A.D.A v. R.J
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5287-18T3
A.D.A.,
Plaintiff-Respondent,
v.
R.J.,
Defendant-Appellant.
______________________________
Argued March 2, 2020 – Decided April 13, 2020
Before Judges Rothstadt and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FD-02-0765-19.
F. Thomas Sidoti argued the cause for appellant.
Richard F. Iglar argued the cause for respondent
(Skoloff & Wolfe, PC, attorneys; Richard F. Iglar and
Patrick T. Collins, on the brief).
PER CURIAM
In this international custody dispute, defendant R.J. appeals from the
Family Part's April 18, 2019 order, declining jurisdiction and enforcing a Qatari
order that compelled defendant to send her children back to their father, plaintiff
A.D.A., in Qatar.1 Defendant also appeals from the July 18, 2019 order, denying
her motion for reconsideration of the April 18, 2019 order. The parties' dispute
arose after defendant, a United States citizen, fled Qatar with her children due
to allegations of domestic violence. Once defendant arrived in New Jersey, she
filed a complaint under the Prevention of Domestic Violence Act (PDVA),
N.J.S.A. 2C:25-17 to -35, against plaintiff and obtained a temporary restraining
order (TRO). Plaintiff then initiated legal proceedings against defendant in
Qatar.2 After a Qatari court required defendant to return the parties' children to
Qatar, plaintiff filed this action seeking to enforce the Qatari order.
1
We use initials to protect the parties' privacy interests. See R. 1:38-3(d).
2
Qatar is not a signatory to
[t]he Hague Convention, a multilateral treaty with
seventy-nine contracting nations, [that] seeks "to secure
the prompt return of children wrongfully removed to or
retained in any Contracting State" and "to ensure that
rights of custody and of access under the law of one
Contracting State are effectively respected in the other
Contracting States."
A-5287-18T3
2
On appeal, defendant argues that the Qatari order should not have been
enforced because she was not properly notified of the Qatari proceedings, her
due process rights were violated, Qatari's own procedural requirements were not
followed, the order was not properly authenticated under the Uniform Child
Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -
95, Qatar does not consider the best interests standard in making custody
determinations, and the Family Part should have maintained emergent
jurisdiction and held a plenary hearing. We reverse the denial of
reconsideration, vacate the order compelling the return of the children, and
remand the matter for a plenary hearing as we conclude the parties' dispute
should not have been resolved based only upon conflicting written submissions.
The facts developed in the submissions made by the parties reveal that
plaintiff was born in Syria, lives in Qatar, and has a United States "Green Card."
Defendant was born in the United States, spent some time as a child in Jordan,
[MacKinnon v. MacKinnon, 191 N.J. 240, 246-47
(2007) (quoting Hague Convention on the Civil Aspects
of International Child Abduction, art. 1, Oct. 25, 1980,
T.I.A.S. No. 11,670, 1 343 U.N.T.S. 49);]
see also F.H.U. v. A.C.U., 427 N.J. Super. 354, 371-74 (App. Div. 2012)
(discussing the relationship between the Hague Convention and the International
Child Abduction Remedies Act, 22 U.S.C. §§ 9001 to 9011).
A-5287-18T3
3
but relocated with her family to the United States until she married plaintiff in
2011, and immediately thereafter moved to Qatar. The parties have two children
who were born in Qatar, a son born in 2012 and a daughter born in 2014.
Prior to the birth of the first child, defendant alleged that plaintiff started
to physically abuse her, which led to her leaving Qatar with plaintiff's
permission to visit her family in New Jersey. Defendant lived with her parents
for a few months before plaintiff flew to New Jersey and reconciled with
defendant. The two moved back to Qatar, where defendant then gave birth to
their son. A few months afterwards, the parties came back to the United States
to visit defendant's family. They then returned to Qatar and in March 2014
defendant gave birth to the parties' daughter.
In 2016, the parties and the children visited California and afterwards,
defendant traveled to New Jersey with the parties' children. While in New Jersey
and California, defendant had her son examined by doctors who diagnosed him
with autism and advised the parties that early intervention is crucial. According
to defendant, plaintiff had no intention of having their son treated. "Concerned
about the wellbeing of [her] children . . . and [her] own wellbeing, [defendant]
refused to go back to Qatar with [p]laintiff" and instead, stayed in California for
a bit and then flew back to New Jersey to stay with her parents. Plaintiff then
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4
allegedly threatened that he would punish defendant and take away her children
if she did not return to Qatar.
