A-0B.K.,1 v. Z.M Telephonically

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

B.K.,1

Plaintiff-Appellant,

v.

Z.M.,

Defendant-Respondent.

___________________________________

Telephonically argued April 29, 2015 - Decided May 20, 2015

Before Judges Sabatino and Leone.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FD-07-1408-14 and FV-07-1139-14.

Suzanne J. Groisser and Michele C. Lefkowitz argued the cause for appellant (The Rachel Coalition and Partners for Women and Justice, attorneys; Jason W. Rockwell and Achchana C. Ranasinghe, on the brief).

Respondent has not filed a brief.

PER CURIAM

In this unopposed appeal, plaintiff B.K. ("the mother") challenges the Family Part's December 17, 2013 order declining to exercise jurisdiction over her two children, who defendant M.Z. ("the father") removed from New Jersey to Ghana.

For the reasons that follow, we vacate the trial court's jurisdictional ruling and remand the matter for the development of a fuller record and definitive credibility findings. We do so to enable a more informed application of the pertinent jurisdictional factors under this state's version of the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), N.J.S.A. 2A:34-53 to -95.

The sparse record presented to us reflects the following. The mother, who was born in Guinea, is currently a resident of New Jersey, where she has lived for a number of years. The father, who was born in Ghana, has resided with the mother at various times in New Jersey and New York. The domicile of the father is unclear. He had a New Jersey mailing address at the time of the proceedings in the Family Part in 2013, although he indicated to the court that he was spending lengthy periods of time each year in Ghana. Both parties are United States citizens.

The mother contends that the parties are married to one another, as evidenced by a home video she has proffered of a wedding ceremony conducted in Guinea. The father disputes that they were ever legally married. In any event, it is undisputed that the parties are the co-parents of two daughters, who were respectively born in New York in December 2004 and February 2006. The children are United States citizens.

In or about 2006, the parties and the two children moved to New Jersey. The father has been employed as a taxi driver, although he contended in the trial court that his ability to work has been curtailed by disability.

At some point in 2008, the father took the two children to Ghana without the mother. The reasons for the removal are contested by the parties. The father contends that the couple had mutually agreed to relocate the children indefinitely to Ghana due to financial difficulties and the loss of their apartment. Conversely, the mother contends that the father took the children to Ghana temporarily to introduce them to other members of his family, and that their stay was not anticipated to last more than six months. The mother has never been to Ghana.

The daughters remained continuously in Ghana for approximately five years from 2008 through the fall of 2013, when the father returned with them. The mother contends that during that five-year interval, she repeatedly urged the father to bring the children back to New Jersey. She contends that he promised her several times that he would bring them back, but in each instance failed to do so.

The father did return from Ghana intermittently several times without the children for periods of two to three months each year. According to his testimony, he did so in order to receive medical treatment for a chronic condition. On each return, he apparently stayed with the mother in New Jersey. By the fall of 2013 he had impregnated her with a third child.2

The record indicates that the father owns a business in Ghana, which provides income for the household in Ghana and for the children. According to the father, the children have been cared for by other paternal relatives in Ghana when he is absent. He contended that they have been enrolled in school there and kept in good health.

On September 17, 2013, the father brought the daughters to the parties' residence in New Jersey. According to the mother, he told her that the girls would remain in New Jersey and that he would enroll them in a New Jersey school.

Distrustful of the father's assurances, and knowing that the children had round-trip plane tickets back to Ghana, the mother filed an order to show cause in the Family Part on October 11, 2013, seeking to prevent the daughters' removal and to obtain custody. Upon learning that she had filed that application, defendant physically assaulted her after a heated argument. The police were called, and the mother received medical attention.

The mother consequently sought a temporary restraining order in the Family Part under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. In seeking restraints, the mother contended that the father not only had recently assaulted her but also had assaulted her several times in the past. The mother also sought emergency custody of the children.

The TRO and custody applications were considered by a Family Part judge at a hearing on October 16, 2013. The father appeared at that initial hearing and was represented by retained counsel. The mother was then self-represented. She contends that she had difficulty understanding the proceedings at that hearing because the French interpreter who was on the telephone lacked fluency in the mother's native language of Mandingo.

