In the recently published Appellate Division decision of J.A. v. A.T., the Court faced a complicated decision regarding whether to overturn the trial court's opinion as to which court, as between NJ and Greece had jurisdiction to decide custody of minor children.
In this complicated and seemingly tortured case's history, where three litigations where taking place at the same time, one in NJ, one in Greece and one in the Federal courts, it's difficult enough to keep track of the role each court should be playing and the primary goal of what is best for the children.
J.A. and A.T. were both born in Greece but naturalized as U.S. citizens. They married and resided in NJ, where two of the children were born. After four years of marriage, the parties decided to return to Greece, where they had a third child. After living in Greece for approximately eight years, J.A.(father) returned to NJ with the two sons. A.T. remained in Greece with their daughter. Divergent stories begin at this point as A.T. claims that J.A. returned to NJ with the boys only for a short visit. J.A. claims it was the family plan for him to relocate to NJ with the boys and that A.T. would later join them with their daughter.
After J.T. and the boys had been in NJ for nearly three months, A.T. filed an application in Greece seeking temporary custody of all three children. The Greek tribunal held a hearing whereby J.A. was represented by a designated representative. The Greek tribunal entered an Order granting temporary custody of all three children to A.T.
J.A. claims that he was never served with this Order. Several months after the Order was entered by the Greek tribunal, A.T. also filed a Complaint in Greece for divorce and custody. She later also filed an action under the Hague Convention (International Child Abduction), which was two years later dismissed by consent of both parties.
Nearly one year after A.T. filed her applications in Greece, J.A. filed a Complaint for divorce in NJ and sought custody of all three children. A.T. was served in Greece with a copy of this Complaint and responded by filing a Notice of Limited Appearance, seeking to stay or postpone J.A.'s Complaint and dismiss his custody application. The NJ courts denied this application and found it had subject matter and personal jurisdiction over the divorce action.
The NJ court subsequently entered two additional Orders, which were also subject to A.T.'s appeal regarding payment of counsel and expert fees. However, the published Appellate Division opinion focuses on the jurisdictional and custody aspects of the lower court's decision.
The matter eventually proceeded to trial in the NJ courts. A.T. did not appear in NJ for trial, did not provide her testimony or any witnesses nor did she introduce any exhibits. A.T.'s argument was based on the theory of comity, which argued that the NJ court had to defer to the earlier Greek order because J.A. had voluntarily submitted himself to the jurisdiction of the Greek tribunal by authorizing a designated representative to appear on his behalf.
Counsel for the parties agreed to allow J.A.'s custody expert's report into evidence in lieu of her testimony. J.A. also testified, produced three witnesses on his behalf, and introduced evidence. The trial court awarded sole legal custody to J.A.
On appeal, A.T. made several arguments as to the court's award of sole legal custody to J.A., centering around the main argument that the NJ court erred by not deferring to the jurisdiction of the Greek tribunal.
Pursuant to N.J.S.A. 2A:34-57(c), NJ courts are to give full faith and credit to child custody orders issued from foreign nations except when "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." A.T.'s argument was that because the Greek tribunal was the first court to address the issue of custody of the children involved, that decision should be given deference. The Court in this opinion distinguished the general rule long adhered to "that the court which first acquires jurisdiction has precedence in the absence of special equities." Sensient Colors v. Allstate Ins. Co., 193 N.J. 373, 386 (2008). Of utmost importance in making determinations relating to custody of minor children is that the custody decision reached by the court be guided by the "best-interest-of-the-child" standard.
In evaluating the initial opinion and order released by the Greek tribunal as to custody, the Appellate Division held, "[a]ssuming that these findings represent the Greek equivalent of a "best-interest-of-the-child" determination, they fall woefully short of the factors our Legislature has mandated that New Jersey courts consider in making custody determinations." J.A. v. A.T., A-3003-07T4 at page 21.
Furthermore, the absence of a decision as to permanent custody of the children and an absence of the Greek tribunal's consideration of the statutory factors set forth by the NJ legislature as the guiding principles for a "best-interest-of-the-child" determination contravenes the public policy of NJ to safeguard the interests of children who are at the center of a custody dispute. Those best interests are overriding. Thus, the trial court's opinion as to custody was affirmed.
In its opinion, the Court noted that while it appeared as though J.A. was perhaps forum shopping, this too does not override the best interests determination the court must make.
