In this case, Plaintiff claims that defendant previously threatened to leave the United States, go to Pakistan and leave plaintiff with no assets except those maintained in the United States. The court granted plaintiff’s request and ordered defendant to surrender his passport pursuant to Rule 4:51-1. See Permutter v. DeRose, 58 N.J. 5, 16 (1971); Tedards v. Auty, 232 N.J. Super. 541, 549 (App. Div. 1989).

In Matsumoto v. Matsumoto, the Court had the occasion to determine “whether the fugitive disentitlement doctrine should be applied to bar an appeal in a civil case . . . .” 171 N.J. 110, 110 (2002). The Court decided that

the fugitive disentitlement doctrine is an arrow in the judicial quiver that can be let loose in a criminal or civil case so long as the party’s fugitive status is sufficiently connected to the litigation in which the doctrine is sought to be invoked and so long as nothing less than dismissal will suffice.
. . . .
The inquiry is not whether the order flouted is criminal or civil, or whether the case in which the doctrine is sought to be invoked is criminal or civil. In our view, it is the flight or refusal to return in the face of judicial action that is the critical predicate to fugitive disentitlement.
. . . .
[T]he party against whom the doctrine is to be invoked must be a fugitive in a civil or criminal proceeding; his or her fugitive status must have a significant connection to the issue with respect to which the doctrine is sought to be invoked; invocation of the doctrine must be necessary to enforce the judgment of the court or to avoid prejudice to the other party caused by the adversary’s fugitive status; and invocation of the doctrine cannot be an excessive response.

[Id. at 128-29.]

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

The fugitive disentitlement doctrine originally appeared on NJ Family Issues on April 19, 2011.

Where a minor child’s “home state” pursuant to N.J.S.A. 2A:34-29-31 is New Jersey, pursuant to New Jersey Law, specifically N.J.S.A. 9:2-4 and N.J.S.A. 2C:13-4 as well as N.J.S.A. 2A:34-31.1 in aid of the application of Article 15 of the Hague Convention or the Civil Aspects of International Child Abduction, 25 October 1980, codified at 42 U.S.C. 11601 et seq., a parent’s continued unilateral retention and stated intent to refuse to return the minor child to the United States, may be considered “wrongful” in accordance with the applicable provisions of New Jersey.

As a general rule, the Hague Convention provides that a wrongfully removed or retained child must be returned. There are six exceptions. Article 13b requires a showing that there is a grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Article 20 requires a showing that the return of the child would not be permitted by fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms. 42 U.S.C. 11603(e)(2)(B). See also Mendez Lynch v. Mendez Lynch, 220 F. Supp.2d 1347, 1357-58 (M.D. Fla. 2002).

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

As a general rule, the Hague Convention provides that a wrongfully removed or retained child must be returned to the home state in the U.S. originally appeared on NJ Family Issues on February 22, 2011.

See my prior Blog Post: David Goldman’s efforts to be reunited with his son Sean.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

The latest in the GOLDMAN saga originally appeared on NJ Family Issues on February 22, 2011.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Safeguard against international kidnaping of your child originally appeared on NJ Family Issues on January 6, 2011.

Under the Uniform Child Custody Jurisdiction and Enforcement Act, N.J.S.A. 2A:34-53 to -95 (the UCCJEA), New Jersey is not the “home state” of a child who had not resided in New Jersey for six months prior to the initiation of the action. See N.J.S.A. 2A:34-54 (defining home state for purposes of the UCCJEA).

NOTE:My legal and mediation services are offered to Polish-speaking and other clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

Under the Uniform Child Custody Jurisdiction and Enforcement Act, New Jersey is not the home state of a child who had not resided in New Jersey for six months prior to the initiation of the action originally appeared on NJ Family Issues on June 16, 2010.

Under N.J.S.A. 9:2-2, a child cannot be removed from the State without consent “unless the court, upon cause shown, shall otherwise order.” To obtain a court order permitting removal,

the party seeking to move . . . should initially produce evidence to establish prima facie that
(1) there is a good faith reason for the move and
(2) that the move will not be inimical to the child’s interests.
Included within that prima facie case should be a visitation proposal.

