Ivaldi v. Ivaldi

• Decision Date: 23 December 1996
• Citation: 147 N.J. 190,685 A.2d 1319
• Parties: , 65 USLW 2480 Jean Jacques Marcel IVALDI, Plaintiff-Appellant, v. Lamia Khribeche IVALDI, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 190

147 N.J. 190

685 A.2d 1319, 65 USLW 2480

Jean Jacques Marcel IVALDI, Plaintiff-Appellant, v.Lamia Khribeche IVALDI, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Nov. 4, 1996.

Decided Dec. 23, 1996.

Patricia E. Apy, Red Bank, argued, the cause for appellant(Paras, Apy & Reiss, attorneys).

Lamia Khribeche Ivaldi, submitted a letter in lieu of brief pro se.

The opinion of the court was delivered by

POLLOCK, J.

The primary issue is whether under the Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-29 to -52 ("the Act" or "the UCCJA"), New Jersey courts have subject-matter jurisdiction to determine this international child-custody dispute.A second issue is whether the courts of New Jersey provide a more convenient forum to resolve the issue of custody.

Plaintiff, Jean JacquesMarcel Ivaldi("the father"), and defendant, Lamia Khribeche Ivaldi("the mother"), are engaged in matrimonial actions in Morocco and New Jersey.Each seeks a divorce from the other and custody of the only child of their marriage, Lina Camille Ivaldi("Lina" or "the child").

In February 1995, the mother removed the child from New Jersey, where the child had resided with both parents, to Morocco.The mother then instituted a proceeding in Morocco for divorce and custody of the child.Less than a week later, the father filed this action in the Superior Court of New Jersey, Family Part, seeking a divorce, equitable distribution, support, and sole custody of the child.The Family Part denied the mother's motion to dismiss the complaint.

The Appellate Division granted the mother's motion for leave to appeal and reversed, holding that the Family Part did not have subject-matter jurisdiction to entertain the father's claim for custody.288 N.J.Super. 575, 672 A.2d 1226(1996).It also held that principles of international comity required deference to the jurisdiction of the Moroccan court.Id. at 589, 672 A.2d 1226.We granted the father's petition for certification.145 N.J. 372, 678 A.2d 713(1996).

We hold that the jurisdictional provisions of the Act vest the Family Part with subject-matter jurisdiction to determine this custody dispute.We remand the matter to the Family Part for a determination whether New Jersey or Morocco provides the more appropriate forum.If the Family Part determines that Morocco is the more convenient forum, it should dismiss the custody claim without prejudice.

I.

From the limited record, we gather the following facts.In 1990, the mother, a Moroccan citizen, and the father, a citizen of both the United States and France, met while studying hotel and restaurant management in Switzerland.On September 18, 1992, they were married in Rabat, Morocco.Following the wedding, the couple resided in France.The father asserts that the couple had a civil wedding ceremony in France.According to the mother, the Moroccan ceremony was both religious and civil.She states that the purpose of the French ceremony was to assuage the father's French relatives.Lina was born in France on June 21, 1993.

The parties dispute the subsequent facts.The mother asserts that in October 1993 the couple moved with Lina to Rabat, Morocco, where they remained until the end of January 1994.The father claims that before the family moved to New Jersey Lina visited, but did not reside, in Morocco.

In January 1994, the father moved to New Jersey, where his parents operate a restaurant.A month later, the mother and Lina joined him.Following their move to New Jersey, the couple experienced substantial marital difficulties.The father eventually moved into his parents' house in Flanders, Morris County.

On February 22, 1995, the mother and father, each represented by counsel, entered into a comprehensive separation agreement.The agreement specifically states that the parents will share joint legal custody of Lina and that the mother will have physical custody.Significantly, the agreement expressly allows the mother, provided that she abides by all relevant terms of the agreement, to leave the United States with Lina and to reside in France or Morocco.

Under the agreement, the father is allowed twelve weeks of visitation per year with Lina.The agreement further requires the mother to permit Lina to travel to the country in which the father resides.Finally, the parties agreed that New Jersey law governs the terms of the agreement, and that they will incorporate the agreement into any divorce judgment.The agreement does not specify the jurisdiction in which any matrimonial action, including one seeking custody of the child, will proceed.

