SHAWNA GRANT v. ARNOLD PEOPLES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3240-12T3

SHAWNA GRANT,

Plaintiff-Respondent,

v.

ARNOLD PEOPLES,

Defendant-Appellant.

___________________________________

November 22, 2013

 

Argued November 7, 2013 Decided

 

Before Judges Grall, Waugh, and Nugent.

 

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-2752-13.

 

Jessica Ragno Sprague argued the cause for the appellant (Weinberger Law Group, L.L.C., attorneys; Ms. Sprague, on the brief).

 

Rhea L. Moore argued for the cause for the respondent.

 

PER CURIAM

 

Defendant Arnold Peoples, an Illinois resident, appeals from a Family Part order that denied his motion to dismiss for lack of jurisdiction plaintiff Shawna Grant's complaint seeking custody of their three-year-old child. Peoples contends the judge who entered the order misapplied the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95, when he determined that New Jersey, not Illinois, had jurisdiction over the custody dispute. Our review of the motion record reveals the judge did not make the findings of fact that were necessary to determine whether New Jersey had initial jurisdiction under the UCCJEA. The judge also misapplied the law. Accordingly, we reverse and remand for further proceedings.

I.

Grant and Peoples once shared a relationship but never married. During their relationship Grant conceived their daughter. From her birth in January 2010 through December 24, 2011, their daughter lived with Grant in New Jersey. Peoples never resided in New Jersey but visited Grant and their daughter there, and their daughter spent some time with him at his Virginia residence. In September 2011 Peoples moved to Illinois, where Grant and the child visited him during the Thanksgiving and Christmas holidays that year. The child remained with Peoples after Grant returned to New Jersey following the Christmas holidays.

From December 24, 2011 through February 2013, when the parties filed custody actions in New Jersey and Illinois, their daughter spent time both with Grant in New Jersey and with Peoples in Illinois. She stayed with her father in Illinois from December 24, 2011 through May 27, 2012; with her mother in New Jersey from May 28, 2012 to October 6, 2012; and with her father in Illinois from October 7, 2012 through March 2013 when the Family Part hearing occurred. Grant and Peoples sharply dispute the reason their daughter spent time with the other parent. Each parent contends the child was temporarily visiting when she was with the other parent.

Grant claimed the time the child spent in Illinois from December 24, 2011 to May 27, 2012 was temporary. According to Grant, she told Peoples in November 2011 that she had conceived their second child. He wanted her to move to Illinois so that they could be together as a family. On January 2, 2012, when Grant returned to New Jersey for medical treatment following her holiday visit with Peoples in Illinois, she permitted Peoples to keep their child temporarily while she was in New Jersey. In February 2012, when she returned to Illinois to get the child, she was no longer pregnant and Peoples ended their relationship. She agreed to permit their daughter to remain with Peoples until May 2012. Grant claims the only reason she agreed to allow their daughter to stay with Peoples is because Peoples threatened her with deportation; she was not a legal resident of the United States.

Peoples disputed Grant's testimony. According to Peoples, Grant wanted their daughter to live with him to take advantage of a better opportunity "in terms of schooling and stability[.]" Peoples claimed that Grant wanted to change jobs and needed to work on some other personal matters. During Grant's holiday stay with Peoples in December 2011, she and Peoples visited a day care center called KinderCare and, together, they registered their daughter. The child began attending KinderCare on January 3, 2012.

Peoples produced a letter from KinderCare Learning Centers in Darien, Illinois, confirming the child was registered on December 30, 2011, and attended full-time from January 3 through May 25, 2012. The letter also stated that the child returned to KinderCare on October 10, 2012, and was still attending KinderCare as of February 2013. Peoples also produced a letter from a pediatric practice in Darien, Illinois, confirming the child had been a patient there since December 27, 2011, and that her next appointment was scheduled in March 2013.

Grant and Peoples also dispute the reason their daughter returned to New Jersey on May 27, 2012, and stayed with Grant until October 6, 2012. Grant claimed that it was because she was the custodial parent. During that time, Grant signed a lease for a new apartment and listed herself and her daughter as occupants. Additionally, the child was treated by her New Jersey pediatrician three times, the last on September 25, 2012. Peoples, however, claims that their daughter was merely visiting with Grant for the summer, and that both he and Grant agreed the child would return to Illinois in late September or early October, at which time she would also return to KinderCare.

The child has remained with Peoples in Illinois since returning there in October 2012. Grant claims the child's current stay with Peoples was supposed to be temporary and that their daughter was scheduled to return to New Jersey in February 2013. Grant also claims she commenced the New Jersey custody action when Peoples refused to return the child to New Jersey. According to Peoples, Grant agreed that their daughter's residence would be in Illinois.

Grant commenced this action by filing a custody complaint in New Jersey on February 15, 2013. Six days later, on February 21, 2013, Grant filed a verified petition for order to show cause seeking the child's return on an emergent basis. On the same day, the court denied her application for emergent relief, but scheduled a hearing. Peoples filed opposition contesting, among other things, the court's jurisdiction. On February 25, 2013, Peoples filed a petition in Illinois seeking a determination that he was the child's father and an order granting him permanent custody.