[Baures v. Lewis, 167 N.J. 91, 118 (2001).]

Unlike the “rare de facto ‘shared parenting’ arrangement” involving joint legal and physical custody where “the removal application must be analyzed under the stricter change-of-custody test[,]” Barblock v. Barblock, 383 N.J. Super. 114, 121-22 (App. Div.) (citing O’Connor v. O’Connor, 349 N.J. Super. 381, 399-400 (App. Div. 2002)), certif. denied, 187 N.J. 81 (2006), where the movant is the residential custodian, “any sincere, good-faith reason will suffice,” and a custodial parent need not establish a “‘real advantage’ from the move.” Holder v. Polanski, 111 N.J. 344, 352-53 (1988); see also Baures, supra, 167 N.J. at 114. Recognizing “the custodial parent’s interest in self-determination,” Baures, supra, 167 N.J. at 97, the Baures Court noted that “relocation for employment purposes is common” and that “[o]n a personal level, people remarry and move away.” Id. at 96.

The Court in Baures established a twelve factor test to determine whether to approve a custodial parent’s removal of a child to an out-of-state location:

[I]n assessing whether to order removal, the court should look to the following factors relevant to the plaintiff’s burden of proving good faith and that the move will not be inimical to the child’s interest:
(1) the reasons given for the move;
(2) the reasons given for the opposition;
(3) the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;
(4) whether the child will receive educational, health and leisure opportunities at least equal to what is available here;
(5) any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;
(6) whether a visitation and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child;
(7) the likelihood that the custodial parent will continue to foster the child’s relationship with the non[-]custodial parent if the move is allowed;
(8) the effect of the move on extended family relationships here and in the new location;
(9) if the child is of age, his or her preference;
(10) whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;
(11) whether the non-custodial parent has the ability to relocate;
(12) any other factor bearing on the child’s interest.

[167 N.J. at 116-17.]

A prima facie showing is necessary before proceeding to a plenary hearing. Id. at 118. However,

The initial burden of the moving party is not a particularly onerous one. It will be met, for example, by a custodial parent who shows that he is seeking to move closer to a large extended family that can help him raise his child; that the child will have educational, health and leisure opportunities at least equal to that which is available here, and that he has thought out a visitation schedule that will allow the child to maintain his or her relationship with the non-custodial parent.

[Ibid.]

Once the movant establishes a prima facie case, the burden of going forward then shifts to the non-custodial parent, “who must produce evidence opposing the move as either not in good faith or inimical to the child’s interest.” Id. at 119; see also Barblock, supra, 383 N.J. Super. at 126. Thus, for example, a non-custodial parent must show “not just that the visitation will change, but that the change will negatively affect the child.” Baures, supra, 167 N.J. at 119. “Indeed, alterations in the visitation scheme when one party moves are inevitable and acceptable.” Id. at 117. Similarly, in order to show that the move is inimical to a child’s interest based on the effect on extended family relationships, the non-custodial parent would have to demonstrate not just that the child will see extended family less, but that moving away from extended family will negatively affect the child.

In reviewing the trial court’s determination in a removal action,

a reviewing court should uphold the factual findings undergirding the trial court’s decision if they are supported by adequate, substantial and credible evidence on the record. Even where the focus of the dispute is . . . alleged error in the trial judge’s evaluation of the underlying facts and their implications, and thus the traditional scope of review is expanded, we will nonetheless accord deference to the trial court’s findings unless they went so wide of the mark that a mistake must have been made. That deference is especially appropriate when the evidence is largely testimonial and involves questions of credibility.

[MacKinnon v. MacKinnon, 191 N.J. 240, 253-54 (internal quotations and citations omitted), stay denied, 551 U.S. 1177, 128 S. Ct. 7, 168 L. Ed. 2d 784 (2007).]

Moreover, “[b]ecause of the family courts’ special jurisdiction and expertise in family matters,” the appellate court accords substantial “deference to family court factfinding.” Cesare v. Cesare, 154 N.J. 394, 413 (1998).

