New Jersey Family Law

SOUTH ORANGE ESSEX COUNTY NEW JERSEY DIVORCE ATTORNEY

At the heart of "this sad case," which raises questions of international and federal law under the Hague Convention's Civil Aspects of International Child Abduction, is a custody battle over a young girl who has not seen either of her parents in years. Because it agrees with the skillful analysis of Judge Debevoise of the District Court, the circuit panel affirms his denial and dismissal, with prejudice, of appellant's habeas corpus petition which sought to end her detention in the Ner Jersey (Bergen County) jail for violating a Superior Court civil contempt order.    Carrascosa v. McGuire, etc., et al., United States Circuit Court of Appeals, 3d Cir., April 1, 2008

WESTFIELD DIVORCE MEDIATION

In this international child custody dispute, where the mother is currently incarcerated for violating litigant's rights under Rule 1:10-3, New Jersey retains both personal and subject matter jurisdiction. There is no obligation under the Hague Convention to recognize the determinations made by the courts of Spain under principles of comity or res judicata. Further, the panel finds no basis to afford comity to the Ecclesiastic Tribunal of the Archbishopric of Valencia and no error in the refusal of the trial court to adjourn the custody trial pending the disposition of the mother's indictment for interference with child custody or the court-imposed sanctions. Innes v. Carrascosa, ___N.J. Super. ___ (App.Div. 2007); New Jersey App. Div., April 12, 2007

NEW JERSEY DIVORCE MEDIATION

Although the trial judge denied the Hong Kong-resident wife's motion to dismiss the New Jersey divorce complaint for lack of jurisdiction, finding that she had been properly served under the Hague Convention, he correctly dismissed the New Jersey-based husband's complaint based on forum non conveniens, since the parties' children attended school in Beijing, China, and much of the parties' property is located in Asia, where plaintiff himself travels extensively for business.   Zhang v. Cheng, New Jersey App. Div., August 8, 2006

NEW JERSEY DIVORCE MEDIATION : INTERNATIONAL CUSTODY

The mother alleged her ex-husband wrongfully detained their daughter when she was 11. The District Court denied the petition, holding that there was no wrongful detention because the child's habitual residence was the United States. Mother appealed, arguing that the child habitually resided in Finland. Although this is a close case, the appellate court affirms. Prior to her retention, the daughter acclimatized to the U.S. From her perspective, there was a degree of settled purpose to remain in this country. The existence of shared parental intent to permit the girl to choose her country of residence bolsters this conclusion.    Karkkainen v. Kovalchuk, et al., United States Court of Appeals  [3d. Cir.], April 24, 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 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.

Hague Convention

Two more countries have joined the Hague Convention on Intercountry Adoption. Both Malta and San Marino should be added to the list, already including Australia, France, Germany, India, Switzerland, Mexico, Canada, Spain and many others. While the United States has signed the convention, it has not yet ratified it. Ratification is expected early in 2006. More information is available at the Hague Convention web site : http://www.hcch.net; Family Law Reporter, March 29, 2005

Which Parent Has Custody?

Where legal custody has not been determined by decree or statute, the parent having actual uncontested custody is to be regarded as having "legal custody" of the person concerned for purpose of determining that person's immigration status under 8 U.S.C. section 1432(a). Bagot v. Ashcroft, ___F.Supp. 3d.___(3d Cir. 2005), February 11, 2005. http://caselaw.lp.findlaw.com/data2/circs/3rd/042127p.pdf