On March 8, 2013, after conducting a hearing in which Grant testified in person and Peoples testified by telephone, the Family Part judge determined that New Jersey had jurisdiction over the parties' custody dispute. In his decision, the judge initially framed the issue he had to decide as one involving the single question of whether New Jersey or Illinois is the home state. The judge then explained that he "ha[d] to look in this case as to the totality of the facts before the court[.]" After recounting the evidence, and without making any findings of his own or any credibility determinations, the judge determined that "in the totality of the child's life . . . New Jersey qualifies as a home state." The judge qualified his decision by acknowledging that he did not know if issue had been joined in the Illinois action, then reiterated the basis for his decision, explaining that the child had spent the greater percentage of her life in New Jersey, that her mother resides in New Jersey, and that Grant had been the primary caretaker during most of the child's life.

The court entered an implementing order. Peoples appealed.

 

II.

Peoples contends on appeal that the trial judge made factual and legal errors when he decided that New Jersey was the home state for purposes of jurisdiction. He argues that, as a matter of fact, New Jersey could not have been the home state, because his daughter did not reside in New Jersey for six consecutive months before her mother commenced the custody action here. He also argues that, as a matter of law, the judge erred by analyzing the facts under a "totality of . . . life" standard, rather than under the legal principles contained in the UCCJEA.

Grant argues that because she has been the custodial parent since their daughter's birth, and because their daughter's visits with Peoples were temporary and often coerced, the judge correctly decided that New Jersey is the home state and has jurisdiction over the parties' custody dispute.

Our role in reviewing a decision of the family court is a limited one. Cesare v. Cesare, 154 N.J. 394, 411 (1998). The findings of the trial court are binding on appeal if they are supported by "adequate, substantial, credible evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)). Unlike our review of its findings of fact, however, we review a "trial court's interpretation of the law and the legal consequences that flow from established facts" de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

In the case before us, the parties' custody dispute is subject to the UCCJEA, which Illinois adopted in 2003 and New Jersey adopted in 2004. See Table of Jurisdictions Wherein Act Has Been Adopted (preceding N.J.S.A. 2A:34-53). The UCCJEA "should be interpreted so as to avoid jurisdictional competition and conflict and require cooperation with courts of other states as necessary to ensure that custody determinations are made in the state that can best decide the case." Griffith v. Tressel, 394 N.J. Super. 128, 138 (2007). One of the "primary objectives of the UCCJEA" is to give priority to the home state of the child as a basis for exercising jurisdiction. Dalessio v. Gallagher, 414 N.J. Super. 18, 22 (App. Div. 2010). See also Senate Judiciary Committee, Statement to S.150 (enacted as L. 2004, c. 147) (reprinted following N.J.S.A. 2A:34-53) (explaining that certain updated provisions "give[] priority to the home state as a ground for taking jurisdiction").

The UCCJEA defines "home state" as

the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.

 

[N.J.S.A. 2A:34-54; accord 750 ILL. COMP. STAT. ANN. 36/102 (LEXIS through Public Act 98-589).]

 

This definition is central to the statutory analysis a court must undertake when deciding whether New Jersey or another state has jurisdiction under the UCCJEA to make an initial custody determination.

The UCCJEA provision that vests New Jersey courts with jurisdiction to make an initial custody determination is N.J.S.A. 2A:34-65, which states:

a. Except as otherwise provided in . . . [N.J.S.A. 2A:34-68], or . . . [N.J.S.A. 9:2-12.1] concerning a service member's absence due to a deployment or service-related treatment as set forth in that section, a court of this State has jurisdiction to make an initial child custody determination only if:

 

(1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

 

(2) a court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under . . . [N.J.S.A. 2A:34-71 or N.J.S.A. 2A:34-72] and:

 

(a) the child and the child's parents, or the child and at least one parent or a person acting as a parent have a significant connection with this State other than mere physical presence; and

 

(b) substantial evidence is available in this State concerning the child's care, protection, training and personal relationships;

 

(3) all courts having jurisdiction under paragraph (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under . . . [N.J.S.A. 2A:34-71 or N.J.S.A. 2A:34-72]; or

 

(4) no state would have jurisdiction under paragraph (1), (2) or (3) of this subsection.

 

b. Subsection a. of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this State.

 

c. Physical presence of, or personal jurisdiction over, a party or a child is neither necessary nor sufficient to make a child custody determination.[1]

 

When a New Jersey court is faced with a UCCJEA jurisdictional dispute, the threshold decision it must make under the statute is whether "this State" was the child's home state on the date the custody proceeding was commenced or within six months before the commencement of the proceeding.2

In other words, the court must decide whether the child whose custody is at issue resided in this State at least six consecutive months immediately before the commencement of the custody proceeding, or within six months of the commencement of the proceeding. When conducting that analysis, the court must take into account that "[t]he statutory definition of 'home state' allows the child's 'temporary absence' from the home state within the six month period." Sajjad v. Cheema, 428 N.J. Super. 160, 173 (App. Div. 2012).

