(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued November 4, 1996 -- Decided December 23, 1996
POLLOCK, J., writing for a unanimous Court.
This case primarily involves the question of whether, under the facts presented, New Jersey courts have
jurisdiction to consider an international child-custody dispute.
Jean Jacques Marcel Ivaldi and Lamia Khribeche Ivaldi were married on September 18, 1992, in Rabat,
Morocco. Jean Jacques is a citizen of the United States and France. Lamia is a Moroccan citizen. Lina Camille
Ivaldi was born in France on June 21, 1993.
In January 1994, Jean Jacques moved to New Jersey, where his parents operate a restaurant. A month
later, Lamia and Lina joined him. Marital difficulties followed, and Jean Jacques moved out of the marital
home.
On February 22, 1995, the parties--each represented by counsel--entered into a comprehensive separation
agreement. The agreement called for joint legal custody, with Lamia having physical custody of Lina. Under
the agreement, Lamia was permitted to take Lina to Morocco provided she abided by all of the terms of the
agreement. The agreement specifically stated that New Jersey law would govern its terms.
Within a week of signing the agreement, Lamia sent Lina to live with her parents in Morocco. Lamia
joined them a few weeks later. On April 27, 1995, Lamia filed a divorce action in Rabat, Morocco. On May
2, 1995, Jean Jacques filed a complaint in the Superior Court seeking, among other things, sole custody of Lina.
Lamia moved to dismiss the action in New Jersey.
The trial court denied the motion to dismiss, holding that although the Uniform Child Custody
Jurisdiction Act (Act) did not apply, the Family Part had "subject-matter" jurisdiction. The trial court found for
Jean Jacques, directing Lamia to return Lina to the United States. The Appellate Division stayed the trial court's
order and thereafter granted Lamia's motion for leave to appeal. On March 16, 1996, the Appellate Division
reversed the trial court, concluding that the record was barren of any evidence that Lamia had violated the
separation agreement by taking Lina to Morocco. The Appellate Division also held that the trial court did not
have subject-matter jurisdiction. It dismissed the complaint.
The Court granted Jean Jacques' petition for certification. At oral argument, counsel informed the
Court that the parties are participating in mediation in Morocco. Both parties are represented by counsel in
that proceeding, while Lamia is pro se before this Court.
HELD: The jurisdictional provisions of the Uniform Child Custody Jurisdiction Act (N.J.S.A. 2A:34-29 to -52)
vest the Family Part with subject-matter jurisdiction to determine an international child custody dispute. In light
of the circumstances of this case, the matter is remanded to the trial court to determine whether New Jersey or
Morocco provides a more appropriate forum.
1. Although at first glance the Act suggests that it applies to disputes between states of the United States,
section 51 of the Act clearly extends its application to the international arena. Read as a whole, the Act applies
to foreign countries as if they were states. International child-custody actions have become part of a global
society. (pp. 7-15)
2. The Court's construction conforms also with a proposed revision to the Act. The draft "Uniform Child
Custody Jurisdiction and Enforcement Act" explicitly states that its provisions apply to child custody proceedings
of other countries. (p. 15)
3. Under the Act, New Jersey was Lina's "home state" at the time Jean Jacques began this proceeding. (pp. 15-16)
4. The next question to be asked is whether New Jersey or Morocco is the more convenient forum for the
custody action. The forum question should be determined under the provisions of the Act and the matter is
remanded to the Family Part to make that determination. Under the Act, the interests of the child are critical
in determining which jurisdiction provides a more convenient forum. The Court encourages the Family Part to
communicate directly with the Moroccan court to obtain any information needed to determine whether New
Jersey or Morocco is the more convenient forum. (pp. 16-19)
5. Even if the Family Part dismisses this action, the dismissal will not preclude a New Jersey court from
subsequently reviewing the enforceability of a Moroccan custody decree. (p. 19)
6. Morocco is the only signatory to the new Hague Convention on Jurisdiction, Applicable Law, Recognition,
Enforcement and Co-operation In Respect of Parental Responsibility and Measures For the Protection of
Children. The delegates from the United States agreed on October 19, 1996, to present the new Convention to
this country's government. Although the Convention has not yet taken effect here, it can be noted that the
Convention seeks to assure that the best interest of the child is the primary consideration in all international
disputes involving children. (pp. 19-22)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Family
Part.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, GARIBALDI, STEIN, and COLEMAN join
in JUSTICE POLLOCK's opinion. JUSTICE O'HERN did not participate.