Defendant filed her first complaint for domestic violence in September
2016. It was not until eight months later that plaintiff reached out to defendant
in an attempt to reconcile with her. Defendant agreed and moved back to Qatar.
According to defendant, when she arrived back in Qatar, the abuse escalated.
Allegedly, on September 25, 2018, the parties had an argument that
escalated when plaintiff locked defendant in the dining room, picked up a chair,
threatened to hit defendant, chased defendant around the dining room, and
kicked and punched defendant. Defendant begged plaintiff to stop and at the
very least take their daughter out of the room. Plaintiff pushed their daughter
out of the room, continued to hit defendant, relocked her in the room, and took
defendant's phone and keys with him. The parties' daughter witnessed the entire
event, and plaintiff's parents were in the next room. The abuse resulted in there
being blood all over the bedroom floor.
Afterwards, defendant unsuccessfully attempted to escape through a
window. Later that day, plaintiff took defendant to the hospital, and he informed
the hospital employees that defendant fell, which caused her to bruise, swell,
and sustain lesions.
A-5287-18T3
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When defendant was able to leave her house, she secured assistance from
the United States Embassy in obtaining emergency passports for her and her
children. Defendant and her children arrived in the United States on November
5, 2018. Plaintiff made several attempts to contact defendant by phone and
email, but defendant ignored his communications.
On November 7, 2018, defendant filed her second domestic violence
complaint alleging that plaintiff committed the predicate acts of assault, criminal
restraint, false imprisonment, and harassment during the September 2018
incident in Qatar. Defendant also alleged past events of domestic violence from
2012, 2014, and 2015 that included descriptions of specific violent and abusive
behavior by plaintiff against defendant and on one occasion, against their
daughter. The Family Part issued a TRO restraining plaintiff from having any
contact with defendant and the children.
Soon afterwards, plaintiff initiated legal proceedings against defendant in
Qatar. On December 2, 2018, a Qatari court entered an order requiring the return
of the parties' children to Qatar pending further proceedings. Plaintiff sent a
letter attaching the order to defendant's attorney but did not include a copy of
the underlying complaint or petition containing the allegations he made against
defendant. A court hearing was scheduled in Qatar for December 19, 2018.
A-5287-18T3
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Defendant did not appear and did not return their children to Qatar. Because
defendant missed the hearing in Qatar, it was rescheduled to January 9, 2019. It
was once again rescheduled to January 31, 2019. Since defendant never
followed the Qatari order, on April 10, 2019, the Qatari court "decided to
compel . . . . [plaintiff to r]eturn the children under her custody . . . to their
father in Qatar pending the verdict on the lawsuit."
On January 22, 2019, plaintiff filed the complaint in this action seeking
the enforcement of the Qatari order and requiring the return of the parties'
children to Qatar. Plaintiff attached a copy of the Qatari order to his complaint
but again did not provide a copy of the underlying pleading, if any. In his
complaint, plaintiff argued that under the UCCJEA, Qatar is the children's home,
and New Jersey lacked jurisdiction to make a custody determination. He also
sought temporary parenting time in New Jersey.
Plaintiff also argued that the Qatari court order did
not conflict with the law of New Jersey, [did] not work
an injustice upon any citizen of New Jersey and [did]
not violate the public policy of New Jersey; indeed, it
is the very same order that a court of this State would
issue if presented with facts such as [the ones]
present[ed] here.
He further alleged that defendant's actions "represent the crimes of
[i]nterference with [c]ustody as defined by N.J.S.A. 2C:13-4(a)(1) . . . and
A-5287-18T3
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[k]idnapping as defined by N.J.S.A. 2C:13-1(b)(4)." Plaintiff sought to
"enjoin[] and restrain[]" defendant from further engaging in criminal activity,
which had the effect of "depriving [p]laintiff of the custody . . . and contact with
the parties' children." Last, defendant made a claim in equity.
Plaintiff also filed a motion to dismiss defendant's domestic violence
complaint for lack of jurisdiction, supported by his certification that disputed
defendant's allegations. According to plaintiff, he was a citizen and native of
Qatar. Plaintiff stated that he had no connection to New Jersey, and he would
never have visited New Jersey if he was not married to defendant. He further
argued that having a trial in New Jersey would be too difficult as most of the
witnesses he would need to subpoena in order to rebut defendant's claims lived
in Qatar.
