Opinion
DOCKET NO. A-4320-13T1
06-18-2015
JUAN OVIEDO, Plaintiff-Appellant, v. PATRICIA VILLALOBOS, Defendant-Respondent.
Santiago D. Orozco, attorney for appellant. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hoffman and Whipple. On appeal from Superior Court of New Jersey, Family Division, Passaic County, Docket No. FD-16-00I1340-14. Santiago D. Orozco, attorney for appellant. Respondent has not filed a brief. PER CURIAM
Plaintiff Juan Oviedo ("Father") appeals from the April 10, 2014 Family Part order denying his emergent application to restrain defendant Patricia Villalobos ("Mother") from returning to Peru with their infant son, G.O., as well as the April 16, 2014 order denying reconsideration. We affirm.
I.
We discern the following facts from the motion record. Mother and Father are both naturalized U.S. citizens born in Peru. They are not married. G.O. is a U.S. citizen, and holds a Peruvian passport through his parents.
Mother worked as a nanny until she became pregnant, at which time she went on unemployment. G.O. was born in Paterson in January 2013. The parties planned to live in New Jersey until 2020, when Father's other children will be fully grown, and then to move to Peru.
In March 2013, Mother took G.O. to Peru in order to care for her ill parents. Father visited for two weeks in July and August 2013. Mother and G.O. returned to Father's house in New Jersey on December 13, 2013, before going back to Peru on January 26, 2014. According to Mother, she returned to Peru in order to obtain a job.
Mother and G.O. traveled to New Jersey again on April 3, 2014. By that time, Father was in a relationship with a different woman, and would not allow Mother to stay in his house. According to Mother, she returned only to allow G.O. to visit with his father. On April 9, 2014, Father filed an emergent application with the court, seeking custody of G.O. along with an order restraining Mother from taking G.O. to Peru.
There had been no prior proceedings concerning G.O. in any jurisdiction.
Father claimed that Mother only traveled to Peru with G.O. to visit temporarily with family. Mother asserted that she is alone and unemployed in New Jersey, and wants to live in Peru where she has family and job opportunities. She had recently interviewed for a position in Peru with a pharmaceutical company.
The motion court heard testimony on April 10, 2014. The court found that G.O. had not lived in New Jersey for six consecutive months immediately prior to the proceeding, and therefore, under N.J.S.A. 2A:34-54, -65a(1), New Jersey was not G.O.'s home state, and the court lacked jurisdiction. The court further indicated that, "even if the [c]ourt had subject matter jurisdiction, the [c]ourt would have granted the mother's application for relocation . . ." under Baures v. Lewis, 167 N.J. 91 (2001).
In Baures, supra, 167 N.J. at 1167-17, our Supreme Court provided twelve factors that courts must consider before allowing a custodial parent to remove a child from New Jersey without the consent of the non-custodial parent. Id. at 116-17.
Father moved for reconsideration, and the court denied Father's motion on April 16, 2014, noting that he failed to present any new evidence or law.
This appeal followed. On appeal, Father argues that the motion court erred in finding that: (1) the court lacked jurisdiction; (2) Father was not entitled to temporary injunctive relief; and (3) application of the Baures factors, if New Jersey had jurisdiction, would support allowing Mother to relocate with G.O. to Peru.
II.
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53 to -95, governs subject matter jurisdiction over child custody proceedings. Sajjad v. Cheema, 428 N.J. Super. 160, 170 (App. Div. 2012). It provides, in pertinent part, that New Jersey courts have "jurisdiction to make an initial child custody determination only if . . . this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding . . . ." N.J.S.A. 2A:34-65a. "'Home state' means the state in which a child lived . . . for at least six consecutive months immediately before the commencement of a child custody proceeding. . . . A period of temporary absence . . . is part of the period." N.J.S.A. 2A:34-54.
Plaintiff does not argue that Peru lacked or declined jurisdiction, and therefore he does not contend that New Jersey has jurisdiction under N.J.S.A. 2A:34-65a (2) to (4). Similarly, plaintiff does not argue that New Jersey courts should assume temporary emergency jurisdiction pursuant to N.J.S.A. 2A:34-68.
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"[D]etermination of the child's legal residence or domicile is unnecessary as the statutory language 'lived,' included within the definition of home state, connotes physical presence within the state, rather than subjective intent to remain." Sajjad, supra, 428 N.J. Super. at 172-73. In determining whether an absence was temporary, however, we consider:
(1) the parent's purpose in removing the child from the state, rather than the length of the absence; (2) whether the parent remaining in the claimed home state believed the absence to be merely temporary; (3) whether the absence was of indefinite duration; and (4) the totality of the circumstances surrounding the child's absence.The child's presence in the state after "a custody proceeding is initiated is irrelevant . . . ." Ibid.
[Id. at 173 (citations omitted).]
We treat foreign countries as if they were states of the United States for the purpose of applying these provisions "if the foreign court gives notice and an opportunity to be heard to all parties before making child custody determinations." N.J.S.A. 2A:34-57. Peru has acceded to the Hague Convention on the Civil Aspects of International Child Abduction, and, as the motion court noted, Father submitted no evidence to indicate that Peru provides insufficient procedural due process. See Poluhovich v. Pellerano, 373 N.J. Super. 319, 366-67 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005). Accordingly, we reject Father's argument that the motion court erred in treating Peru, within the contexts of this custody matter, as a state of the United States, pursuant to N.J.S.A. 2A:34-57.
In the six months immediately before April 9, 2015, G.O. spent approximately four and one-half months in Peru and one and one-half months in New Jersey. Of G.O.'s thirteen months of life, he had lived in New Jersey for at most five months, while he had lived in Peru for at least eight months.
Father argues that G.O.'s time in Peru should be considered a temporary absence. The parties' arrangement to live in New Jersey until 2020 was clearly dissolved by the ending of their relationship, precipitated by Father's involvement with another woman. Father justifiably believed that Mother's first trip to Peru was temporary. However, by the length of her stay and her pursuit of job opportunities, it is apparent that, by the time of her second trip on January 26, 2014, Mother intended to remain in Peru indefinitely. Father's contrary assertions are undermined by the fact that he traveled to Peru to visit Mother and G.O., his relationship with another woman, and his refusal to allow Mother to return to his house.
Given the relative portions of time G.O. lived in New Jersey and Peru, and Mother's clear intent to remain in Peru indefinitely, the record supports the motion court's finding that G.O.'s absence from New Jersey was not a temporary one. See Sajjad, supra, 428 N.J. Super. at 173. As G.O. lived in Peru for the majority of the six months prior to the filing of this action, we conclude that the motion court correctly found that New Jersey was not G.O.'s home state. See N.J.S.A. 2A:34-54. Thus, New Jersey lacks jurisdiction, and the court properly denied Father's motion. N.J.S.A. 2A:34-65.
As we conclude that the New Jersey courts lack jurisdiction over this matter, we do not reach plaintiff's remaining arguments.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION