A.S. v. R.L.M.

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-5574-15T4

A.S.,

        Plaintiff-Respondent,

v.

R.L.M.,

     Defendant-Appellant.
___________________________

              Argued January 11, 2018 – Decided March 19, 2018

              Before Judges Rothstadt and Gooden Brown.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Sussex County,
              Docket No. FD-19-0256-08.

              Scott E.       Becker     argued     the    cause    for
              appellant.

              A.S., respondent, argued the cause pro se.

PER CURIAM

        Defendant (father) appeals from the August 4, 2016 Family

Part order denying his application for a change in custody of his

then eight-year-old son, and relinquishing jurisdiction to the
state of Georgia under the Uniform Child Custody Jurisdiction and

Enforcement Act (UCCJEA), 
N.J.S.A. 2A:34-53 to -95.             We affirm.

     We glean the following facts from the record.                 Plaintiff

(mother) and defendant are unmarried.         They have a son, A.M., born

in October 2007.      On March 27, 2015, a Family Part judge granted

plaintiff's application to relocate to Georgia with A.M., subject

to the submission of "a detailed parenting plan proposal pursuant

to the mandates of Baures v. Lewis, 
167 N.J. 91 (2001)."1

     On   June   1,   2015,   the   parties   executed   a    Memorandum    of

Understanding (MOU) developed through the Sussex County Family

Court Mediation Program.       Under the MOU, both parties agreed to

"continue to share joint legal custody" of their son with plaintiff

designated as the parent of primary residence.               As to parenting

time, the parties agreed that defendant would have parenting time

"in New Jersey for the entirety of the summer recess except for

the first and last weeks" and "every Christmas holiday and recess"

with "[a]ny additional parenting time" to be "arranged by mutual

agreement."

     Additionally, a provision of the MOU entitled "Return to

Mediation[,]" specified:

                We agree that if any differences arise
           from this agreement, we will first attempt to

1
  Baures has since been overruled by Bisbing v. Bisbing, 
230 N.J. 309 (2017).

                                      2                              A-5574-15T4
           resolve these concerns amicably between
           ourselves. If we reach an impasse, we agree
           that we will attempt to resolve these issues
           through mediation, and understand that we may
           contact the Sussex County Family Mediation
           program before filing a motion for [c]ourt
           intervention. We agree to participate in any
           future mediation sessions with a good faith
           effort at resolution.

On June 22, 2015, Judge Michael Paul Wright incorporated the MOU

into a New Jersey Consent Order.

      On June 29, 2016, while A.M. was residing with defendant in

New Jersey for the summer, defendant filed an application for a

change of custody, seeking designation as the parent of primary

residence.     To support his application, defendant certified that

after plaintiff relocated to Georgia with their son, he was advised

that "plaintiff had been charged with DWI [in New Jersey] and had

gone to Georgia, in part, to obtain a driver['s] license in that

state."   According to defendant, the case remained open because

plaintiff never returned to New Jersey to resolve it.

      Defendant further certified that in March 2016, he learned

that "plaintiff was involved in a car accident with [A.M.] in the

car," and "plaintiff was charged with being under the influence

of   alcohol   at   the   time   of   the   accident   and   was   arrested."

According to defendant, "[a]side from the open cases in Georgia

and New Jersey, . . . plaintiff ha[d] at least one other DWI

conviction." Additionally, defendant alleged "[A.M.] ha[d] missed

                                       3                              A-5574-15T4
[twenty-seven] days of school and ha[d] been late to school on

[fifty] days during th[e] school year through April 27, 2016."

     Plaintiff opposed the application.            On August 4, 2016, Judge

Michael C. Gaus conducted a hearing during which plaintiff provided

sworn   testimony   denying     defendant's       allegations.       Plaintiff

acknowledged that she was in a car accident in Georgia on March

19, 2016 while A.M. was in the car, but denied drinking, having a

.24 blood alcohol reading, being charged with a drunk driving

violation,   or   having   to   go   to   court   in    connection   with   the

accident.    Plaintiff admitted she had been charged with DWI in New

Jersey in December 2015, but claimed she resolved the case by

entering a guilty plea and accepting a driver's license suspension.

     As to A.M.'s excessive school absences, plaintiff testified

that "[t]hey were excused because [A.M.] was sick," and she had

"doctor's notes" as proof.       She also attributed A.M.'s excessive

tardiness to "a problem with his stomach."             She explained that she

had to wait for him to "have a bowel movement" at home before

going to school, "because he [said] all the kids pee on the seat

and it's gross, and he can't hold it all day."

