The following entry was prepared by Eliana Baer, an associate in our Princeton office.
We previously blogged on the United States Supreme Court’s decision in Abbott v. Abbott, which addressed the meaning of the “right of custody” under the Hague convention. There, the Supreme Court reversed the decision of the Court of Appeals for the Fifth Circuit to the extent that it ruled that it a noncustodial father who had regular visitation rights with his child, shared in the right to determine the child’s residence, which constituted a right of custody under the Hague Convention sufficient to invoke enforcement under the Hague. As to the issue of the child’s removal over international borders, however, the Supreme Court the Court did not automatically order the child’s return to Chile. Rather, the Court remanded the for a determination by the trial court. Parents from New Jersey and other states are put in similar situations on a daily basis trying to have their children returned to them from foreign nations.
One such recent case is Fuentes v. Fuentes which arose under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), which is a statute that determines jurisdiction in custody disputes. In Fuentes, the Father, a United States citizen, appealed from a Family Part order that registered an order of the Venezuelan Court, obtained by the Mother, a Venezuelan citizen, and ordered her to return the parties’ son, born in the United States, to Venezuela. The Mother, who was born in Columbia, and Father, a citizen of Venezuela, were married in New Jersey in June 2003. Unbeknownst to the Mother, however, at the time of the parties’ marriage, the father was still married to another woman. The parties’ son was born in September 2003. Approximately three months later, they moved to Venezuela with their child so that the Father could operate a business he owned there. Both parties maintained that the move was temporary.
During the time the parties lived in Venezuela, the Mother, who had two children from previous relationships, would frequently travel to the United States to facilitate visitation with them and their respective fathers. In 2005, when the relationship between the parties became strained, the Mother left Venezuela with the parties child claiming she was making another trip to visit one of her other children, but never returned to Venezuela. Instead, she instituted a custody action in New Jersey. Finding that New Jersey lacked jurisdiction under the UCCJEA, however, the judge concluded that Venezuela would be a more appropriate forum to bring the action.
Thereafter, in 2006, the Mother filed a complaint for annulment of the marriage in New Jersey. While the complaint did not seek to vacate the 2005 order, it did seek (1) custody of the child; (2) to limit the Father’s visitations; and (3) child support, alimony and counsel fees. As the Father failed to file a timely answer, a default was entered, and in April of 2007, the Mother was awarded a judgment of nullity, full legal and physical custody and granted the Father limited visitation solely in the United States.
In September 2007, the Father brought an Order to Show Cause seeking to vacate the award of custody and also sought limited visitation with his son pursuant to a Venezuelan court order entered in August. In response, the Mother requested that the Court’s April judgment remain in effect and that the court retain its jurisdiction. While a hearing was scheduled in January of 2008, it never occurred.
In September of 2008, the Father filed yet another Order to Show Cause requesting that the child be immediately returned to Venezuela Order and that he be granted temporary physical and legal custody pursuant to a Venezuelan Court. Essentially, the Father contended that the 2005 order was still in effect and that the Venezuelan Court continued to exercise jurisdiction, requiring the child be returned to Venezuela for a custody determination. The Mother contended, however, that the 2007 judgment granted her custody and should remain in effect and argued that relief from the 2005 order was appropriate based upon the Father’s fraud in inducing her to marry him while he was still married to another woman. She further contended that New Jersey should maintain jurisdiction over the child given the 2007 judgment of nullity that granted the Mother custody. The judge concluded that “the foreign order was to be registered in the New Jersey court and pursuant to that order the minor child should be returned to Venezuela,” dismissing the Mother’s argument that she had ever filed for affirmative relief as a result of the Father’s fraud, instead choosing to do so in opposition to his motions alone. Further, even if she had filed for affirmative relief, the judge concluded that “the alleged fraud…had no bearing upon jurisdiction for the custody case…because the validity of the marriage of the parties would not have any impact upon the jurisdiction determination made pursuant to the UCCJEA.”
The Mother filed her appeal and sought a stay from the Family Part. In turn, the Father filed yet another Order to Show Cause, seeking custody and law enforcement assistance in ensuring his son’s safe return to Venezuela. The Family Part granted the Mother’s request for a stay pending appeal and denied all of the Father’s requested relief.
The panel reversed and remanded, finding that the motion judge erred (1) in finding that plaintiff had not filed for affirmative relief based on the Father’s fraud in inducing her to marry him while he was married to another woman; (2) in concluding with no explanation that the alleged fraud had no bearing on the jurisdiction determination made pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act; and (3) in failing to address the effect of the intervening judgment of nullity and its award of custody to plaintiff. The panel said that on remand, with respect to invocation of jurisdiction under the UCCJEA, the court must consider whether, the Father should benefit from his alleged fraudulent inducement of the Mother to marry him and relocate to Venezuela, i.e., vest Venezuela with jurisdiction over issues regarding the custody of a citizen of the United States who, absent the fraud, might never have been physically in Venezuela.
What is interesting about this case is the fact that while New Jersey courts have previously considered a party’s wrongful conduct in securing a foreign court’s jurisdiction, here, the Appellate Division went as far back as the Father’s fraudulent inducement of the Mother to marry him to begin with. Presumably, this set a series of events into motion which resulted in the child eventually being removed from Venezuela. It will be interesting to see what weight the trial court will give to the Father’s fraud. We will provide an update once the decision is rendered.