DIVISION OF YOUTH AND FAMILY SERVICES v. D.L and M.M

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1848-07T41848-07T4

DIVISION OF YOUTH AND

FAMILY SERVICES,

Plaintiff,

v.

D.L.,

Defendant-Appellant,

and

M.M.,

Defendant,

v.

S.E.,

Defendant-Respondent,

___________________________________________

IN THE MATTER OF A.E. and K.E.,

minors.

___________________________________________

 

Argued August 26, 2008 - Decided

Before Judges Messano and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FN-16-117-06.

Richard S. Mazawey argued the cause for appellant.

Brad M. Micklin argued the cause for respondent.

Christopher A. Huling, Assistant Deputy Public Defender, argued the cause for minors (Yvonne Smith Segars, Public Defender, Law Guardian, attorney; Mr. Huling, on the brief).

PER CURIAM

Defendant D.L. appeals the order of November 27, 2007, allowing defendant S.E., who is the custodial parent, to take their two children on a vacation to Egypt. We affirm.

D.L., the mother, and S.E., the father, are the parents of two living children: A.E., born on March 29, 1995, and K.E., born on May 22, 1996. The parties were divorced on March 21, 2001. The property settlement agreement provided D.L. with residential and legal custody of the children, and S.E. was given liberal and reasonable parenting time. D.L. became involved with defendant M.M., who later became her second husband. In August 2003, M.M. beat D.L. and her children, and criminal and domestic violence proceedings were brought against him.

This action was thereafter commenced by the Division of Youth and Family Services (DYFS) on February 17, 2006, for care, custody and supervision of the two surviving children of D.L. and S.E. and of a third child that D.L. had with her second husband, M.M. This latter child is not involved in this appeal.

In September 2007, after a case management review hearing, the court awarded S.E. legal custody of his two children. S.E. then sought the court's permission to take the children on a vacation to Egypt. S.E., who is a native of Egypt and an Egyptian citizen, sought to take the children to Egypt to have them meet relatives and to familiarize them with their Islamic heritage. Further, the children's therapist and Dr. Needleman thought that the trip would be in the best interests of the children. Since S.E. had legal custody of the children, neither DYFS nor the law guardian objected. However, D.L. objected, expressing her concern that S.E. would not return the children to the United States and that the children would not be safe in Egypt. Her attorney argued that if S.E. failed to return the children to the United States, D.L. would be without a remedy since Egypt was not a signatory of the Hague Convention on the Civil Aspects of International Child Abduction. Further, due to information about Egypt set forth on the U.S. Department of State consulate information sheet about the safety of American tourists in Egypt, D.L. argued that Egypt was not a safe place for them to visit.

The trial court granted S.E.'s application, noting the benefit to the children of learning about their religious and cultural heritage and the opinions of the mental health professionals that the trip would be good for the children. Regarding the safety concerns, he noted that the children would be with their Egyptian father and that Egypt was not on the list of countries where Americans were advised not to go.

With regard to D.L.'s concern that S.E. would not return the children to the United States, the trial court expressed its belief that S.E. would return with the children, and forcefully reminded S.E. that if he did not do so, he would have to face the unhappiness of his two children. S.E. was required to provide proof of his roundtrip airline tickets for himself and the children, and addresses and telephone numbers of where the children would be during the trip. Finally, the trial court required S.E. to post a bond of $100,000 and provided that if he did not return with the children, the bond would be payable to D.L. for her use in the legal struggle to secure the return of the children. An order was entered on November 27, 2007, setting forth these requirements and allowing S.E. to take the children to Egypt for two weeks in December 2007.

D.L.'s application to the Appellate Division for a stay of this order was denied on December 6, 2007. S.E. took the children to Egypt pursuant to the order and returned to New Jersey with them. S.E.'s application to dismiss this appeal as moot was denied by order dated May 8, 2008, since "[t]he issue may arise again with an inability to review in emergent circumstances."

On appeal, D.L. contends that the trial court failed to apply the proper criteria in evaluating the application and that accordingly the decision should be reversed. Specifically, she contends that the trial court should have applied the twelve factors governing the removal of a child from the state set forth in Baures v. Lewis, 167 N.J. 91 (2001) and MacKinnon v. MacKinnon, 191 N.J. 240 (2007), stay denied, __ U.S. __, 128

S. Ct. 7, 168 L. Ed. 2d 784 (2007). D.L.'s reliance on the twelve removal factors set forth in Baures v. Lewis, supra, 167 N.J. at 116-17, is misplaced, since that case concerned an application to permanently relocate a child to another State, and did not deal with a mere temporary removal for the purpose of a vacation as we have here. Id. at 99; see also MacKinnon v. MacKinnon, supra, 191 N.J. at 242 (applying Baures v. Lewis to a permanent international relocation request).