SUPREME COURT OF NEW JERSEY
A-
49 September Term 1996
JEAN JACQUES MARCEL IVALDI,
Plaintiff-Appellant,
v.
LAMIA KHRIBECHE IVALDI,
Defendant-Respondent.
Argued November 4, 1996 -- Decided December 23, 1996
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
288 N.J. Super. 575 (1996).
Patricia E. Apy argued the cause for
appellant (Paras, Apy & Reiss, attorneys).
Lamia Khribeche Ivaldi submitted a letter in
lieu of brief pro se.
The opinion of the court was delivered by
POLLOCK, J.
The primary issue is whether under the Uniform Child Custody
Jurisdiction Act, N.J.S.A. 2A:34-29 to -52 ("the Act" or "the
UCCJA"), New Jersey courts have subject-matter jurisdiction to
determine this international child-custody dispute. A second
issue is whether the courts of New Jersey provide a more
convenient forum to resolve the issue of custody.
Plaintiff, Jean Jacques Marcel Ivaldi ("the father"), and
defendant, Lamia Khribeche Ivaldi ("the mother"), are engaged in
matrimonial actions in Morocco and New Jersey. Each seeks a
divorce from the other and custody of the only child of their
marriage, Lina Camille Ivaldi ("Lina" or "the child").
In February 1995, the mother removed the child from New
Jersey, where the child had resided with both parents, to
Morocco. The mother then instituted a proceeding in Morocco for
divorce and custody of the child. Less than a week later, the
father filed this action in the Superior Court of New Jersey,
Family Part, seeking a divorce, equitable distribution, support,
and sole custody of the child. The Family Part denied the
mother's motion to dismiss the complaint.
The Appellate Division granted the mother's motion for leave
to appeal and reversed, holding that the Family Part did not have
subject-matter jurisdiction to entertain the father's claim for
custody.
288 N.J. Super. 575 (1996). It also held that
principles of international comity required deference to the
jurisdiction of the Moroccan court. Id. at 589. We granted the
father's petition for certification.
145 N.J. 372 (1996).
We hold that the jurisdictional provisions of the Act vest
the Family Part with subject-matter jurisdiction to determine
this custody dispute. We remand the matter to the Family Part
for a determination whether New Jersey or Morocco provides the
more appropriate forum. If the Family Part determines that
Morocco is the more convenient forum, it should dismiss the
custody claim without prejudice.
From the limited record, we gather the following facts. In 1990, the mother, a Moroccan citizen, and the father, a citizen of both the United States and France, met while studying hotel and restaurant management in Switzerland. On September 18, 1992, they were married in Rabat, Morocco. Following the wedding, the couple resided in France. The father asserts that the couple had a civil wedding ceremony in France. According to the mother, the Moroccan ceremony was both religious and civil. She states that the purpose of the French ceremony was to assuage the father's French relatives. Lina was born in France on June 21, 1993.
The parties dispute the subsequent facts. The mother asserts that in October 1993 the couple moved with Lina to Rabat, Morocco, where they remained until the end of January 1994. The father claims that before the family moved to New Jersey Lina visited, but did not reside, in Morocco.
In January 1994, the father moved to New Jersey, where his parents operate a restaurant. A month later, the mother and Lina joined him. Following their move to New Jersey, the couple experienced substantial marital difficulties. The father eventually moved into his parents' house in Flanders, Morris County.
On February 22, 1995, the mother and father, each represented by counsel, entered into a comprehensive separation agreement. The agreement specifically states that the parents
will share joint legal custody of Lina and that the mother will
have physical custody. Significantly, the agreement expressly
allows the mother, provided that she abides by all relevant terms
of the agreement, to leave the United States with Lina and to
reside in France or Morocco.
