best interest by virtue of the court's responsibility as parens patriae. In re J.R. Guardianship, 174 N.J.Super. 211, 224, 416 A.2d 62 (App.Div.1980).

Probably the most important authority of the court is the exercise of its parens patriae jurisdiction. Jurisdiction is a word of [525 A.2d 1133] broad and comprehensive impact. It means the authority by which courts and judicial officers take cognizance of and

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decide cases. It means the authority to act, to find, define and apply the law.

Parens patriae is that power of the sovereign (in this case the State of New Jersey by its judicial branch) to watch over the interests of those who are incapable of protecting themselves. Black's Law Dictionary (4 ed. 1975). The case of Lippincott v. Lippincott, 97 N.J.Eq. 517, 519, 128 A. 254 (E. & A.1925) is further instructive. Justice Minturn writes that parens patriae was known in varying terms from the time of early Greek civilization. In Greece, a child was a charge of the state. After infancy the state took the child into its control and educated him to the will of the state. Early English common law conceded to the parent absolute control of the child subject to the power of the king in the interest of the child as well as in the interest of the state. 1 Blackstone's Commentaries 451. In our nation, early decisions defining the jurisdiction of the court of equity hold that a court's right to intervene for the protection of an infant is an inherent power of the court. People v. Mercein, 8 Paige Ch. 55 (Ch.N.Y.1883). It appears well settled that courts having historic chancery or equity jurisdiction exercise and control the sovereign power called parens patriae.

This historic jurisdiction was developing in 13th- and 14th-century England. In early English common law, all judicial authority reposed in the crown. Ultimately, as the population expanded and society's problems grew complex, the crown delegated these problems to courts of law for resolution. The king retained certain prerogatives to insure that ultimate equity was done. When an injustice was found at law, or perhaps the law had no remedy for a particular circumstance, a plea to the crown or to its lord chancellor led to the creation of a separate system of law--one where the chancellor (hence chancery) as keeper of the king's conscience sought to do equity and cure the injustice and inequities often caused by the inflexible forms of the common law. As this alternate system grew, its hallmark became one of flexibility and invention to meet new

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situations and circumstances. Conflict arose between equity and law creating, rather than ameliorating, injustice. This caused Parliament, by 1875, to enact laws abolishing the separate court system. This merger of systems did not occur in New Jersey until some 75 years later when, in the New Jersey Constitution of 1947, a unified court system was created. While Article III of the State Constitution created a unified Superior Court, a Chancery Division within the court continued to exercise the historic powers of the original courts of equity. Kimmelman, I., "Chancery: Introduction and Perspective," New Jersey State Bar Journal (Summer 1977).

Thus, it is pursuant to R. 5:2-1, which defines actions cognizable in the Superior Court, Chancery Division, Family Part, that this court, as the present day successor to a part of that historic legacy of equity jurisdiction, applies said jurisdiction to the issues herein presented; to wit, the best interest of a child and contractual rights, if any, of the litigating parties.

Venue.

Venue is a concept of place--in this context, where should a lawsuit be brought. Jurisdiction defines the court's authority; venue defines in which geographic area the suit should be instituted. Mr. and Mrs. William Stern ¹ live in Bergen County, New Jersey. Mr. and Mrs. Richard Whitehead live in Ocean County, New Jersey. The child was taken from Bergen County to Ocean County and returned to Bergen County ultimately from the State of Florida. At the time of the institution of this suit, Mr. and Mrs. Stern believed they had the right to have the child returned to them in Bergen County. They believed "Baby M" was a resident of Bergen County;[525 A.2d 1134] hence, Mr. and Mrs. Stern began their action here. R. 5:2-1 provides that an action involving status of children should be

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brought in the county of domicile. There never was a challenge to this placement of venue. This court concludes that venue is properly in Bergen County.

Procedural History.

This litigation began on May 5, 1986, when Mr. and Mrs. William Stern filed an ex-parte application for an order to show cause why this court should not issue an order for a summary judgment to enforce a surrogate-parenting contract. The order to show cause was returnable on May 27, 1986.

At the same time a verified complaint was filed seeking to enforce a surrogate-parenting agreement, compel the surrender to plaintiffs of the infant child born to Mrs. Mary Beth Whitehead, restrain any interference with plaintiffs' custody of the infant, terminate Mrs. Whitehead's parental rights and allow adoption of the child by Mrs. Stern.

Much has been made by Mr. and Mrs. Whitehead that the court ordered a return of the child without notice (ex-parte ) to them. All of defendants' arguments in this regard fail because it is clear that R. 4:52-1, which provides for orders to show cause with temporary restraints, specifically allows for a temporary restraint to issue if the facts alleged in a verified complaint or affidavit allow the court to conclude that immediate and irreparable harm or damage will result to plaintiff before notice can be served and a hearing had thereon. The court's fact finding will show clear support for such a conclusion. Indeed, the anticipation by the Sterns of the Whiteheads' flight from New Jersey after service upon them of the restraining order is proof that the Sterns' pleadings contained credible and convincing evidence of immediate and irreparable harm, if not to plaintiffs-Stern than certainly to the infant.

Notwithstanding defendants-Whiteheads' protestations about the lack of knowledge of the order's contents and about the lack of service of the order upon them, valid and credible proof of service of process on defendants-Whitehead appears from

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the certification of a Brick Township police officer dated May 28, 1986, attesting to his having personally left the complaint and order to show cause with defendants-Whitehead on May 5, 1986. Pursuant to R. 4:4-4, defendants were lawfully and properly served and this court then obtained in personam jurisdiction over them.

On May 27, 1986, the return day of the order to show cause, no one appeared for defendants-Whitehead and this court continued the temporary restraint order until July 17, 1986. After proof of service was filed and no appearance was entered by the defendants-Whitehead on July 17, 1986, some 2 1/2 months after initial service, this court made an order requiring surrender of the infant to plaintiff William Stern, the natural father, who was also granted temporary custody. The order further provided for restraints against defendants-Whiteheads' interfering with plaintiff William Stern's custody of the infant, authorized Mr. Stern to get the child's birth records and pursuant to the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-28 et seq., authorized the filing of the New Jersey custody order in Florida. Parenthetically, it is noted that on the day following May 5, 1986, when this court gave temporary custody to plaintiff William Stern, the Whiteheads removed the child from New Jersey and plaintiff William Stern instituted proceedings pursuant to N.J.S.A. 2C:13-4a, unlawful interference with custody. That law makes it a criminal offense to interfere with or remove a child from its custodial parent. Disposition of this complaint to this court's knowledge is still pending.

On August 6, 1986, the first of the Whiteheads' three lawyers entered an appearance on their behalf. On August 16, 1986, the second of defendants' three attorneys entered his appearance. After notice to all...