Bata v. Konan

• Decision Date: 19 September 2019
• Docket Number: DOCKET NO. FD-07-00767-19
• Citation: 217 A.3d 774,460 N.J.Super. 562
• Parties: Clementine BATA, Plaintiff, v. George KONAN, Defendant.
• Court: New Jersey Superior Court

460 N.J.Super. 562

217 A.3d 774

Clementine BATA, Plaintiff,

v.George KONAN, Defendant.

DOCKET NO. FD-07-00767-19

Superior Court of New Jersey, Chancery Division, Essex County. Family Part.

Decided: March 8, 2019

September 19, 2019

Clementine Bata, plaintiff pro se.

George Konan, defendant pro se.

PASSAMANO, J.S.C.

This matter comes before the court on plaintiff's application and defendant's counterclaim. In her application, plaintiff seeks, among other things, an initial custody determination concerning the parties' minor child. In his counterclaim, defendant opposes plaintiff's application and contests jurisdiction. Plaintiff, the child's natural mother, resides in New Jersey. Defendant, the child's natural father, resides in New York.

Based on the written submissions and limited testimony taken on the initial hearing date, the court found that a plenary hearing was necessary. At the plenary hearing, which was held on December 5, 2018, both plaintiff and defendant testified. No other witnesses were called.

The court has considered the testimony of the parties,¹ the documents admitted into evidence and the arguments presented. Following are the court's findings of fact and conclusions of law.

I.

The parties are not married and live separate and apart from one another. They have one child, a daughter. The child, who was born on October 9, 2015, was three years old at the time of the hearing. Plaintiff, the child's mother, resides in New Jersey. Defendant, the child's father, resides in New York. On August 22, 2018, plaintiff filed an application seeking sole legal custody of the child, physical custody and an order for support. Defendant opposes plaintiff's application and contests jurisdiction.

For the reasons set forth herein, the court finds that New Jersey does not have jurisdiction to make a custody determination.

A.

Plaintiff and defendant met and began their relationship in the summer of 2014. Notwithstanding that the relationship had its ups and downs, plaintiff in March 2015 found herself to be pregnant by defendant. The pregnancy caused additional stress between the parties and plaintiff ended the relationship.

The parties remained apart until about the fifth month of plaintiff's pregnancy. Around that time, plaintiff's parents had visited from Paris. They advised plaintiff to work towards re-establishing her relationship with defendant. Plaintiff's parents emphasized their belief that doing so would facilitate the child knowing his or her father. On plaintiff's initiative, the parties re-established their relationship with defendant being supportive of plaintiff and their unborn child. At that time, plaintiff resided in New Jersey and worked as a flight attendant, based out of New York. Defendant was residing in New York and did not work outside of the home.

The parties decided that plaintiff would deliver the child at a hospital in Jersey City, New Jersey and she did so on October 9, 2015. After giving birth, plaintiff took three months off from work to care for the child. During that time, the child stayed with plaintiff in New Jersey. Defendant commuted from New York to visit and help with the child.

Plaintiff's credible testimony showed that her employment required that she regularly work overnight flights outside of the United States – sometimes for multiple days. Due to her work schedule, plaintiff oftentimes was absent from home. When plaintiff was away, the parties either arranged for a babysitter, or would have defendant stay with the child in New Jersey. At that time, both parties felt that the child was too small to travel to New York to stay with defendant.

Shortly before the child's first birthday, the parties changed the arrangement and the child began spending time both in New Jersey, and in New York. On occasion, plaintiff would travel to New York and stay with defendant and the child. Then, around March 2017, plaintiff ended the parties' relationship. From that time forward, although the child continued to spend time with each parent and in each state, plaintiff ceased travelling to defendant's residence in New York.

Defendant takes the position that during the relevant time period, New York was the child's home state for purposes of jurisdiction. Plaintiff takes the contrary position and asserts that jurisdiction is proper in New Jersey.²

After considering the testimony of the parties, the documents submitted into evidence and the arguments made, the court agrees with defendant. The court finds that New York, not New Jersey, was the child's home state during the six months prior to when plaintiff filed her application. As such, this court does not have jurisdiction.