Under the agreement, the father is allowed twelve weeks of
visitation per year with Lina. The agreement further requires
the mother to permit Lina to travel to the country in which the
father resides. Finally, the parties agreed that New Jersey law
governs the terms of the agreement, and that they will
incorporate the agreement into any divorce judgment. The
agreement does not specify the jurisdiction in which any
matrimonial action, including one seeking custody of the child,
will proceed.
Within a week of signing the agreement, the mother sent Lina
to live with the mother's parents in Morocco. The mother joined
Lina a few weeks later.
On April 27, 1995, the mother filed an action for divorce
and child custody in the Primary Court of Rabat in Morocco. On
May 2, 1995, the father filed a complaint in the Superior Court
seeking, among other things, sole custody of Lina. Pursuant to a
court order, he served the mother by overnight mail on August 8,
1995. She filed a motion to dismiss several days later.
On September 29, 1995, the Family Part denied the mother's
motion to dismiss. The court held that the Act did not apply,
but that the court had subject-matter jurisdiction. Based on the
child's residence in and substantial contacts with New Jersey,
the court concluded that New Jersey was Lina's "home state"
within the meaning of the Act. The trial court viewed the mother
as holding the child "hostage."
The Family Part ordered the mother to return Lina to the
United States within a week and temporarily awarded the father
sole custody. It also restrained the mother from proceeding with
her custody action in Morocco.
The Appellate Division granted a temporary stay and
requested the Family Part to supplement its oral opinion with a
written statement of reasons. In its opinion, the Family Part
explained that the Act did not apply because the Moroccan court
had not yet entered a custody order. Finding that Morocco has
not yet signed the Hague Convention on the Civil Aspects of
International Child Abduction ("Hague Convention on Child
Abduction"), the Family Part ruled that the Convention did not
apply. The Family Part held that New Jersey was Lina's "home
state" and that it had jurisdiction to determine the issue of
custody. The court noted that when Lina left New Jersey, she had
been a resident for more than one-half of her lifetime. Stating
that the father believed the mother would return the child to New
Jersey, the court found that the mother had removed Lina by
"subterfuge."
The Appellate Division granted the mother's motion for leave
to appeal and continued the stay of the Family Part's order. On
March 15, 1996, the Appellate Division reversed.
288 N.J. Super. 575 (1996). It found "no basis in the record for the Family Part
judge's conclusion that [the mother] wrongfully removed Lina from
New Jersey to Morocco. The separation agreement clearly
contemplated that [the mother] would leave the United States with
Lina and take up residence in another country." Id. at 581. The
Court continued:
So too, the record is barren of anything
supporting the judge's finding that [the mother]
breached the agreement by denying [the father's]
right of visitation. Although [the father] in his
affidavit which accompanied his complaint alleged
in conclusory fashion that he had not been
permitted to visit Lina, it is undisputed that he
never made any support payments as required by the
agreement. He also neither tendered nor offered
to tender travel expenses, a precondition to his
right of visitation, until April 17, 1995.
[Id. at 581-82.]
The Appellate Division also held that the Family Part did not have subject-matter jurisdiction. It deemed the Act inapplicable, reasoning that the Act focuses on avoiding jurisdictional conflict between the courts of different states, not of different countries. Id. at 583. The court then turned to N.J.S.A 2A:34-51, the section of the Act treating international custody disputes. It construed the section as conferring jurisdiction only when a New Jersey court is asked to
enforce a custody decree entered by the authorities of a foreign
country. Id. at 584.
The Appellate Division held further that no federal statute
conferred subject-matter jurisdiction on the Family Part. The
court declined to apply the Hague Convention on Child Abduction,
noting that Morocco had not signed the Convention. Id. at 587.
In addition, the court found inapplicable the Parental Kidnapping
Prevention Act ("PKPA"). It reasoned that the PKPA concerned the
enforcement in one state of decrees entered by the courts of
another state, not those of another country. Id. at 588.