The judge who presided over the October 2013 hearing granted the TRO to the mother. However, the judge declined to grant any restraints concerning the children because the violence was solely directed against the mother and it did not appear that the father had endangered them. The judge also declined to grant the mother emergency custody of the children because it appeared that New Jersey lacked jurisdiction over them, given their most recent continuous residency of over five years in Ghana.

The matter was accordingly scheduled for a hearing on a final restraining order ("FRO"). In the meantime, the children flew back to Ghana, where they have since remained.3

The FRO hearing was conducted before a different Family Part judge ("the FRO judge") on December 17, 2013. This time the mother was represented by pro bono counsel, and the father appeared without counsel. A Mandingo interpreter was utilized, which improved the mother's ability to understand the proceedings, although apparently she still had some difficulties with the translation.

The FRO judge heard testimony from the mother concerning her allegations of domestic violence, which she said had also occurred on several prior occasions when they were living in the Bronx, in Jersey City, and in Newark. The father admitted in his own testimony that the parties had an argument about the children on the date in question, although he did not admit to punching the mother. He claimed that the argument prompted him to tell her to leave the house and to go to her sister's residence, and that, when she refused to do so, he called the police.

After the considering the domestic violence proofs, the FRO judge concluded that the mother was "reasonably credible" in her testimony, although the judge recognized the "language issues" with the interpreter that had affected the proceeding. The FRO judge concluded that the mother had proven her entitlement to final restraints by a preponderance of the evidence.

The FRO judge then turned to a reexamination of the jurisdictional issues. During her testimony in this second phase of the December 17 hearing, the mother contended that she had attempted to be reunited with the children since the time of their removal from New Jersey in 2008. She claimed that she had gone to court in New Jersey in 2012, and again in New York in early 2013, and had inquired about pursuing custody proceedings, although she presented no documents substantiating those alleged efforts.4 In addition, she claimed that she had consulted with a New York humanitarian organization in April 2013 to attempt to secure the children's return, but she provided no evidence of that consultation.

Like the judge who had heard the mother's initial application in October 2013, the FRO judge concluded that New Jersey lacked jurisdiction over the children. The FRO judge made no definitive finding as to whether the mother's testimony about her efforts to obtain assistance, and her reasons for not taking action sooner, were credible. Instead, the judge stated that he had accepted "everything that the plaintiff says at this particular time in a light most favorable to the plaintiff for the purposes of . . . determining whether or not there's jurisdiction."

Having approached the evidence in this fashion, the judge ruled that New Jersey has no jurisdiction over the children as of December 2013 because of the extensive period of over five and half years that they had resided in Ghana. The FRO judge rejected the mother's argument that the children's absence has been only "temporary" within the meaning of the UCCJEA. The judge also rejected the mother's assertion of emergency jurisdiction founded upon the father's act of domestic violence against her.

The mother now appeals, arguing that the trial court erred in declining jurisdiction. She requests a remand for a hearing in the Family Part on custody, demanding that the father be ordered to bring the children back for a custody hearing pursuant to N.J.S.A. 2A:34-74. The father has not filed a brief or participated in the appeal.5

Since Ghana is not a signatory party to the Hague Convention,6 the jurisdictional issues before us appear to be confined to the terms of the UCCJEA. De Silva v. Pitts, 481 F.3d 1279, 1284 (10th Cir. 2007) ("If a child is taken from a signatory country and is retained in a non-signatory country, it appears that there is no remedy under either [ICARA] or the Hague Convention."); Ogawa v. Ogawa, 221 P.3d 699, 706 (Nev. 2009) (stating that, although the various remedies under the Hague Convention were unavailable because the child was brought to a non-signatory country, the district court, with proper jurisdiction, could order the children's return under the state's UCCJEA). The UCCJEA provides, in pertinent part, that

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[.]

[N.J.S.A. 2A:34-65(a).]

"'Home state' [under the UCCJEA] means 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." N.J.S.A. 2A:34-54. "A period of temporary absence of any of the mentioned persons is part of the period." Ibid. In considering whether a child's absence is temporary under the UCCJEA, courts have weighed

(1) the parent's purpose in removing the child from the state, rather than the length of the absence; (2) whether the parent remaining in the claimed home state believed the absence to be merely temporary; (3) whether the absence was of indefinite duration; and (4) the totality of the circumstances surrounding the child's absence.

