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SAMPLE PETITION FOR CERTIFICATION
IN A FAMILY LAW ACTION The following Petition for Certification to the New Jersey Supreme Court is provided by On-Point Paralegal Services, LLC, as a writing sample. Personal information has been deleted. We have made every effort to maintain proper format while converting this document to .html code for display on the Internet. PETITION FOR CERTIFICATION AND APPENDIX STATEMENT OF QUESTIONS PRESENTED
STATEMENT OF THE MATTERS PRESENTED This matter was disposed of by the Appellate Division via motions for summary disposition. [PP-1] Plaintiff submitted a 20 page brief during that motion, defendant's counsel submitted a 12 page brief and plaintiff submitted a concise reply with leave of court. The court is respectfully referred to those papers for the facts and law in detail. Only a summary is provided herein.
This court has recognized for at least the past 22 years that the Uniform Child Custody Jurisdiction Act contemplates situations where there will be concurrent jurisdiction: "Thus, the home state and significant contact tests may produce concurrent jurisdiction in two or more states." E. E. B. vs. D. A., 89 N.J. 595, 609-10 (1982). See also Peregoy v. Peregoy, 358 N.J. Super. 179, 184 (App. Div. 2003) ("The UCCJA recognizes that more than one state may have jurisdiction over custody and visitation …"). Plaintiff argued to the trial court that since one of
the siblings resides in New Jersey and the other in Pennsylvania, and
since both of their interests are at issue in this action for visitation
rights, there is concurrent jurisdiction between the two states. The same
argument was made to the Appellate Division. [Pb-8, fn. 2] Interestingly, both the trial court and the Appellate Division ignored that argument, and did not as much as acknowledged it. The trial court's opinion is reproduced at Pa183-Pa185, and the two appellate Orders are attached hereto as PP-1 and PP-3. There is no mention of concurrent jurisdiction in any of the opinions or in the "Supplemental" sections of the appellate Orders. The Orders are discussed in more detail later in this Petition.
Plaintiff also relied heavily upon Peregoy v. Peregoy,
358 N.J. Super. 179 (App. Div. 2003). There, it was held that where there
is concurrent jurisdiction between different States under the UCCJA, our
courts are required to determine where the best interest of the siblings
mandate that the case be heard. "[I]n the event that the court finds
concurrent jurisdiction in two states, the [court is] to determine which
is the more appropriate state to exercise its jurisdiction in the child's
best interest". Id. at 196. No matter from what angle this case was analyzed, everything kept circling back to the question of what was the best interest of the siblings, but neither the trial court or Appellate Division addressed that question.
1. Pa. Law Prohibits Compelled Sibling Visitation Rights. Plaintiff argued that it would be in the best interest
of the siblings for New Jersey to have jurisdiction because the law in
Pennsylvania is that biological siblings who are separated by adoption
are not entitled to compelled visitation rights, even if it is in the
best interests. [Pb-11 to Pb13] The Supreme Court of Pennsylvania has so ruled on two
occasions. See Ken R. vs. Arthur Z., 682 A.2d 1267 (Pa. 1996), and T.B.
v. L.R.M., 786 A.2d 913, 917 (Pa. 2001) ("Appellant relies on this
Court's decision in Ken R. vs. Arthur Z. … where we held that a sibling
does not have standing to sue for visitation because the statutory scheme
does not protect a sibling's interest in that regard") (Emp. Supp.). To boot, the defendants' legal counsel threatened the following to plaintiff's father at the start of this litigation:
Although this paragraph is outside the record, the defendants have made good on that threat thus far. They have not allowed the siblings to talk to one another since September 2004. Birthdays and the holiday season have passed and the siblings have had no contact whatsoever. [Rb6] This they do notwithstanding that they conceded on appeal that it is the best interest of the siblings to have a relationship together. They wrote in their appellate papers that, "[T]he XXXXXXXXXXXXXXXXXX's agree the fostering of a relationship [between the siblings] is an important aspect of [their] development …" [Db10; Rb4, Point I]
2. N.J. Law Allows Compelled Sibling Visitation Rights. New Jersey law sharply contrasts Pennsylvania law on
this issue of sibling visitation. Our statutory law provides that, "[A]ny
sibling of a child residing in this State may make application before
the Superior Court, in accordance with the Rules of Court, for an order
for visitation." N.J.S.A. 9:2-7.1(a). There is a long list of New Jersey caselaws, including supporting dicta from this Court, where visitation rights have been granted to siblings separated by adoption when it has been shown that it is in their best interest to do so. This court has only commented on this issue in dicta, however, and has not squarely confronted the issue. All of those cases were cited in briefs to the trial court, and in the briefs submitted to the Appellate Division. [Pb12 to Pb13] The argument went unacknowledged. Here is a list of the cases.
Thus, jurisdiction in this case is determinative as to whether the siblings receive a visitation order or not. Quite frankly, it appears that jurisdiction will be determinative as to whether the siblings will even speak again.
C. Lack of Guardian Ad Litem. The trial court appointed Stacey XXXXXXXX, Esq., to serve
as the sibling's guardian ad litem in this case. [Pa103] She was explicitly
appointed for the purposes of briefing jurisdiction issues to the court.