     Plaintiff testified she had family in Georgia who support her

and care for A.M.    She submitted A.M.'s current school records to

show how well A.M. was doing.        She claimed A.M. would not be safe

with defendant, as he had lost his driver's license "because of

                                      4                                A-5574-15T4
his three DWIs" and would not be able to transport A.M. "to the

doctor or anything like that."            According to plaintiff, while

"[defendant] was in jail for a year[,]" she cared for A.M. alone.

She also claimed defendant only paid child support "when he fe[lt]

like it."

     After considering the testimony and arguments of counsel,

Judge Gaus denied the application, determined that Georgia was

"clearly    the    more    appropriate    forum   and   jurisdiction"     for

adjudicating      "other   custody   issues   regarding   the   child,"   and

"cede[d] jurisdiction under the UCCJEA to the state of Georgia."

The judge noted "[t]his [was] at least the third application that's

been filed by . . . defendant since he signed the [MOU] . . . ."

and "entered into a consensual agreement."

                 Despite that, in the fall of 2015
            [defendant] made an emergent application
            seeking to have the child returned.      That
            application was denied by Judge Wright on
            October the 19th. He then made an additional
            emergent application on March the 29th in
            which he sought a transfer of physical
            custody.   That second one was based on the
            same incident that we are focusing on today
            with respect to the car accident of March the
            19th.


     According to Judge Gaus, in that second application, after

defendant indicated to Judge Wright that he was in contact with a

Georgia attorney but could not get a hearing date until the end


                                      5                             A-5574-15T4
of May, "Judge Wright denied even the entry of the order to show

cause" and "provided a statement of reasons" indicating "that as

far as he was concerned[,] Georgia had now become the home state

of the child under the [UCCJEA]."   Judge Wright explained "that

it was clearly more appropriate for future custody proceedings to

take place" in Georgia because "[t]he child had lived in Georgia

for more than six months" and there was no "basis for the [c]ourt

to exercise emergency jurisdiction here in New Jersey."

     According to Judge Gaus, following Judge Wright's ruling,

          defendant then waited from March 29 until June
          the 29th before he filed the application
          that's before the [c]ourt today. During that
          time, of course, the child came to stay with
          him for his summer parenting time. It is of
          note that he did not make the application
          until he physically had the child in his
          presence.

     Judge Gaus acknowledged that "[t]here were some issues that

are certainly of concern."

          However, the [c]ourt agrees with Judge Wright
          that these issues are more appropriately dealt
          with in the state of Georgia, which is now the
          home state of the child. The records about
          what actually happened on March 19[] are more
          easily dealt with down there.      The school
          records, perhaps witnesses from the school,
          are more appropriately dealt with down there.
          The doctor's records that would support or not
          support the claim of [plaintiff] that she had
          all kinds of excused absences and reasons for
          the child being tardy, having to do with his
          health needs are more easily produced and


                                6                          A-5574-15T4
          reviewed and people brought            to   court   to
          testify about them down there.

     Judge   Gaus     acknowledged       that,   based   on   defendant's

submissions, there were "a significant number of tardies [and]

absences[] in the child's report card for the fourth quarter of

the school year[.]"    However, since then, "he was only absent five

times and tardy once[.]"

               But more importantly, his grades during
          that marking period evidence a child who is
          doing exceedingly well . . . . [Plaintiff]
          also produced copies of two certificates
          issued for the child, one [of] which indicates
          that he earned all A's for the . . . third
          marking period, . . . and also he earned all
          A's for the first nine weeks of the school
          year. . . . [T]hat would also indicate a child
          who is doing well, and is well[-]adjusted.

     In rejecting defendant's application, the judge summarized

his reasoning thusly:

               In light of the fact that the [c]ourt
          finds that there is no emergent situation in
          place, in light of the fact that Georgia is
          now the home state of the child, in light of
          the fact that the father had consulted with
          counsel as early as March the 29th from
          Georgia, and the [c]ourt is certainly able to
          take judicial notice of the prior pleadings
          that he has filed in this case, and that is
          part of his underlying application, therefore
          it is certified to, he could have had himself
          a hearing in May in Georgia with the attorney
          that he had consulted with.     Instead[,] he
          wait[ed] until he ha[d] the child over the
          summer to make the application to change
          custody up here.


                                     7                             A-5574-15T4
The judge ordered defendant to arrange for A.M. to return to

Georgia "immediately" and denied defendant's application for a

stay.   This appeal followed.

     On appeal, defendant argues the judge erred by relinquishing

jurisdiction without a hearing.           According to defendant, if the

judge had "bothered to conduct a hearing, it clearly would have

shown that several of the factors militated toward the retention

of jurisdiction in . . . New Jersey."           We disagree.