[Sajjad v. Cheema, 428 N.J. Super. 160, 173 (App. Div. 2012) (citations omitted).]

The mother argues, in this regard, that the father's allegedly wrongful removal of the children to Ghana supposedly without her own consent comprises a temporary absence.7

The FRO judge made no finding regarding whether the children's stay in Ghana was a temporary absence. Instead, he concluded that, even viewing the facts in a light most favorable to the mother, she simply waited too long to take action. The judge invoked in this regard general principles of laches.

The equitable principles of laches are not themselves a basis for denying jurisdiction under the UCCJEA. Rather, the jurisdictional issue under the UCCJEA turns on whether the children's five-year stay in Ghana can be characterized as "a temporary absence." N.J.S.A. 2A:34-54. Delay by a parent in seeking relief can be relevant to determining whether "the parent remaining in the claimed home state believed the absence to be merely temporary," to whether the parent acquiesced or consented to their absence, and to "the totality of the circumstances surrounding the child's absence." Sajjad, supra, 428 N.J. Super. at 173. However, the mother raised several other allegations relevant to those determinations, including that she believed the absence was temporary, that she objected and did not consent to a longer absence, that she was prevented from seeking relief by domestic violence, and that she did make efforts to obtain relief. If all those allegations were true, we could not say that the passage of time alone is a sufficient basis for finding that the children's absence was not temporary.

Unfortunately, the trial court did not make any finding on whether any of the mother's allegations were true. The limited record developed here at the end of the FRO hearing is insufficient for us to review the trial court's jurisdictional ruling in light of the various governing factors and standards under the UCCJEA.

We cannot tell from the present record, for example, whether the father inflicted any violence upon the mother after the children were removed in 2008 and before the September 2013 punching incident. We also cannot discern whether those alleged incidents of violence or intimidation reasonably explained her failure to seek a custody order sooner because of fear or intimidation. Nor can we tell if the mother's successive miscarriages affected her health significantly or impeded her ability to or willingness to launch an adversarial proceeding against the father.

In addition, the trial court made no finding as to whether the father removed the children from their residence to Ghana under false pretenses, a consideration which also could bear significantly upon the jurisdictional analysis. See generally F.H.U. v. A.C.U., 427 N.J. Super. 354, 383 (App. Div.) (analogously treating a father's deceptive removal of a child from another jurisdiction to another location as a basis for denying "home state" status), certif. denied, 212 N.J. 198 (2012). The record is also vague about whether the father actually made any false assurances to the mother between 2008 and 2013 that the children were going to be returned to New Jersey on his next trip from Ghana.

As a related open question, there was no finding made as to whether the mother's inaction after the children were not returned to New Jersey amounted to her acquiescence or consent under the statute. See generally N.J.S.A. 2A:34-72(a)(1) (generally recognizing principles of acquiescence under the UCCJEA); see also Walker v. Walker, 701 F.3d 1110, 1122-23 (7th Cir. 2012) (describing the contours of the acquiescence and consent defenses under the Hague Convention), cert. denied, 133 S. Ct. 1729, 185 L. Ed. 2d 787 (2013).

Our review of the application of the UCCJEA here is further hampered by the absence of any clear and definitive credibility findings by the trial court concerning the mother's testimony about why she delayed in pursuing assistance, and about the steps she allegedly took in going to various courts and seeking help from a humanitarian organization before the fall of 2013. The credibility of her testimony on those assertions, or the lack thereof, could be significant in an analysis of "home state" and "temporary absence" issues.