Here, the judge did not consider whether New Jersey was the home state under N.J.S.A. 2A:34-65(a)(1); nor did he consider whether Illinois was the home state under N.J.S.A. 2A:34-65(a)(2). Rather, the judge decided the "home state" issue under a standard that appears to be a variation of the "significant connection" analysis under N.J.S.A. 2A:34-65(a)(2) (a) and (b). However,

unless the home state declines jurisdiction, a New Jersey Court cannot assume "significant connection" jurisdiction over an initial child custody determination under N.J.S.A. 2A:34-65(a)(2) if another state has jurisdiction under N.J.S.A. 2A:34-65(a)(1) either as (1) the child's home state or (2) the child's home state within six months prior to the commencement of the proceeding and the child is absent from the home state but a parent continues to live in that state.

 

[Dalessio, supra, 414 N.J. Super. at 23.]

 

Grant filed her custody complaint on February 15, 2013. Under N.J.S.A. 2A:34-65(a)(1), the court should have looked back to August 15, 2012, to determine whether New Jersey was the home state within that time frame. Because the parties' daughter was absent from New Jersey during those periods, whether New Jersey was the home state depended on whether the absences were temporary. That determination was necessary because "[a] period of temporary absence . . . is part of the [six consecutive months] period." N.J.S.A. 2A:34-54.

If the judge had determined that the time the child spent with her father did not constitute a temporary absence from New Jersey; or if, as Peoples testified, the judge had determined that Grant agreed the child should permanently reside with Peoples in Illinois; then New Jersey would not have had jurisdiction under N.J.S.A. 2A:34-65(a)(1).

Whether the child's absences from New Jersey were temporary involved a fact-sensitive analysis. The court should have considered such factors as the parents' explanations for their daughter's absence from New Jersey and whether the absences were of indefinite duration, see Sajjad, supra, 428 N.J. Super. at 173; and whether the child's time with her father was related to holidays or vacations, see Neger v. Neger, 93 N.J. 15, 33 (1983) (analyzing the concept of temporary absence under the former Uniform Child Custody Jurisdiction Act, N.J.S.A. 2A:34-28 through -52). Ultimately, the court was required to determine whether the absences from New Jersey were "truly characteristic of a visit." Ibid.

Although the testimony in this case was conflicting, the judge was required to make credibility determinations and resolve the testimonial conflicts. "Whenever a challenge to the court's ability to exercise subject matter jurisdiction in a custody matter is presented, a Family Part judge must scrutinize the facts and make specific findings supporting the court's assumption or rejection of subject matter jurisdiction." Sajjad, supra, 428 N.J. Super. at 175.

If the judge did not conclude that New Jersey was the home state under N.J.S.A. 2A:34-65(a)(1), he then should have determined whether Illinois was the home state under N.J.S.A. 2A:34-65(a)(2). That analysis would have required him to undertake a similar fact-finding process to determine whether the parties' daughter resided in Illinois with her father and merely visited her mother on a temporary basis. If he concluded that Illinois was not the home state under that analysis, only then should he have conducted a significant connection analysis under N.J.S.A. 2A:34-65(a)(2) (a) and (b).

Because the judge did not analyze the child's home state, and did not conduct a proper statutory analysis, we reverse and remand for further proceedings. Although the judge may decide that he does not require additional testimony to make necessary credibility determinations and factual findings, he may, in his discretion, take additional testimony if either he or the parties feel such testimony is warranted. In any event, the judge should state in his decision his factual findings and correlate them with his legal conclusions.

We note that when the judge made his decision, he said it did not mean Illinois would not qualify as a home state and he did not know whether Illinois had exercised jurisdiction. The Judge should have communicated with the Illinois court. The UCCJEA encourages courts in different states to cooperate in resolving interstate custody disputes, N.J.S.A. 2A:34-64, and specifically authorizes "[a] court of this State [to] communicate with a court in another state concerning a proceeding arising under this act." N.J.S.A. 2A:34-62(a).

In view of our conclusion that the judge did not apply the proper statutory criteria when he determined that New Jersey had jurisdiction, we need not address Peoples' argument that the evidence did not support the judge's decision.

Reversed and remanded for further proceedings consistent with this opinion. The trial court shall schedule a further hearing within forty-five days.

1 The corresponding Illinois statute provides that Illinois has jurisdiction to make an initial custody determination if Illinois:

 

is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from [Illinois] but a parent or person acting as a parent continues to live in [Illinois].

 

[750 ILL. COMP. STAT. ANN. 36/201(1) (LEXIS through Public Act 98-589).]

2 In Dalessio, we resolved the apparent conflict between N.J.S.A. 2A:34-54 (defining a child's home state as where the child has lived for "at least six consecutive months immediately before the commencement of a child custody proceeding") and N.J.S.A. 2A:34-65(a)(1) (vesting jurisdiction in this State if it "is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding"). We explained that the definition of home state in N.J.S.A. 2A:34-54 cannot be construed to "effectively read one of the predicates for home state jurisdiction under N.J.S.A. 2A:34-65(a)(1) out of the statute." Dalessio, supra, 414 N.J. Super. at 24.