Finally, the Appellate Division held that even if the Family
Part had subject-matter jurisdiction, principles of international
comity mandated deference to the Moroccan court. Id. at 589.
The court held that the Moroccan courts could fairly resolve the
issue of custody in accordance with the best interests of the
child. Ibid.
At oral argument before us, the father's counsel stated that
the parties are participating in mediation in the Moroccan
proceeding. In that proceeding, the father is represented by
counsel and is actively contesting the mother's claim to custody
of Lina. By comparison, the mother is not represented by counsel
before this Court.
To determine whether the Act applies, we begin with its terms. The Act vests the Superior Court with jurisdiction to
make a child-custody determination in a variety of circumstances.
For example, the court has jurisdiction if New Jersey is the
"home state" of the child, if the child and at least one parent
have "significant connections" with New Jersey, or if no other
state is the home state or has significant connections with the
child and his or her parents. N.J.S.A. 2A:34-31(a)(1)-(4).
At first glance, the statutory language suggests that the
Act applies to custody disputes between residents of different
states and not to such disputes when one party resides in a
foreign country. The Act describes the jurisdiction of the
Superior Court in relation to the jurisdiction of other "states."
In addition, the legislative findings assert that the Act's
purpose is to avoid jurisdictional competition and conflict with
courts of other "states." N.J.S.A. 2A:34-29. The Act defines
"state" as "any state, territory, or possession of the United
States, the Commonwealth of Puerto Rico, and the District of
Columbia." N.J.S.A. 2A:34-30(j). That definition does not
expressly include other countries.
N.J.S.A. 2A:34-51, entitled "International application,"
adds meaning to the definition of "state." This section extends
the "general policies of [the Act] to the international area."
N.J.S.A. 2A:34-51. Thus, read as a whole, the Act applies to
foreign countries as if they were states.
That conclusion comports with the central policy of the
Act's jurisdictional provisions, which is to assure that custody
litigation occurs in the place where the child and his or her
family have the closest connection. N.J.S.A. 2A:34-29(c); Neger
v. Neger,
93 N.J. 15, 25-26 (1982). The policy applies when, as
here, one parent has removed the child to another country after
having resided in New Jersey for a substantial period of time
with the other parent.
The comments by the original drafters of the Uniform Act
support this interpretation. For example, the comment to UCCJA §
23, which is identical to N.J.S.A. 2A:34-51, states that the
Act's general policies, as delineated in UCCJA § 1 (N.J.S.A.
2A:34-29) "are to be followed when some of the persons involved
are in a foreign country or a foreign custody proceeding is
pending." One of the general purposes of the Act is to assure
that custody litigation proceeds in the state where the child and
the child's family have the closest connections and where
significant evidence concerning the child's care, protection,
training, and personal relationships is most readily available.
N.J.S.A. 2A:34-29(c). Theoretically, New Jersey might be this
"state," even if one parent or the parent and the child live in a
different country.
In holding that the Act did not provide the Family Part with
subject-matter jurisdiction, the Appellate Division relied on
Schmidt v. Schmidt,
227 N.J. Super. 528 (App. Div. 1988), and
Roszkowski v. Roszkowski,
274 N.J. Super. 620 (Ch. Div. 1993).
Schmidt, however, concerned that part of N.J.S.A. 2A:34-51 that
specifically allows New Jersey courts to enforce a foreign
custody decree. Schmidt, supra, 227 N.J. Super. at 533. The
Schmidt opinion did not focus on the issue before us, whether the
courts of New Jersey may entertain an international child-custody
dispute when a concurrent custody proceeding is pending in
another country.
In Schmidt, the father sued in New Jersey to enforce an ex
parte West German custody order. Id. at 529-30. The Family Part
denied the father's request for enforcement of the order because
he had not served the mother with process in the West German
proceeding. Id. at 531. The Family Part also denied the
father's motion to transfer the case to West Germany. Ibid. The
Appellate Division affirmed, holding that the Act did not require
a transfer. Id. at 533. It reasoned that the father, without
notice to the mother, had obtained the West German decree in
violation of N.J.S.A. 2A:34-51. Ibid. Confronted with the
request to enforce the West German decree, the Appellate Division
stated that the "UCCJA applies only to an international custody
case when the State is asked to recognize and enforce custody
decrees of foreign countries." Ibid.