D.L. objected to the trip because she was concerned about the safety of the children in Egypt. In addition, if S.E. did not return the children to New Jersey, she would have limited legal recourse to compel their return, since Egypt is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.

The fact that Egypt is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction does not necessarily prevent S.E. from taking his children to that country. See Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152, 155 (App. Div.) (allowing a father to take his child to his native Lebanon over the objections of the mother despite the fact that Lebanon was not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction), certif. denied, 178 N.J. 34 (2003). In Abouzahr, we noted that a bright line rule prohibiting such trips would "unnecessarily penalize a law-abiding parent and could conflict with a child's best interest by depriving the child of an opportunity to share his or her family heritage with a parent." Id. at 155.

The legal difficulties in compelling the return of the children to New Jersey if they are not returned voluntarily is of course a factor for the court to consider in an application such as this. However, other relevant factors must also be taken into account. As we said in Abouzahr:

The danger of retention of a child in a country where prospects of retrieving the child and extraditing the wrongful parent are difficult, if not impossible, is a major factor for a court to weigh in ruling upon an application to permit or to restrain out-of-country visitation. But it is not the only factor. In addition to the laws, practices and policies of the foreign nation, a court may consider, among other things, the reason for the visit, the safety and security of the child, the age and attitude of the child to the visit, the relationship between the parents, the propriety and practicality of a bond or other security and the character and integrity of the parent seeking out-of-country visitation as gleaned from past comments and conduct.

[Id. at 156.]

In allowing the trip, the trial judge considered the legal difficulties D.L. would face in securing the children if they were not voluntarily returned, and he considered the contention that it was unsafe for Americans to travel in Egypt. However, in concluding that the trip should be allowed, he took into account the opinions of two professionals that the trip would be beneficial to the children, the importance of the children learning about their cultural background, his evaluation that S.E. would return the children, and the fact that the children would be safer traveling in Egypt with their Egyptian father than if they were traveling only as Americans. To further assure that the children would be returned, he required S.E. to post a $100,000 bond, which would go to D.L. if S.E. did not return, in order to fund her efforts to secure the children's return. Further, S.E. was required to provide his telephone numbers and addresses in Egypt and proof of round trip plane tickets.

We defer to the factual findings of the trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). Further, we give deference to the factual findings of family court judges due to their expertise in family matters. See Cesare v. Cesare, 154 N.J. 349, 413 (1998). "Judges of the Family Part are regularly called upon to make exceedingly difficult and delicate decisions as to the best interest of children, and we are obliged to give deference to both their findings and the exercise of their sound discretion." Abouzahr v. Matera-Abouzahr, supra, 361 N.J. Super. at 157. Our careful review of the record reveals substantial and credible evidence to support the trial judge's decision that S.E. should be allowed to take the children on a vacation to Egypt.

We note that the trip has already been taken and that S.E. returned to New Jersey with the children. His motion to dismiss the appeal as moot was denied since the circumstances could arise again. Our affirmance does not mandate that such visits be allowed in the future. Any future application must be decided on the facts presented at that time since circumstances may change. However, our affirmance does mean that under the facts presented in this appeal, the trial court was well within its discretion to allow the trip. Further, the fact that S.E. has already taken one such trip with the children and returned is a substantial factor in favor of future similar trips and should be considered when future applications are made. In addition, the trial court may also explore the feasibility of the suggestions set forth by the Supreme Court in MacKinnon v. MacKinnon, supra, 191 N.J. at 246, dealing with an application to relocate a child to Japan, a country also not a party to the Hague Convention on the Civil Aspects of International Child Abduction. There the court stated: "In future proceedings, when a parent raises concerns regarding enforceability, the trial court should pursue alternative solutions to such problems by, for example, encouraging the parties to obtain appropriate orders in the foreign nations or enter into contractual agreements, enforceable overseas, governing visitation arrangements." Id. at 253.

Affirmed.

 
 

The eldest child, I.E., born on June 17, 1993, committed suicide in October 2005.

S.E.'s earlier motions to take the children to Egypt, made when DYFS had custody, had been denied.

(continued)

(continued)

4

A-1848-07T4

RECORD IMPOUNDED

September 18, 2008