Plaintiff denied the allegations of domestic violence and claimed that
defendant only alleged acts of domestic violence to "justify her abduction of
[their] children" to the United States consistent with her repeated desire to
relocate the family to New Jersey "to live in close proximity to [defendant's]
parents." Plaintiff stated that defendant was able to leave their house in Qatar
whenever she pleased. He further stated that defendant fled the country and
kidnapped their children in November 2018 as she was upset plaintiff would
A-5287-18T3
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reduce his financial support for defendant's family. As to the September 25,
2018 allegation of domestic violence, plaintiff admitted that defendant was
injured, but claimed the injury was unrelated to domestic violence. Instead,
plaintiff insisted that defendant simply fell, causing her to swell, but denied
there was any broken skin or blood.
Defendant and counsel for both parties appeared before a Family Part
judge on March 20, 2019, at which time the judge rescheduled the matter to
April 18, 2019, directed defendant to file a brief by April 9, 2019, and plaintiff
to file a reply by April 15, 2019. The judge also noted that appearances of the
parties could be waived. Both parties filed their respective briefs on time.
The trial judge rendered his decision on the record on April 18, 2019 ,
without hearing oral argument. The judge noted that he was not taking any
testimony, and his decision relied upon the parties' certifications and the briefs.
He stated that he could not "make the finding that the . . . Qatari court would not
do what was in the best interest[s] of the children." Relying on the UCCJEA,
the judge held that it was "clear that Qatar was the residence of the children for
most of their lives and at least six months prior to the removal of them to [the]
United States in November . . . 2018." He found "the children were . . . habitual
A-5287-18T3
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residents of Qatar," defendant never sought leave from a Qatari court to bring
the children to New Jersey and did not get consent from plaintiff.
The judge concluded that New Jersey did not have jurisdiction to consider
the issue, and the Qatari orders requiring the return of the children for further
proceedings must be followed. As a result, the judge removed the children as
protected parties from the TRO. The TRO was extended for defendant. The
judge entered an order memorializing his decision the same day.
Defendant filed a motion for reconsideration of the judge's April 18, 2019
order on May 8, 2019. In her motion, defendant argued that Qatari law fails to
consider the best interests of a child, "violates New Jersey public policy as well
[as] fundamental principles of human rights," she was not properly served or
notified of the Qatari action, and her due process rights were violated. In support
of her motion, defendant filed a certification of Abed Awad, a New Jersey
attorney offered as an expert in Islamic/Qatari law. Awad provided his detailed
opinion of Qatari law and how custody disputes in Qatar do not advance the best
interests of the children, but instead considers religious and cultural factors that
primarily favor the father. He also addressed how defendant was not properly
served with process under that country's laws, after only being able to review
A-5287-18T3
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the Qatari orders. Awad also explained that a Qatari court would not grant
comity to a New Jersey judgment as it would be against its public policy.
In his opposition to defendant's motion, plaintiff requested that the judge
memorialize his April 18, 2019 decision that New Jersey did not have
jurisdiction to hear the matter. He also asked for the return of the children and
that the transfer not violate the TRO that was still in effect.
Plaintiff also filed a certification of his own expert, Alaa Ibrahim, who
stated that he practiced Qatari law and explained in detail why he disagreed with
Awad's findings and conclusions. Specifically, Ibrahim disagreed with Awad's
conclusions regarding women's rights under Qatari law and that Qatar does not
consider the best interests of a child in custody disputes. In support of his
opinions, Ibrahim cited to specific sections of Qatari law that expressed its
concern for a child's best interest and those that addressed protections available
to women against domestic violence. In relation to service of process, Ibrahim
explained why he concluded that service of the orders constituted valid service
of process.
Defendant filed a reply certification from Awad that explained why he
believed Ibrahim's opinions did not properly explain Qatari law, noting that
Ibrahim completely ignored certain articles that guaranteed custodial rights to
A-5287-18T3
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men only and denied various rights to a mother who loses custody. Awad
explained that "the custody law[s] of Qatar [were] not in substantial conformity
with the American jurisprudence of best interests of the child." As to service of
process, Awad argued that Ibrahim did not cite to any specific Qatari laws on
civil procedure and incorrectly concluded that attaching the order to plaintiff's
complaint in this action was sufficient for service. In relation to domestic
violence, Awad contended that the key components of domestic violence laws,
"standard of proof and the recognition of the cycle of domestic violence," are
not considered by Qatar.
