Case Update (23 Sept 2024): SP v. ARB; custody case conflates with request to return child (presumably under Abduction Convention) and results in a final custody order
The case was treated as a custody case. It is unclear as to whether it was, however. Both parties, at the trial level, represented themselves. The parties’ child, now 11 years old, traveled from her home in Jamaica to New Jersey with her father and his Wife for a limited duration trip in late 2021. The Father then alerted the Mother that the child did not want to return, claiming that the Step-Father in Jamaica had “physically abused her.” The Mother in Jamaica filed an application under the Hague Abduction Convention with the Jamaican Central Authority. Then, she filed an emergency motion in the NJ Superior Court, asking for the child to be returned to Jamaica. The Appellate Division stated, “Plaintiff did not apprise the court of her Hague Convention application.” Based on this, presumably she did not specifically reference the Hague Abduction Convention in her motion, filed with the court. The Superior Court exercised temporary emergency jurisdiction, and scheduled a plenary hearing, and ordered that the parents share joint legal custody with the Father in NJ having primary residential custody, temporarily. With no custody case presumably having been filed in Jamaica, the NJ court then set in a full multi-day hearing and took testimony, which lead to the court having “concerns about the stability of the home in Jamaica” and granting the Father’s petition to relocate the child to the USA, “implicitly denying [Mother’s] application to return the child to Jamaica”. The Mother appealed, arguing that the NJ court had no subject matter jurisdiction to issue an initial child-custody determination under the UCCJEA.
The Appellate Division noted that the UCCJEA is the exclusive basis for determining child-custody jurisdiction. It prioritizes a child’s “home state” as the basis to assume jurisdiction to issue an initial child-custody order, and if no other state has “properly” exercised its jurisdiction, then the court in NJ may do so. The Appellate Division here noted that the NJ Superior Court did not have subject matter jurisdiction, because the complaint was filed less than six months after the child stepped foot into NJ, and could not have been the child’s home state at the time of the commencement of the proceeding. The court did, however, have temporary emergency jurisdiction, as a child’s “mere presence in New Jersey satisfies” the requirements in the UCCJEA to exercise that temporary jurisdiction. Because the NJ Superior Court properly assumed temporary jurisdiction, and the record is devoid of any evidence of a Jamaican custody proceeding, then the NJ custody order could become permanent. Therefore, the Appellate Division affirmed.
The one question that remained open is that of the Hague Abduction Convention, which was apparently not argued on appeal (or perhaps at trial). If the Mother invoked the Abduction Convention when she sought the child’s return by filing in NJ state court, and the court then proceeded to decide custody, it flies in the face of Article 16 of the Convention. Without seeing the pleadings, or knowing whether the Convention was plead and/or argued, it is difficult to determine whether this was an argument that could or should have been made. Often Hague Abduction Convention cases that are filed in state court can easily become conflated with custody proceedings, particularly if they are not artfully argued.