B.

During the time prior to when she filed her application for custody, plaintiff worked as a flight attendant. The credible testimony showed that plaintiff's employer was inflexible with respect to scheduling. Plaintiff had to accept the work schedule offered, even if it contained overnight flights spanning multiple days. After the child was born, plaintiff was, however, able to reach an agreement with her employer that allowed her to work less than full time. Under that arrangement, plaintiff worked alternating months. Plaintiff would be "on" (available for work) for a month, and "off" (not working) the following month.

The parties had discussed the month on, month off work arrangement. Plaintiff anticipated that once her new work arrangement was in place, she and defendant would each have an equal share of time with the child. The evidence showed that the arrangement did not work as plaintiff had anticipated. The credible testimony of both parties was that defendant had the child for significant periods of time even during the times the plaintiff was not working.

Plaintiff herself testified that she would be on flights for approximately fourteen to sixteen days during the months when she was working. She further testified that during those times, the child stayed with defendant in New York. Moreover, the testimony from both parties showed that even during the times when plaintiff was not working, the child spent every weekend in New York, spent additional time in New York for ongoing programs and activities, and as requested by defendant. From this credible testimony, the court finds that even when plaintiff was available to have the child in New Jersey, activities and events in New York, and defendant's requests took precedence.

With respect to activities and programs, defendant's credible testimony showed that virtually all of the child's school, church, programs and regular activities take place in New York. The child's pre-school, the charter school where she will attend kindergarten, and the church that she regularly attends and where she participates in additional programs, are all in New York.

In particular, defendant's credible testimony showed that the child completed the "Baby College" program at the Harlem Children's Zone located on East 125th Street, New York, New York (Children's Zone). The Baby College program is for children age newborn to three years. Defendant credibly testified that the child has consistently attended programs at the Children's Zone. The child has been accepted into the Promise Academy, which is part of the Harlem Children's Zone. After the child finishes the Promise Academy program, she will attend Promise Charter School in Harlem. Promise Academy is located approximately five blocks from defendant's residence in New York. The undisputed testimony also showed that the child regularly attends age appropriate programs at The Abyssinian Baptist Church in New York, New York. The Church programs, which start Sunday at 10:00 a.m., include breakfast, classes and worship services.

The evidence adduced at the hearing shows that all of the programs that have continuity take place in New York. There was no evidence that the parties at any time had made plans for the child to attend school, church or ongoing programs in New Jersey. The court recognizes that the child spent time with plaintiff, and had some health care in New Jersey. The court finds, however, that the times the child spent in New Jersey were in the nature of temporary absences from New York.³

The court finds that the arrangement described above lasted for at least the six months prior to when plaintiff filed her application.

C.

The evidence showed that defendant notified his landlord that a child was residing in his apartment and appropriate window guards were installed. Defendant has also established a bank account for the child in New York. For her part, plaintiff credibly testified that the child is listed on the lease for the apartment in New Jersey. In addition, the child's social security card and passport list her address as being in New Jersey, she has a Women, Infants and Children (WIC) card from New Jersey and she is enrolled in New Jersey Family Care.

With respect to medical care, defendant testified that the child had a check-up in New York on September 14, 2018. That check-up was required in order for the child to attend programs at the Harlem Children's Zone. While defendant testified that he is looking for a doctor for the child in New York, other than the check-up noted above, the child's health care has been provided in New Jersey. The court notes, however, that except for an issue concerning low iron, the child's health care mainly involves routine check-ups.

The court has considered the testimony of the witnesses and has reviewed the documents admitted into evidence. Having done so, the court now applies the facts to the law in order to determine jurisdiction.

II.

The court's jurisdiction with respect to child custody is set out in the New Jersey Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA was adopted in 2004 and is codified at N.J.S.A. 2A:34-53 to -95. New Jersey enacted the UCCJEA "in an effort to avoid jurisdictional competition and conflict between jurisdictions in favor of cooperation with ...