The mother argues that Ghana cannot have jurisdiction and cannot be the children's home state because no "parent or person acting as a parent continues to live" there. N.J.S.A. 2A:34-65(a)(1). However, it is hard to believe that some relative in Ghana is not currently acting as the girls' parent. Given that the children left New Jersey over six years ago when they were then respectively four and two years old, it is also unclear that they "have a significant connection with this State" or that "substantial evidence is available in this State concerning the child's care, protection, training and personal relationships." N.J.S.A. 2A:34-65(a)(2). In any event, these matters and the other statutory issues we have already identified must be explored more deeply, informed by a fuller record.8

We are mindful that the abbreviated nature of the jurisdictional proofs and of the trial court's findings may well be attributable to the fact that the UCCJEA phase of the case occurred at the tail end of an FRO proceeding. Moreover, one litigant was unrepresented at that hearing, and the other litigant was coping with translation challenges. We by no means suggest that the FRO judge was faced with an easy task in adjudicating these important jurisdictional issues. Nevertheless, because the welfare of children is at stake here, we are loathe to adjudicate the appeal in its present form based on the existing incomplete and ambiguous record.

Because of the inadequate record and the lack of critical credibility findings, we remand this matter to the Family Part for the court to hold a further evidentiary hearing.9 At the conclusion of that hearing, the court shall make specific factual determinations, including credibility findings, addressing whether the children's absence was temporary under the statutory criteria and thus whether there is jurisdiction in this State. Based on that fuller record, the court should reexamine the "totality of the circumstances." Sajjad, supra, 428 N.J. Super. at 173.

The trial court shall not require that the children be brought to New Jersey for the jurisdictional hearing. Instead, the question of whether the children need to be brought here from Ghana, even assuming an enforceable order could be crafted that would be honored in that country,10 must abide resolution of the question of whether this State has jurisdiction over these minors.

There is one aspect of the mother's appeal that can be resolved at this time: the trial court's denial of emergency jurisdiction. Under the UCCJEA, "[a] court of this State has temporary emergency jurisdiction if the child is present in this State and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse." N.J.S.A. 2A:34-68(a).

Although the children were present in New Jersey at the initial hearing in October 2013, and the court was persuaded that the mother had preliminarily shown that she had been subjected to physical abuse, we agree with the initial judge that the mother nevertheless failed to demonstrate that an emergency order was necessary to protect the children. In any event, the children's return to Ghana before the second hearing in December 2013 prevented the FRO judge from exercising emergency jurisdiction. We therefore affirm that discrete aspect of the trial court's rulings.

Remanded for further proceedings consistent with this opinion. We do not retain appellate jurisdiction. If either party who is aggrieved by the outcome of the remand hearing desires further appellate review, he or she must file a new appeal.

1 Because the jurisdictional and custody issues before us arise out of domestic violence proceedings that resulted in the issuance of a final restraining order, we shall use initials for the parties.

2 We were advised at oral argument on the appeal that this pregnancy resulted in the birth of a third child. That child is not a subject of this case.

3 We were advised by counsel at oral argument on the appeal that the children have remained in Ghana since they returned there in 2013, and that the mother has not traveled there to see them.

4 We are not aware of any other cases involving these parties in the Family Part's "FM" dissolution or "FD" non-dissolution dockets.

5 Because the father did not file a brief, he was ineligible to participate in the telephonic appellate oral argument. R. 2:11-1(b)(3).

6 In the United States, the Hague Convention is implemented by the International Child Abduction Remedies Act, 22 U.S.C.A. 9001 to 9011 ("ICARA").

7 Cf. N.J.S.A. 9:2-2 (requiring the consent of both parents to remove a child "[w]hen the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits").

8 We also note that the trial court did not make any specific findings under N.J.S.A. 2A:34-57. As may be relevant here, that portion of the UCCJEA states that "[a] court of this State shall treat a foreign country as if it were a state of the United States for the purpose of applying [N.J.S.A. 2A:34-53 to -54] of this act if the foreign court gives notice and an opportunity to be heard to all parties before making child custody determinations." Such an inquiry is potentially relevant under N.J.S.A. 2A:34-65(a)(4) in the event that no other American state has jurisdiction over the children in which case New Jersey may have jurisdiction, in essence, by default.

9 As there is an FRO in place preventing contact between the parties, and the father's current whereabouts may not be certain, we instruct the Family Part to make special efforts to assure that the father receives actual notice of the remand hearing.

10 At oral argument on the appeal, counsel for the mother expressed a belief that no court in Ghana has issued a custody order. That too should be verified on remand.