Relying on that statement, the Family Part in Roszkowski,
supra, 274 N.J. Super. at 629, held that the Act did not vest it
with original jurisdiction to determine a custody dispute
concerning a child who had been removed to Poland. Unlike
Schmidt, Roszkowski did not involve enforcement of a foreign
decree. See also Loos v. Manuel,
278 N.J. Super. 607, 621 (Ch.
Div. 1994) ("The existence of [a German custody decree] is highly
important, if not indispensable, to a claim under the Act's
international provisions.").
Schmidt need not be read as restrictively as Roszkowski
suggests. First, Schmidt did not concern the question whether
the Act vests the Family Part with original subject-matter
jurisdiction. Schmidt dealt solely with the enforcement of an
order from a foreign country. Thus, the statement suggesting
that the Act does not vest the courts with original subject-matter jurisdiction was dicta.
Second, creating a distinction between the exercise of
original jurisdiction and enforcement of a foreign decree would
ignore the terms of N.J.S.A. 2A:34-51, which provides:
The general policies of this act extend to
the international area. The provisions of
this act relating to the recognition and
enforcement of custody decrees of other
states apply to custody decrees and decrees
involving legal institutions similar in
nature and to custody rendered by appropriate
authorities of other nations, if reasonable
notice and opportunity to be heard were given
to all affected persons.
The first sentence of the section extends all of the Act's
general policies "to the international area." The second
sentence requires New Jersey courts to recognize foreign custody
decrees issued by similar "legal institutions" in the same manner
as the courts would recognize decrees of other states, provided
those institutions have accorded affected persons notice and the
opportunity to be heard. The statutory language reflects the
Legislature's uncertainty about the nature of foreign legal
institutions. It counsels courts to verify that those
institutions have proceeded in a manner consistent with the
requirements of fundamental due process. Subject to those
qualifications, the statute recognizes that the Act applies to
international child-custody disputes.
Judicial recognition of foreign custody decrees comports
with the reality that nations are drawing closer together.
Information, capital, and goods daily cross international
boundaries. People likewise travel regularly from country to
country. National boundaries no longer prevent people from
meeting or marrying. Sometimes those marriages will end in
divorce and custody disputes. International child-custody
actions have become part of a global society.
With increasing frequency, state courts may confront custody
disputes arising from families comprised of citizens of different
countries. When resolving those disputes, a court may harbor
doubts about the law of another country, particularly when that
country's legal system, culture, religion, and language differ
from ours. Notwithstanding those doubts, the courts of another
country may provide a more convenient forum for determining
custody.
Through section 2A:34-51, the Legislature has extended the
Act's policies to the determination of jurisdictional questions
in international custody cases. Those policies include the
importance of the identification of the "home state" and the need
to avoid jurisdictional conflicts.
The majority of state courts that have considered the issue
have held, either explicitly or implicitly, that the term "state"
may include a foreign nation. Those courts have reached that
conclusion notwithstanding that relevant statutes uniformly
define "state" as "any state, territory, possession of the United
States, the Commonwealth of Puerto Rico, and the District of
Columbia." See, e.g., Zenide v. Superior Court,
27 Cal. Rptr.2d 703, 706 (Ct. App. 1994) (holding that France is "home state");
Stock v. Stock,
677 So.2d 1341, 1345 (Fla. Dist. Ct. App. 1996)
(finding that UCCJA applies to international custody dispute
between Switzerland and Florida); Horlander v. Horlander,
579 N.E.2d 91, 94 (Ind. Ct. App. 1991) (ruling that UCCJL applies to
determine whether Indiana or France is "home state"); McFaull v.
McFaull,
560 So.2d 1013, 1014 (La. Ct. App. 1990) (holding that
extension of UCCJA to international area authorizes treatment of
Leningrad as state under jurisdictional provisions of the Act);
Abu-Dalbough v. Abu-Dalbough,
547 N.W.2d 700, 704 (Minn. Ct. App.
1996) (finding that UCCJA applies to international custody
disputes); Black v. Black,
657 A.2d 964, 970 (Pa. Super. Ct.
1995) (holding that foreign country may be considered "home
state" for purposes of UCCJA); Adkins v. Antapara,
850 S.W.2d 148, 151 (Tenn. Ct. App. 1992) (holding that home-state analysis
may be used when deciding jurisdiction as between state and
foreign nation); Middleton v. Middleton,
314 S.E.2d 362, 368 (Va.
1984) (holding that England is equivalent of statutory "home
state"). But see Klien v. Klien,
533 N.Y.S.2d 211, 214 (N.Y.
Sup. Ct. 1988) (holding that Israel cannot be considered "home
state" within definition of statute). Such a holding further
accomplishes the general purposes of the Act, including the
fundamental policy of using the home-state analysis to decide
jurisdiction. See Adkins, supra, 850 S.W.
2d at 151; Middleton,
supra, 314 S.E.
2d at 368; see also Linda Silberman, Hague
International Child Abduction Convention: A Progress Report, 57
Law & Contemp. Probs. 209, 249 n.199 (1994) (stating that in
international cases "[t]he principles of the UCCJA may be used to
locate the litigation in the child's home state and/or enforce a
foreign decree").
Two courts have held that "state" does not include a foreign
country. In those states, however, the legislatures have adopted
a version of the UCCJA that omits the counterpart to section
2A:34-51. See State ex rel. Rashid v. Drumm,
824 S.W.2d 497, 503
(Mo. Ct. App. 1992) ("Since Missouri has not adopted [the
international application section] of the UCCJA, it is clear that
the legislature did not intend the word 'state' as used in [the
jurisdictional section] to include a foreign country.");
Schroeder v. Vigil-Escalera Perez,
664 N.E.2d 627, 636-37 (Ohio
Com. Pl. 1995) ("While some states have extended the general
policies of the UCCJA to the international arena, Ohio has not
promulgated similar provisions in its adoption of the UCCJA.").
The absence of a provision extending the UCCJA to international
disputes is crucial.
Our holding conforms also with a proposed revision of the
UCCJA, entitled the Uniform Child Custody Jurisdiction and
Enforcement Act ("UCCJEA"), which is under consideration by the
National Conference of Commissioners on Uniform State Laws.
Unif. Child Cust. Jur. Enf. Act (1996) (draft). The proposed
UCCJEA explicitly states that all of its provisions apply to
child custody proceedings of other countries, including the
jurisdictional determination of home-state priority.See footnote 1 In sum,
we conclude that the Legislature intended the Act to apply to
international child-custody litigation.
Having determined that the term "state" includes foreign countries and that the jurisdictional provisions of the Act apply to international custody disputes, we now consider whether the Family Part has subject-matter jurisdiction. We begin by recognizing that New Jersey was the home state of the child at the time that the father commenced this proceeding.
N.J.S.A. 2A:34-30(e) defines a "home state" as the state
where the child lived with one or both parents at least six
months before the custody suit began. Lina lived in New Jersey
with both of her parents from the time she was approximately
eight months old until she was approximately one year and nine
months old. Thus, she resided here for thirteen consecutive
months, more than twice the six-month statutory requirement. New
Jersey was Lina's home state.
The Act specifically vests the Family Part with jurisdiction
when New Jersey is the child's home state within six months
before the commencement of the proceeding, the child is absent
from New Jersey because he or she has been removed by a person
claiming her custody, and one parent continues to live in New
Jersey. N.J.S.A. 2A:34-31(a)(1). The facts satisfy these
jurisdictional prerequisites. New Jersey was Lina's home state
within six months before the proceeding. She left for Morocco
only two months before her father filed the present action. Her
mother, who also seeks custody, removed Lina from New Jersey to
Morocco. The father remains a New Jersey resident.