While visitation is not an independent prong of a parent’s prima facie case, it is nevertheless “an important element of proof on the ultimate issue of whether the child’s interest will suffer from the move.” Baures, supra, 167 N.J. at 122.

“With the technology we have available such as computers and the internet, you can literally stay in touch and ‘see your family everyday’ via webcams, instant messaging, text messaging, text messages, and phone calls which are all excellent ways to stay in touch between live visits.” See, e.g., McCoy v. McCoy, 336 N.J. Super. 172, 182 (App. Div. 2001).

Submission of a custody plan/parenting time plan is required pursuant to Rule 5:8-5 if there are genuine and substantial issues concerning either custody, parenting time, or both. See also Luedtke v. Shobert, 342 N.J. Super. 202, 218 (App. Div. 2001) (custody plan required for hearing involving change in custody). Furthermore, as noted, this is not a removal case where “the parents truly share both legal and physical custody, [such that] an application by one parent to relocate and remove the residence of the child to an out-of-state location must be analyzed as an application for a change of custody[.]” O’Connor, supra, 349 N.J. Super. at 385.

Rule 5:8-1 requires referral to mediation of custody disputes, and if mediation is not successful, an investigation by the Family Division may be ordered.

Rule 5:3-3(a) allows the court in its discretion to order a mental health examination of any person under its jurisdiction.

Hoever, neither Rule 5:8-6 nor Rule 5:8-3 requires that the court order an initial determination by a mental health professional before interviewing the child or order a mental health professional to later evaluate the court’s interview.

Under Rule 5:8-6,

. . . As part of the custody hearing, the court may on its own motion or at the request of a litigant conduct an in camera interview with the child(ren). In the absence of good cause, the decision to conduct an interview shall be made before trial. . . . If the court elects to conduct an interview, it shall afford counsel the opportunity to submit questions for the court’s use during the interview and shall place on the record its reasons for not asking any question thus submitted. . . .

The mandated course is to afford the parties a timely opportunity for input.

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

A child cannot be removed from the State without consent, unless the court, upon cause shown, shall otherwise order originally appeared on NJ Family Issues on May 18, 2010.

[See my prior Blog Post]

This case presents a question of interpretation under the Hague Convention on the Civil Aspects of International Child Abduction (Convention), Oct. 24, 1980, T. I. A. S. No. 11670, S. Treaty Doc. No. 99–11. The United States is a contracting state to the Convention; and Congress has implemented its provisions through the International Child Abduction Remedies Act (ICARA), 102 Stat. 437, 42 U. S. C. §11601 et seq. The Convention provides that a child abducted in violation of “rights of custody” must be returned to the child’s country of habitual residence, unless certain exceptions apply. Art. 1, S. Treaty Doc. No. 99–11, at 7 (Treaty Doc.). The question is whether a parent has a “righ[t] of custody” by reason of that parent’s ne exeat right: the authority to consent before the other parent may take the child to another country.

The Convention was adopted in 1980 in response to the problem of international child abductions during domestic disputes. The Convention 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.” Art. 1, Treaty Doc., at 7.

The provisions of the Convention of most relevance at the outset of this discussion are as follows:

“Article 3: The removal or the retention of the child is to be considered wrongful where —

“a it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

“b at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

. . . . .

“Article 5: For the purposes of this Convention —

“a ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence;

“b ‘rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.

. . . . .

“Article 12: Where a child has been wrongfully removed or retained in terms of Article 3 . . . the authority concerned shall order the return of the child forthwith.” Id., at 7, 9.

The Convention’s central operating feature is the return remedy. When a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must “order the return of the child forthwith,” unless certain exceptions apply. See, e.g., Arts. 4, 12, ibid. A removal is “wrongful” where the child was removed in violation of “rights of custody.” The Convention defines “rights of custody” to “include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” Art. 5(a), id., at 7. A return remedy does not alter the pre-abduction allocation of custody rights but leaves custodial decisions to the courts of the country of habitual residence.Art. 19, id., at 11. The Convention also recognizes “rights of access,” but offers no return remedy for a breach ofthose rights. Arts. 5(b), 21, id., at 7, 11.