On July 18, 2019, the judge considered the parties' oral arguments and
denied the motion, affirming his earlier decision for reasons he placed on the
record that day. In his decision, the judge cited to an unpublished California
appellate opinion that he found persuasive albeit not precedential and concluded
again that Qatar had jurisdiction to determine the custody issues. In reaching
his decision, the judge did not find that one expert was more persuasive than the
other, and, in any event, concluded that those issues were not appropriate on the
motion for reconsideration and should have been brought previously. As to the
Qatari orders, the judge found that defendant had an opportunity to address the
orders in Qatar and that she was aware of the proceedings.
A-5287-18T3
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Defense counsel questioned the judge about whether he was "finding that
notice requirements under . . . UCCJEA and due process requirements [were]
satisfied when a litigant [was] just given the equivalent of [New Jersey's] court
notice time and date for a hearing, but not served with any of the pleadings." In
response, the judge stated that he was "not going to make that bite at that broad
apple right there. What [he was] finding [was] that . . . plaintiff was aware of
these [proceedings] and could have chosen to participate in them." The judge
agreed to issue a stay of his order pending appeal and the parties thereafter
agreed that pending the appeal, "plaintiff may have electronic communication
or telephonic communication with the children and not be deemed in violation
of the restraining order." The judge entered an order memorializing his decision
that day and issued a stay pending appeal. This appeal followed.
At the outset, we acknowledge that our review of a Family Part judge's
determination in custody and parenting time matters is limited. "Family Part
judges are frequently called upon to make difficult and sensitive decisions
regarding the safety and well-being of children." Hand v. Hand, 391 N.J. Super.
102, 111 (App. Div. 2007). "[B]ecause of the family courts' special jurisdiction
and expertise in family matters, [we] . . . accord deference to family court
factfinding." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343
A-5287-18T3
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(2010) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)). Our narrow review
is based upon that fact "we have 'invest[ed] the family court with broad
discretion because of its specialized knowledge and experience in matters
involving parental relationships and the best interests of children.'" N.J. Div. of
Child Prot. & Permanency v. A.B., 231 N.J. 354, 365 (2017) (alteration in
original) (quoting N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420,
427 (2012)). "[W]e defer to [F]amily [P]art judges 'unless they are so wide of
the mark that our intervention is required to avert an injustice.'" Ibid. (quoting
F.M., 211 N.J. at 427). However, "[w]e owe no special deference to the trial
judge's legal determinations." Slawinski v. Nicholas, 448 N.J. Super. 25, 32
(App. Div. 2016). "Notwithstanding our general deference to Family Part
decisions, we are compelled to reverse when the court does not apply the
governing legal standards." Ibid. (citation omitted).
We conclude from our review that the Family Part judge did not follow
the correct legal standard when determining the issues in this dispute over
jurisdiction. In this international custody dispute, the nature of the conflicting
proofs required that the judge conduct a plenary hearing and issue a detailed
statement of reasons explaining his decision.
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In Sajjad v. Cheema, 428 N.J. Super. 160 (App. Div. 2012), we described
a Family Part judge's obligation under the UCCJEA when confronted with an
international custody dispute. In discussing the Act, we stated the following:
The UCCJEA governs the determination of subject
matter jurisdiction in interstate, as well as international,
custody disputes. The UCCJEA was enacted in an
effort "to avoid jurisdictional competition and conflict"
between jurisdictions in favor of "cooperation with
courts of other states [or other countries] as necessary
to ensure that custody determinations are made in the
state that can best decide the case." When confronted
with a child custody complaint involving competing
interstate or international jurisdictional claims, the
Family Part must examine and follow the multi-step
procedure outlined in the UCCJEA.
When undertaking a jurisdictional analysis, the
UCCJEA treats a foreign sovereign "as if it were a state
of the United States . . . if the foreign court gives notice
and an opportunity to be heard to all parties before
making child custody determinations." N.J.S.A.
2A:34-57(a). One exception obviating compliance with
the UCCJEA occurs "if the child custody law of a
foreign country violates fundamental principles of
human rights or does not base custody decisions on
evaluation of the best interests of the child." N.J.S.A.
2A:34-57(c).