     The UCCJEA dictates the circumstances under which New Jersey

courts have jurisdiction over child custody issues.                  Pursuant to


N.J.S.A. 2A:34-66(a), once a state renders an initial custody

determination,      that   state     acquires     "exclusive,         continuing

jurisdiction" over the custody dispute.          Here, New Jersey acquired

"exclusive, continuing jurisdiction" when Judge Wright entered the

June 22, 2015 consent order incorporating the MOU.

     However,       
N.J.S.A.   2A:34-66(a)(1)           and    (2)     delineate

circumstances that may divest a state of its jurisdiction.                      As

applicable here, under 
N.J.S.A. 2A:34-66(a)(1), New Jersey loses

"exclusive, continuing jurisdiction" if "a court of this State

determines   that    neither   the   child,     [nor]    the   child    and   one

parent . . . have a significant connection with this State and

that substantial evidence is no longer available in this State



                                      8                                  A-5574-15T4
concerning the child's care, protection, training, and personal

relationships."

    In Griffith v. Tressel, 
394 N.J. Super. 128, 146 (App. Div.

2007),   we    noted    that    "[t]he   question    whether   the    requisite

'significant connection' remains is fact[-]specific[,] and the

scenarios vary greatly" from case to case.             Generally, the focus

should be on the relationship between the child and the parent

remaining in the State with exclusive, continuing jurisdiction.

Id. at 145.        "When that relationship becomes too attenuated,

'exclusive, continuing jurisdiction' is lost."              Ibid.

    However, even if 
N.J.S.A. 2A:34-66(a)(1) does not warrant

relinquishing jurisdiction, a New Jersey court "may decline to

exercise its jurisdiction at any time" under 
N.J.S.A. 2A:34-71(a)

"if it determines that it is an inconvenient forum under the

circumstances     and    that   a   court    of   another   state    is   a   more

appropriate forum."       In making this determination, a court "shall

consider all relevant factors," including:

              (1) whether domestic violence has occurred and
              is likely to continue in the future and which
              state could best protect the parties and the
              child;

              (2) the length of time the child has resided
              outside this State;

              (3) the distance between the court in this
              State and the court in the state that would
              assume jurisdiction;

                                         9                                A-5574-15T4
             (4) the relative financial circumstances of
             the parties;

             (5) any agreement of the parties as to which
             state should assume jurisdiction;

             (6) the nature and location of the evidence
             required to resolve the pending litigation,
             including the testimony of the child;

             (7) the ability of the court of each state to
             decide the issue expeditiously and the
             procedures necessary to present the evidence;
             and

             (8) the familiarity of the court of each state
             with the facts and issues of the pending
             litigation.

             [N.J.S.A. 2A:34-71(b).]

Further, "[t]he issue of inconvenient forum may be raised upon the

court's own motion, request of another court or motion of a party,"


N.J.S.A. 2A:34-71(a), and "the court shall allow the parties to

submit information" pertinent to the determination.                   
N.J.S.A.

2A:34-71(b).

     We      review      the   Family   Part's    determination      regarding

continuing exclusive jurisdiction or declining jurisdiction in

favor   of    a   more    appropriate   forum    for   abuse   of   discretion.

Griffith, 
394 N.J. Super. at 148.               We review a "trial court's

interpretation of the law and the legal consequences that flow

from established facts" de novo.             Manalapan Realty, LP v. Twp.

Comm. of Manalapan, 
140 N.J. 366, 378 (1995).


                                        10                              A-5574-15T4
     Here, we are satisfied Judge Gaus properly applied the law

and clearly understood his obligation to analyze the applicable

factors contained in 
N.J.S.A. 2A:34-71(b).               The record amply

supports   the   judge's   decision    to   relinquish    jurisdiction    to

Georgia based on the facts as they existed at the time.          Contrary

to defendant's argument, the MOU provision that designated Sussex

County as the forum for resolving disputes was but one factor to

be considered and by no means a dispositive one.            "An agreement

between the parties cannot bind the courts of this state to accept

subject matter jurisdiction when not permitted by law."         Griffith,


394 N.J. Super. at 137 (citing Neger v. Neger, 
93 N.J. 15, 35

(1983)).   Moreover, in accordance with 
N.J.S.A. 2A:34-71(b), the

parties were afforded the opportunity to testify and submit proofs

pertinent to the jurisdictional issue.          Accordingly, we discern

no abuse of discretion, and we see no basis to overturn the judge's

determination.

     Affirmed.




                                  11                               A-5574-15T4