The United States has implemented the Convention through the ICARA. The statute authorizes a person who seeks a child’s return to file a petition in state or federal court and instructs that the court “shall decide the case in accordance with the Convention.” 42 U. S. C. §§11603(a), (b), (d). If the child in question has been “wrongfully removed or retained within the meaning of the Convention,” the child shall be “promptly returned,” unless an exception is applicable. §11601(a)(4).

The Convention recognizes that custody rights can be decreed jointly or alone, see Art. 3(a), Treaty Doc., at 7.

The Convention defines “rights of custody” to “include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” Art. 5(a), ibid.

The phrase “place of residence” encompasses the child’s country of residence, especially in light of the Convention’s explicit purpose to prevent wrongful removal across international borders. See Convention Preamble, Treaty Doc., at 7.

“[D]etermine” can mean “[t]o fix conclusively or authoritatively,” Webster’s New International Dictionary 711 (2d ed. 1954) (2d definition), but it can also mean “[t]o set bounds or limits to,” ibid. (1st definition).

The Convention’s protection of a parent’s custodial “right to determine the child’s place of residence” includes a ne exeat right.

The Convention protects rights of custody when “at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” Art. 3(b), Treaty Doc., at 7. A ne exeat right is by its nature inchoate and so has no operative force except when the other parent seeks to remove the child from the country. If that occurs, the parent can exercise the ne exeat right by declining consent to the exit or placing conditions to ensure the move will be in the child’s best interests. When one parent removes the child without seeking the ne exeat holder’s consent, it is an instance where the right would have been “exercised but for the removal or retention.” Ibid.

The Convention provides a return remedy when a parent takes a child across international borders in violation of a right of custody. The Convention provides no return remedy when a parent removes a child in violation of a right of access but requires contracting states “to promote the peaceful enjoyment of access rights.” Art. 21, id., at 11. For example, a court may force the custodial parent to pay the travel costs of visitation, see, e.g., Viragh v. Foldes, 415 Mass. 96, 109–111, 612 N. E. 2d 241, 249–250 (1993), or make other provisions for the noncustodial parent to visit his or her child, see §11603(b) (authorizing petitions to “secur[e] the effective exercise of rights of access to a child”). But unlike rights of access, ne exeat rights can only be honored with a return remedy because these rights depend on the child’s location being the country of habitual residence.

The Convention defines “rights of access” as “includ[ing] the right to take a child for a limited period of time to a place other than the child’s habitual residence,” Art. 5(b), Treaty Doc., at 7, and ICARA defines that same term as “visitation rights,” §11602(7). The joint right to decide a child’s country of residence is not even arguably a “right to take a child for a limited period of time” or a “visitation righ[t].” Reaching the commonsense conclusion that a ne exeat right does not fit these definitions of “rights of access” honors the Convention’s distinction between rights of access and rights ofcustody.

The Convention is based on the principle that the best interests of the child are well served when decisions regarding custody rights are made in the country of habitual residence. See Convention Preamble, Treaty Doc., at 7. Ordering a return remedy does not alter the existing allocation of custody rights, Art. 19, id., at 11, but does allow the courts of the home country to decide what is in the child’s best interests. It is the Convention’s premise that courts in contracting states will make this determination in a responsible manner.

While a parent possessing a ne exeat right has a right of custody and may seek a return remedy, a return order is not automatic. Return is not required if the abducting parent can establish that a Convention exception applies. One exception states return of the child is not required when “there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” Art. 13(b), Treaty Doc., at 10.

The Convention also allows courts to decline to order removal if the child objects, if the child has reached a sufficient “age and degree of maturity at which it is appropriate to take account of its views.” Art. 13(b), Treaty Doc., at 10.

See related Blog Post from the Scotus Blog.

See related Blog Post, published in the New Jersey Family Law blog.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Under the Hague Convention, a child abducted in violation of rights of custody must be returned to the child’s country of habitual residence, unless certain exceptions apply originally appeared on NJ Family Issues on May 18, 2010.