[Id. at 170-71 (alterations in original) (citations
omitted);]
see also Ali v. Ali, 279 N.J. Super. 154, 164-67 (App. Div. 1994) (determining
that the enforcement of a foreign order was not possible since the plaintiff failed
A-5287-18T3
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to file a certified copy of the foreign country's order for divorce; only attached
a copy of the notice for divorce to his complaint; the plaintiff was never
personally served the ex parte order; it was unknown whether the best interests
of the child was considered; and defendant did not have actual knowledge "to
satisfy due process considerations, [which] cannot supplant the requirement of
personal service").
As we also stated, "[w]henever 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, 428 N.J. Super.
at 175. The "custody dispute must be subject to the analysis outlined in the
UCCJEA," which "[m]ore often than not, . . . requires a plenary hearing." Ibid.
Disputed issues "can only be fleshed out if the parties' proofs are tested during
an evidentiary hearing." Id. at 178. After a hearing, if the judge determines that
"the child custody law of a foreign country violates fundamental principles of
human rights or does not base custody decisions on evaluation of the best
interests of the child," the judge should not follow the UCCJEA. Id. at 171
(quoting N.J.S.A. 2A:34-57(c)); see Ivaldi v. Ivaldi, 147 N.J. 190, 205-06 (1996)
("If the [foreign] court denies the [parent] procedural due process or refuses to
A-5287-18T3
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consider [the child's] best interests, the Family Part may then refuse to enforce
the [foreign] decree."); see also UCCJEA § 105, Commissioner's Official
Comment, 9 U.L.A. 662 (2018).
We recognize that, as the judge concluded here, normally a motion for
reconsideration "does not provide the litigant with an opportunity to raise new
legal issues that were not presented to the court in the underlying motion ."
Medina v. Pitta, 442 N.J. Super. 1, 18 (App. Div. 2015). However, in light of
the summary procedure pursued at the original hearing on plaintiff's complaint
and considering the fact that the subject matter here involves not only the
question of jurisdiction but also the best interests of the children and allegations
of physical abuse, simply rejecting the conflicting information on
reconsideration was a mistaken exercise of discretion. The decision to not
conduct a plenary hearing and to not make the required findings "inexplicably
departed from established policies, or rested on an impermissible basis," which
warranted reconsideration. Milne v. Goldenberg, 428 N.J. Super. 184, 197
(App. Div. 2012) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571
(2002)).
At the plenary hearing on remand, the parties must present evidence
addressing each of the following issues, using the services of an approved court
A-5287-18T3
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interpreter and allowing appearances by phone, if necessary: (1) whether the
service of the Qatari orders without the underlying complaint or petition
satisfied the applicable due process requirements 3; (2) whether a Qatari court
will render a custody determination in the best interests of the children; (3) and
whether the Family Part should exercise emergency jurisdiction in light of the
allegations of abuse to defendant and either of the parties' children. See N.J.S.A.
2A:34-68(a) ("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." (Emphasis
added)); see also Benda v. Benda, 236 N.J. Super. 365, 368 (App. Div. 1989)
(demonstrating that a plenary hearing is typically needed to resolve a dispute
about emergency jurisdiction). Thereafter, the judge shall issue detailed written
or oral findings of fact and conclusions of law consistent with Rule 1:7-4.
3
"[A]t a minimum, due process requires that a party in a judicial hearing receive
'notice defining the issues and an adequate opportunity to prepare and respond.'"
J.D. v. M.D.F., 207 N.J. 458, 478 (2011) (emphasis added) (quoting H.E.S. v.
J.C.S., 175 N.J. 309, 321 (2003)); see also N.J.S.A. 2A:34-57(a) ("A court of
this State shall treat a foreign country as if it were a state of the United St ates
for the purpose of applying articles 1 and 2 of this act if the foreign court gives
notice and an opportunity to be heard to all parties before making child custody
determinations." (Emphasis added)).
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The order denying consideration is reversed, the order directing the
children be returned to Qatar is vacated, and the matter is remanded for a plenary
hearing to be held within sixty days.4
Reversed in part, vacated in part, and remanded for further proceedings
consistent with our opinion. We do not retain jurisdiction.
4
We recognize that at present, most in-court appearances have been suspended
due to a pandemic. We leave it to the trial judge's discretion to complete the
remand proceedings through virtual or telephonic conferencing, or to wait to
complete the remand hearing within sixty days of the resumption of in court
appearances.
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