Within a week of signing the agreement, the mother sent Lina to live with the mother's parents in Morocco.The mother joined Lina a few weeks later.

On April 27, 1995, the mother filed an action for divorce and child custody in the Primary Court of Rabat in Morocco.On May 2, 1995, the father filed a complaint in the Superior Court seeking, among other things, sole custody of Lina.Pursuant to a court order, he served the mother by overnight mail on August 8, 1995.She filed a motion to dismiss several days later.

On September 29, 1995, the Family Part denied the mother's motion to dismiss.The court held that the Act did not apply, but that the court had subject-matter jurisdiction.Based on the child's residence in and substantial contacts with New Jersey, the court concluded that New Jersey was Lina's "home state" within the meaning of the Act.The trial court viewed the mother as holding the child "hostage."

The Family Part ordered the mother to return Lina to the United States within a week and temporarily awarded the father sole custody.It also restrained the mother from proceeding with her custody action in Morocco.

The Appellate Division granted a temporary stay and requested the Family Part to supplement its oral opinion with a written statement of reasons.In its opinion, the Family Part explained that the Act did not apply because the Moroccan court had not yet entered a custody order.Finding that Morocco has not yet signed the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention on Child Abduction"), the Family Part ruled that the Convention did not apply.The Family Part held that New Jersey was Lina's "home state" and that it had jurisdiction to determine the issue of custody.The court noted that when Lina left New Jersey, she had been a resident for more than one-half of her lifetime.Stating that the father believed the mother would return the child to New Jersey, the court found that the mother had removed Lina by "subterfuge."

The Appellate Division granted the mother's motion for leave to appeal and continued the stay of the Family Part's order.On March 15, 1996, the Appellate Division reversed.288 N.J.Super. 575, 672 A.2d 1226(1996).It found "no basis in the record for the Family Part judge's conclusion that [the mother] wrongfully removed Lina from New Jersey to Morocco.The separation agreement clearly contemplated that [the mother] would leave the United States with Lina and take up residence in another country."Id. at 581, 672 A.2d 1226.The Court continued:

So too, the record is barren of anything supporting the judge's finding that [the mother] breached the agreement by denying [the father's] right of visitation.Although [the father] in his affidavit which accompanied his complaint alleged in conclusory fashion 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.

[Id. at 581-82, 672 A.2d

1226.]

The Appellate Division also held that the Family Part did not have subject-matter jurisdiction.It deemed the Act inapplicable, reasoning that the Act focuses on avoiding jurisdictional conflict between the courts of different states, not of different countries.Id. at 583, 672 A.2d 1226.The court then turned to N.J.S.A 2A:34-51, the section of the Act treating international custody disputes.It construed the section as conferring jurisdiction only when a New Jersey court is asked to enforce a custody decree entered by the authorities of a foreign country.Id. at 584, 672 A.2d 1226.

The Appellate Division held further that no federal statute conferred subject-matter jurisdiction on the Family Part.The court declined to apply the Hague Convention on Child Abduction, noting that Morocco had not signed the Convention.Id. at 587, 672 A.2d 1226.In addition, the court found inapplicable the Parental Kidnapping Prevention Act ("the PKPA").It reasoned that the PKPA concerned the enforcement in one state of decrees entered by the courts of another state, not those of another country.Id. at 588, 672 A.2d 1226.

Finally, the Appellate Division held that even if the Family Part had subject-matter jurisdiction, principles of international comity mandated deference to the Moroccan court.Id. at 589, 672 A.2d 1226.The court held that the Moroccan courts could fairly resolve the issue of custody in accordance with the best interests of the child.Ibid.

At oral argument before us, the father's counsel stated that the parties are participating in mediation in the Moroccan proceeding.In that proceeding, the father is represented by counsel and is actively contesting the mother's claim to custody of Lina.By comparison, the mother is not represented by counsel before this Court.

II.

To determine whether the Act applies, we begin with its terms.The Act vests the Superior Court with jurisdiction to make a child-custody determination in a variety of circumstances.For example, the court has jurisdiction if New Jersey is the "home state" of the child, if the child and at least one parent have "significant connections" with New Jersey, or if no other state is the home state or has significant...