Plaintiff's father was Ordered to pay a $1,500 retainer
to Ms. XXXXXXXX [Pa103], but he could not do so because he was in the
process of emerging from a Chapter 7 bankruptcy. [Pa123] He also provided
his tax returns [Pa107] to the court showing plaintiff's family to have
an income that was below the poverty level established by the U.S. Department
of Health and Human Services as set forth in the Federal Register. [Pa118]
Plaintiff's father thoroughly presented this issue to the trial court
in a motion for reconsideration [Pa87 at Pa89-Pa91, Paragraphs 16-26],
and in plaintiff's brief in the Appellate Division. [Pb15-Pb16, Point
II; Rb19, Point VII] Neither court acknowledged the argument. There is no published caselaw by any court of this State
addressing a situation as presented here. Here, the rights of two children
from two different jurisdictions are involved, with only a pro se litigant
- a non-attorney - to advocate for them. The legal issues were complex
to the extent that the trial court appointed a guardian ad litem to brief
the issue for the children and pro se party, but the court took action
without allowing that attorney to make an appearance because plaintiff's
family was in bankruptcy. [Pa87 at Pa89, Para. 16-26] The court did this
without first inquiring into the pro se defendant's ability for pay for
the attorney's services. [Rb20, Point VII(b); Pa87 at Pa96, Paras. 52-59] This is a matter of public importance that should be
addressed by this court. It is true that plaintiff's father may be her
advocate in court, but it is not true that he can also be the Pennsylvania
sibling's advocate. That sibling virtually went unrepresented below in
that the defendants conceded that visitation was in his best interest
[Db10; Rb4, Point I], but still litigated to strip the him of the right
to visit with his sister. Thus, the Pennsylvania sibling was not being
represented by his foster parents in that case. The foster parents were
only representing themselves.
1. Actual Damages. The failure to allow an attorney to make an appearance
stripped the siblings of having an attorney research means to achieve
jurisdiction in New Jersey aside from the UCCJA. For example, N.J.S.A. 9:2-7.1(a) allows XXXXXXXX's out of state sibling to petition a New Jersey court for visitation with her. The appointed attorney could have resolved the issue of jurisdiction simply by amending the Complaint, or even filing a separate Complaint, to add a claim brought by the Pennsylvania sibling for visitation rights with plaintiff. This statute clearly provides that,
[A]ny sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. Thus, the Pennsylvania sibling, as a "sibling of a child residing in this State", has a right to seek visitation rights with plaintiff in a New Jersey court. Id. The court is reminded again at this point that the defendants conceded on appeal that this would be in the sibling's best interests. They wrote in their appellate brief that, "[T]he XXXXXXXXXXXXXXX's agree the fostering of a relationship [between the siblings] is an important aspect of [their] development …" [Db10; Rb4, Point I]
ERRORS COMPLAINED OF & COMMENTS AS TO APPELLATE OPINION The trial court declined jurisdiction because the Pennsylvania
sibling has never resided in the State of New Jersey and his foster parents
have no connection to the State of New Jersey. [Pa183 at Pa185] The Appellate Division ruled likewise. The appellate Order provides in the "Supplemental" section that, "XXXXXXXX's sibling has never lived in this State. His only connection with this State is the current residence of his half-sibling. Neither N.J.S.A. 2A:34-31a(1) or N.J.S.A. 2A:34-31a(2) provide a basis to establish jurisdiction over the out-of-state sibling." [PP-1 at PP-2] Neither the trial court or Appellate Division mentioned, however, the fact that plaintiff's family has no connection to the Commonwealth of Pennsylvania and that, although plaintiff formerly resided in Pennsylvania, she has not for the past four uninterrupted years. [Pa183 at Pa185] In addition, the two statutes referred to by the Appellate Division as quoted above are not the only two avenues of obtaining jurisdiction under the UCCJA. Plaintiff's arguments were (a) concurrent jurisdiction and (b) the best interest of the children under a separate subsection of the UCCJA, viz. N.J.S.A. 2A:34-31(a)(4)(ii). Pursuant to N.J.S.A. 2A:34-31(a)(4)(ii), proving the best interest of the siblings is sufficient to obtain jurisdiction. The Appellate Division also ignored cases such as New Jersey Div. of Youth and Family Services v. E.D., 233 N.J. Super. 401 (App. Div. 1989). There, the Appellate Division required New Jersey to maintain jurisdiction because if the case was transferred to South Carolina, South Carolina would not appoint legal counsel in the case which presented issues of an adoption and related termination of parental rights hearing. Id. at 409-10. [Rb14] E.D. stands for the proposition that our courts will
not relinquish jurisdiction to another State if that State is going to
violate our highly regarded public polices. In the case at bar, it cannot
be said that transferring this case to Pennsylvania will not so violate
the New Jersey public policy of always doing what is in the best interest
of the children. Pennsylvania will not do that. REASONS WHY THE PETITION SHOULD BE GRANTED Our State is lacking law that clearly defines whether
our courts should maintain jurisdiction if presented with a reasonable
likelihood that the children's best interests will be violated if the
case is sent to a certain jurisdiction. We are also lacking guidance as
to whether trial courts are obliged to make findings of fact regarding
the children's welfare under such circumstances. Is it an abuse of discretion
to make no such findings of fact at all, such as is the case here? In New Jersey, our children's best interests is of the highest concern and trumps all other considerations. Hoy v. Willis, 165 N.J. Super. 265, 276 (App. Div. 1978) ("At all times the best interests of the child should be the guiding principle and the paramount considerations are the child's safety, happiness and mental, physical and emotional welfare"); Matter of Baby M, 109 N.J. 396, 445 (1988) (plaintiff and her brother's best interests are "dispositive"). These are questions of great public importance and this
court should squarely confront them. CONCLUSION For all foregoing reasons, and those expressed in plaintiff's appellate briefs, this Petition for Certification should be granted. Respectfully Submitted,
________________________________ Dated: XXXXXXXXXXXXXXXXXXX CERTIFICATION I certify, pursuant to R. 2:12-7(a), that this petition
presents a substantial question and is filed in good faith and not for
purposes of delay. |
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