SUPERIOR COURT OF NEW JERSEY
Courthouse, CN 900
Morristown, New Jersey 07960-0900
(201) 285-6434
Chambers of: David S. Cramp, Judge.
August 28, 1989
Dalena, Dalena & Allocca, Esqs. Jacoby & Myers, Esqs.
181 Main Street 26 Park Place
Madison, NJ 07940 Morristown, NJ 07960
Re: Becker v. Becker
Docket No. FD-14-14-90
Gentlemen:
This will constitute the decision in this matter.
This is an application by plaintiff, Julie Ann Becker in
accordance with the terms of The Convention on the Civil Aspects
of International Child Abduction, done at The Hague on October 25,
1980 (The Hague Convention). On July 1, 1988, The Convention
became effective between the United States and Australia.
Jurisdiction is conferred upon this Court by the International
Child Adduction Remedies Act of April 29, 1988, Pub. L. No.
100-300. 42 U.S.C.A. Sec. 11601, et seq. Section 4(a) of that
statute states that the Courts of the States and the United States
District Courts shall have concurrent original jurisdiction of
actions arising under The Convention.
The facts are not in dispute. It appears that the parties
were married on February 18, 1978 in Medford Lakes, New Jersey and
were, at that time, residing in Cherry Hill, New Jersey. They
lived in the State of New Jersey from 1978 to 1985. In July, 1985,
the parties moved to Australia. Plaintiff is an Australian
citizen, born on February 14, 1949; defendant is an American
citizen born on April 19, 1948. Defendant has permanent residency
status in Australia. Two children were born of the marriage,
Annamarie, born March 3, 1980 and Karl, born October 20, 1981.
Both children lived with their parents, first in New Jersey, then
in Australia until December 15, 1988. At that time, defendant left
Australia, ostensibly to vacation in the United States. It had
been planned that all of the family would participate in the
vacation; however, marital difficulties arose before they were to
leave on the vacation, and it was decided that plaintiff would
remain in Australia. While there is no evidence that defendant
intended not to return to Australia, he ultimately determined that
he and the children would stay in the United States. Shortly after
defendant advised plaintiff that he would not be returning to
Australia with the children, she made an application in accordance
with The Hague Convention on March 13, 1989. On March 14, 1989,
she also applied to a Family Court in Australia for custody and on
that same date, she was granted temporary custody. Defendant filed
for custody in this Court on June 21, 1989. On July 6, 1989,
plaintiff filed for custody by way of Order to Show Cause. The
original application sought custody and also sought to bar consent
of defendant, an Order was entered prohibiting defendant from
removing the children until further Order of the Court. On July
17, 1989, plaintiff petitioned the Court for the return of the
child pursuant to the Hague Convention.
One of the primary objects of The Hague Convention is "to
secure the prompt return of children wrongfully removed to or
retained in any Contracting State", Art. I(a). The first question
to be answered under The Convention is whether the removal or
retention of the children was wrongful. Art. III of The Convention
states that the removal or retention is to be considered wrongful
where "it is in breach of rights of custody attributed to a person
either jointly or alone, under the law of the State in which the
child was habitually resident immediately before the removal or
retention. In this case, the children were habitually resident for
a period of three and one-half years in Australia immediately
before they were removed. To constitute a wrongful removal or
detention does not require that the applicant must show any any
Criminal wrongdoing. Rather the thrust of The Convention is that
the act is wrongful in the civil sense; that is, the interference
with custody by taking and/or retaining the children from the
country in derogation or the remaining spouse's rights. Here, as
parents without any court order, both parties would have joint
custody. Under Australian law, according to an affidavit filed by
an attorney practicing in Australia, both parties in this case
would be entitled to joint custody and guardianship. They were
living together and both exercising custody. Had he not removed
the children, both would still be exercising custody. While the
evidence does not suggest that the removal here was wrongful, this
Court is convinced that the retention of the children against the
will of plaintiff was wrongful within the intended meaning of Art.
III of The Hague Convention. There are certain exceptions that
must be taken into consideration in interpreting The Hague
Convention. Art. XIII(a) provides that a Court of the requested
State is not bound to order the return if the person seeking the
return of the child was not actually exercising the custody rights
at the time of. removal or retention, or has consented to or
subsequently acquiesced in the removal or retention. In this case,
the facts are not in dispute; plaintiff was actually exercising
custody, Jointly with defendant, and while she may have acquiesced
in the removal, she does not acquiesce and did not acquiesce in
the 'retention. Under the Convention, defendant would have the
obligation of proving this exception by a preponderance of the
evidence. He has not done so.
The second exception is under Article XIII(b) wherein it is
stated that a Court of the requested State is not bound to order
the return of the child if there is a grave risk that his or her
return would expose the child to physical or psychological harm or
otherwise place the child in an intolerable situation. Defendant
would be required to prove those facts by clear and convincing
evidence under the terms of the Convention. Again, defendant has
failed to do so; indeed, there is no suggestion whatsoever of any
harm to the children if they were to be returned to Australia.
There is another exception in Article XX of The Convention,
but it simply does not apply in this case.
Accordingly, the Court is satisfied that plaintiff has
established the right to return of the children to Australia under
the terms of The Hague Convention. What is left to determine is
whether that right has been waived by plaintiff's having conferred
jurisdiction upon this Court to decide the issue of custody. The
Hague Convention is clear that The Convention applies irrespective
of substantive aspects of the underlying custody dispute.
Consequently, it is clear that The Convention would require the
return of a child even though the requested State may have entered
an Order granting custody to the person who has removed the child.
However, it is not altogether certain from the terms of The Hague
Convention whether the voluntary conferring of jurisdiction upon
the Court of the requested State by both of the parties to decide
the issue of custody would constitute a waiver of Convention
rights. Both of the Complaints in this action ask this Court to
decide the issue of custody. While it is a fact that plaintiff has
sought to confer jurisdiction on this Court, it would also appear
that the act of conferring jurisdiction on this Court was not
intended to forego any rights under The Hague Convention, nor to
actually seek a custody determination by this Court. Rather, as
plaintiff's counsel has indicated, the custody action here was an
"alternative" action. While its purpose is not altogether clear,
there is some support that it was brought to prevent the removal
of the children to Florida. The Court notes that the application
under the Hague Convention was initiated in March of 1989 and was
never abandoned; it proceeded at a proper pace. Accordingly, the
Court finds that plaintiff did not intend to give up her rights
under The Hague Convention by bringing the custody action in this
Court. "
In accordance with the intent of The Hague Convention, this
court is compelled to direct that defendant return the children
to Australia and to the custody of plaintiff forthwith. Counsel
for the plaintiff should submit an appropriate Order. The Court
awards petitioner costs and counsel fees in accordance with
Section VIII(b)(3) of The International Child Abduction Remedies
Act.
Very truly yours
/s/ David S. Cramp
David S. Cramp, J.S.C.