Thus, New Jersey was Lina's home state at commencement of
this proceeding even if, as the mother argues, Lina had lived in
Morocco for three months before moving to New Jersey. Finally,
the father's contention that the mother wrongfully removed Lina
from New Jersey does not predetermine the issue whether the
Family Part has subject-matter jurisdiction.
We conclude that New Jersey is the child's "home state" and that the Family Part has jurisdiction. Those conclusions do not necessarily resolve the jurisdictional conflict that arises when another court exercises original jurisdiction in a concurrent custody proceeding. Remaining is the question whether "the child and [her] family have a closer connection with another state [or country]." N.J.S.A. 2A:34-29(c). If so, the courts of New Jersey should defer to the more convenient forum. Id.; see, e.g., D.B. v. R.B., 279 N.J. Super. 405, 412 (App. Div. 1995) (holding that even if trial court had jurisdiction, Virginia was more appropriate forum); In re Adoption of Child by T.W.C., 270 N.J. Super. 225, 236 (App. Div. 1994) (finding that trial court did not abuse its discretion by denying plaintiffs' motion to dismiss because New Jersey, not New York, was more appropriate forum).
In the Appellate Division, the mother argued for dismissal on forum-non-conveniens grounds. Without deciding the issue, the Appellate Division held that the Family Part, even if it had jurisdiction, should defer to the Moroccan court. The court reached this result relying not on principles of forum-non-conveniens, but of international comity. Ivaldi, supra, 288 N.J. Super. at 589.
The better procedure is to decide the forum-non-conveniens issue under the provisions of the Act. Hence, we remand the
matter to the Family Part to determine whether Morocco or New
Jersey provides the more convenient forum. Essential to that
determination is N.J.S.A. 2A:34-35, which states that a court
should "consider if it is in the interests of the child that
another state assume jurisdiction." N.J.S.A. 2A:34-35(c). For
this purpose, the Family Part may consider, among other things,
whether Morocco has a closer connection with Lina and her mother;
whether substantial evidence concerning Lina's present or future
care, protection, training, and personal relationships is more
readily available in Morocco; and whether the Family Part's
exercise of jurisdiction would contravene any of the purposes of
the Act. Ibid.
The interests of the child are critical in determining which
jurisdiction provides a more convenient forum. Ibid. Lina has
lived in Morocco for approximately nineteen months since her
father filed this action. She is now over three years old and
presumably has established significant connections with Morocco.
Furthermore, her mother and her maternal grandparents also reside
in Morocco. Finally, the father is represented by counsel in
Morocco and is participating in the Moroccan proceedings.
We encourage the Family Part to communicate directly with
the Moroccan court to obtain any information needed to determine
whether New Jersey or Morocco is the more convenient forum.
N.J.S.A. 2A:34-35(d). If language differences pose a problem in
communication, the Family Part may obtain an interpreter through
the vicinage trial-court administrator. Communication between
courts furthers the goals of the Act by permitting the exchange
of information so that the court best situated to consider the
interest of the child will determine the question of custody.
N.J.S.A. 2A:34-29(b), (h).
If the Family Part dismisses this action, the dismissal
will not preclude a New Jersey court from subsequently reviewing
the enforceability of the Moroccan custody decree. For example,
if the Moroccan court denies the father procedural due process or
refuses to consider Lina's best interests, the Family Part may
then refuse to enforce the Moroccan decree. See Ali v. Ali,
279 N.J. Super. 154, 164-67 (Ch. Div. 1994) (declining to recognize
Gaza decree because no notice was given to mother and because
Sharia Court did not apply best-interests-of-the-child test).
In addition to noting the Hague Convention on Child
Abduction, supra at ____ (slip op. at 5), we also note the
recently negotiated Hague Convention on Jurisdiction, Applicable
Law, Recognition, Enforcement and Co-operation In Respect of
Parental Responsibility and Measures For the Protection of
Children ("Hague Convention on Jurisdiction"). Understandably,
the drafters of the Hague Convention on Jurisdiction have sought
to coordinate it with the Convention on Abduction. Both
conventions, for example, employ the concept of "habitual
residence."See footnote 2 We need not make a detailed comparison of the two
Conventions. For our purposes, it suffices to observe that the
Hague Convention on Jurisdiction further explains the application
of comity principles to international custody disputes.