As a condition prerequisite to allowing a child to travel abroad for visits, the court may require the noncustodial parent to obtain an order from a court in the country where visits are to occur with terms identical to the U.S. custody order. Caveat: In some countries, it may not be possible to obtain such an order. Moreover, the foreign court may change the underlying order or ignore provisions that conflict with their internal laws. Also be aware that some countries lack the legal mechanisms to enforce even their own orders. E.g., Tichendorf v. Tichendorf, 321 N.W. 2d 405 (Minn. 1982) (affirmed trial court’s decision to permit father to visit with his son in Germany for three weeks in the summer, but remanded to trial court to include in the order requirements that father must give a letter of credit to mother for more than $10,000, furnish round-trip transportation for an adult to accompany the child to Germany, and obtain an order from an appropriate German court recognizing the exclusive jurisdiction of the American courts over custody and acknowledging a duty to enforce the mother’s right to custody).
[SOURCE: PARENTAL KIDNAPPING: PREVENTION AND REMEDIES, by Patricia M. Hoff, Esq., published by the American Bar Association.]

See also: THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION: A CURRICULUM FOR AMERICAN JUDGES AND LAWYERS, by Patricia M. Hoff, Esq., published by the American Bar Association.

See also: PARENTAL KIDNAPPING: PREVENTION AND REMEDIES, by Patricia M. Hoff, Esq., published by the American Bar Association.

See also: Family Abduction Prevention and Response, Revised by Patricia M. Hoff, Esq,, published by the National Center for Missing & Exploited Children.

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

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Mirror Image Order originally appeared on NJ Family Issues on March 16, 2010.

Issue: Whether a ne exeat order confers a right of custody to the non-custodial parent under the Hague Convention on International Child Abduction.

Read more about it HERE.

[See my next Blog Post.]

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

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HAGUE CONVENTION, CHILD ABDUCTION, NE EXEAT, DIVORCE, CHILD CUSTODY originally appeared on NJ Family Issues on January 5, 2010.

N.J.S.A. 2C:13-4(a) — Interference with Custody (including parenting time)
A person, including a parent, guardian or other lawful custodial commits the crime of interfering with custody if he (or she):

(1) Takes or detains a minor child in order to conceal him or her and thereby deprive the child’s parents, of custody or parenting time; or
(2) After being served with process or having actual knowledge of an action affecting the marriage or custody, but prior to the issuance of a temporary or final order determining custody or parenting time rights to a minor child, takes or conceals the child for the purpose of depriving the other parent of custody or parenting time, or to evade the court’s jurisdiction; or
(3) After being served with process or having actual knowledge of an action affecting the protective service needs of a minor child pursuant to Title 9 of the New Jersey Statutes in an action affecting custody, but prior to a temporary or final order determining custody rights, takes or conceals the child to evade the court’s jurisdiction; or
(4) After the issuance of a temporary or final order specifying custody or parenting time rights, takes or conceals a minor child from the other parent, guardian or lawful custodian in violation of the order.

Criminal Jury Charges — Chapter 13: Kidnapping and Related Offenses: INTERFERENCE WITH CUSTODY (N.J.S.A. 2C:13-4a(4))

New Jersey Rule of Court 5:3-7(a) — Custody or Parenting Time Orders
On finding that a party has violated an order respecting custody or parenting time, the court may order, in addition to the remedies provided by R. 1:10-3, any of the following remedies, either singly or in combination:

(1) compensatory time with the children;
(2) economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent’s failure to appear for scheduled visitation such as child care expenses incurred by the other parent;
(3) modification of transportation arrangements;
(4) pick-up and return of the children in a public place;
(5) counseling for the children or parents or any of them at the expense of the parent in violation of the order;
(6) temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children;
(7) participation by the parent in violation of the order in an approved community service program;
(8) incarceration, with or without work release;
(9) issuance of a warrant to be executed upon the further violation of the judgment or order; and
(10) any other appropriate equitable remedy.

See related News Story: Woman gets 14 years for taking daughter to Spain, refusing to return her to dad in Hasbrouck Heights, published by Kibret Markos in The Record.

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

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NEW JERSEY LAWS CONCERNING CUSTODY AND PARENTING TIME originally appeared on NJ Family Issues on December 26, 2009.