New Jersey Family Law

NEW JERSEY DIVORCE : CHILD RELOCATION

The father opposed the application of the mother to relocate to North Carolina with the parties' child, claiming she manipulated the intent of Baures by first settling the New Jersey divorce, and immediately thereafter filing for removal, depriving him of the opportunity to contest custody. When a removal request comes shortly after the divorce, and the material facts were known at the time of the New Jersey judgment, a party opposing removal is be entitled to contest custody. In effect, where the intent of Baures has been manipulated, the party opposing removal may be restored to the position held prior to divorce.  Shea v. Shea, New Jersey Ch. Div., Ocean Cy. (Millard, J.S.C.), March 17, 2006

NEW JERSEY DIVORCE : INTERNATIONAL CUSTODY

On the mother's appeal, the circuit panel reverses the District Court judge's grant of the application of the father for the return of his daughter to Argentina pursuant to the Hague Convention. On remand, the trial judge must explore: (1) the custody law of Argentina; (2) the terms of the parties' New Jersey custody agreement; (3) whether that agreement is enforceable under Argentine law; and (4) whether the father has -- either under the agreement or Argentine law -- custody rights or mere rights of access, and whether he was validly exercising those rights at the time the child was removed.  In Re Application of Adan, etc., ___F. 3d ___ (3d. Cir. 2006); February 13, 2006

NEW JERSEY DIVORCE CUSTODY : IN-STATE MOVE

Order permitting the mother to move from Montgomery Township to Manalapan Township and increasing the father's visitation by a weekend per month is affirmed. The parties' children attended Montgomery Township schools, and the mother, who was the parent of primary residence, sought to move closer to her family. The trial court's analysis of the Baures factors was "unassailable," even though it exceeded what was legally required because the move was in-state. Under Schulze, the Baures factors had to be considered to determine whether custody and parenting time should be modified. The trial court correctly concluded that the father should have additional visitation.   Vetri v. Vetri, New Jersey App. Div., December 1, 2005

New Jersey Child Removal

Reversing the denial of the New Jersey father's petition for the return of his child from the United States to Australia under the Hague Convention, the appellate court holds that it was error to find that the father consented to the removal or retention of the child under article 13(a) of the Convention, thereby defeating his claim for return.   Baxter v. Baxter, United States Court of Appeals, 3d. Cir., September 16, 2005

Hague Convention

Federal courts won't usually hear New Jersey divorce matters, so this case was initially rejected. However, this was a mistake. Here, the facts involved federal statutes under the international Hague Convention. Because these claims were not raised in the pending New Jersey state court custody action, the federal court's involvement would not have interfered with the state court proceedings. Since federal courts are explicitly granted jurisdiction to determine custody disputes under the Hague Convention, the lower court's dismissal is reversed.  Yang v. Tsui, ___ F.3d.___ ,(3d Cir. 2005), August 2, 2005.

Sealing The Record

The mother wants to relocate with the children from New Jersey to live with her parents in South Carolina. The father claims that excessive drinking by his wife's family puts the children at risk. Balancing the public interest in an open judicial system and the need to protect private interests, the Court finds good cause has not been shown and denies the motion brought by the grandparents, requesting that the case be sealed pursuant to Rule 5:3-2(b) because the allegations of the defendant, their son-in-law, might harm their reputations.  Smith v. Smith, ___N.J. Super.___ (Ch. Div 2005); Chancery Div. Mercer Cy. (Sabatino, J.S.C.), June 18, 2005

New Jersey Divorce : International Child Abduction

In determining a child's habitual residence under the Hague Convention on the Civil Aspects of International Child Abduction, a court should first inquire into the shared intent of the parents to fix the child's residence, and then inquire whether the evidence unequivocally establishes that the child has acclimatized to the new location. Gitter v. Gitter, ___F. 3d___ (2d Cir. 2005) http://caselaw.lp.findlaw.com/data2/circs/2nd/039299p.pdf; January 5, 2005.