Morocco is the only country that has signed the October 19,
1996 draft of the Hague Convention on Jurisdiction. The United
States has not yet signed the Convention, but in the Final Act of
the Eighteenth Session on October 19, 1996, our delegates agreed
to submit the Convention to this country's government. Although
the Convention has not yet taken effect, it provides helpful
guidance in arriving at a fair and reasonable resolution of this
matter.
The Hague Convention on Jurisdiction addresses various
aspects of the protection of children, including custody. It
begins by "[c]onfirming that the best interests of the child are
to be a primary consideration." Hague Convention on
Jurisdiction, Oct. 19, 1996 (preamble). Among the objects of the
Convention are "to determine the State whose authorities have
jurisdiction to take measures directed to the protection of the
person or property of the child" and "to establish such co-operation between the authorities of the Contracting States as
may be necessary in order to achieve the purposes of this
Convention." Id. at art. 1. Article 23 states that the courts
of one country need not recognize a custody decree issued by the
courts of another country if the decree contravenes the
fundamental principles of procedure or the public policy of the
country in which recognition of the decree is sought.See footnote 3
We trust, however, that the Moroccan court will consider the
child's best interests in fashioning a custody order. In that
regard, the Hague Convention on Jurisdiction seeks to assure that
the best interests of the child is the primary consideration in
all international disputes involving children. See id. at art.
8, 9, 23. We trust further that the Moroccan court will consider
the parties' separation agreement, including its provision
calling for the application of New Jersey law. Our goal is to
further the purposes of the Act and of the Hague Convention on
Jurisdiction by avoiding jurisdictional competition while
simultaneously discouraging parents from unilaterally removing
their children to obtain a more favorable forum.
If the Family Part dismisses the father's claim for custody,
it should inform the Moroccan court of its decision. N.J.S.A.
2A:34-35(h). The Family Part should also consider whether to
dismiss the father's other requests for relief.
The judgment of the Appellate Division is reversed and the
matter is remanded to the Family Part.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, GARIBALDI, STEIN, and COLEMAN join in JUSTICE POLLOCK's opinion. JUSTICE O'HERN did not participate.
NO. A-49 SEPTEMBER TERM 1996
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
JEAN JACQUES MARCEL IVALDI,
Plaintiff-Appellant,
v.
LAMIA KHRIBECHE IVALDI,
Defendant-Respondent.
DECIDED December 23, 1996
Chief Jusitce Poritz PRESIDING
OPINION BY Justice Pollock
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 The current draft of section 103 of the UCCJEA states:
"The provisions of this [Act] apply to child-custody proceedings
and determinations of other countries rendered by appropriate
authorities if there is reasonable notice and opportunity to be
heard."
Footnote: 2 See, e.g., Hague Convention on Child Abduction, S.
Treaty Doc. No. 11, 99th Cong., 1st Sess.,
19 I.L.M. 1501 (1980)
(stating that the Contracting States desire "to protect children
from the harmful effects of their wrongful removal or retention
and to establish procedures to ensure their prompt return to the
State of their habitual residence"); Hague Convention on
Jurisdiction, Oct. 19, 1996, art. 7 ("In case of wrongful removal
or retention of the child, the authorities of the Contracting
State in which the child was habitually resident immediately
before the removal or retention keep their jurisdiction until the
child has acquired a habitual residence in another State.").
Footnote: 3 Chapter IV - RECOGNITION AND ENFORCEMENT
II. Recognition may however be refused
b. if the measure was taken, except in a case of urgency, in the context of a judicial or administrative proceeding, without the child having been provided the opportunity to be heard, in violation of fundamental principles of procedure of the requested State;
c. on the request of any person claiming
that the measure infringes his or her
parental responsibility, if such measure was
taken, except in a case of urgency, without
such person having been given an opportunity
to be heard;
d. if such recognition is manifestly
contrary to public policy of the requested
State, taking into account the best interests
of the child;