Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

What is an Order to Show Cause in a New Jersey Family Court?

Essentially, it is an emergent application to the Family Part of the Superior Court of New Jersey.  Lawyers and attorneys who handle only divorce and family law cases can usually easily distinguish between was would be deemed an emergency application versus an application to would proceed as per the standard motion track.  An Order to Show Cause is typically heard immediately.  A standard motion takes weeks to be handled by the Court.

Examples of matters that a New Jersey Family Court would find emergent include kidnapping of a child, abuse of a child or any similar matter that would place a child in a situation in which they would face potential “irreparable harm.” 

Financially speaking, examples would be proof that one spouse is preparing to move large sums of money to an overseas account.  Discovery that your spouse has allowed their life insurance to lapse (or change beneficiaries).

Following, please find an example Order to Show Cause and a Legal Brief that my family law and divorce law firm would file in the case of blocking the kidnapping of a child before they have been illegally removed from the jurisdiction of the state of New Jersey:

LAW OFFICES OF EDWARD R. WEINSTEIN, L.L.C.

Weinstein Professional Building

214 Highway 18 North, Suite 2A

East Brunswick, New Jersey 08816

732-246-0909

Attorney for Plaintiff, John Doe

JOHN DOE,

                                                                       

            Plaintiff,                                                                                 

v.                                                                    

                                                                       

           

JANE DOE,

           

            Defendant.

SUPERIOR COURT OF NEW JERSEY UNION COUNTY

CHANCERY DIVISION: FAMILY PART

 

        DOCKET NO.  FM-

CIVIL ACTION

ORDER TO SHOW CAUSE WITH TEMPORARY RESTRAINTS

THIS MATTER, having been opened to the Court upon the application for an ex parte Order to Show Cause, by Plaintiff, Mr. John Doe, through his counsel, the Law Offices of Edward R. Weinstein, LLC (Elizabeth Rozin-Golinder, Esq. appearing); and notice having been provided to Defendant pro se; and the Court having considered the Certification and letter brief attached hereto; and it appearing from the contents of the annexed Certification that were the requested relief not issued immediately, the minor children will suffer irreparable harm and risk being transported to India, a non-signatory of the Hague Convention; and for good cause shown;

            IT IS on this_____ day of March, 2014;

ORDERED, as follows:

1.              Plaintiff shall have temporary sole physical and legal custody of the subject minor children born of the marriage, to wit: Susie Doe, born August 5, 2009, and Bobby Doe, born February 16, 2011;

2.              Defendant shall return the minor children back to New Jersey from California within two days of this Order, or a warrant may be issued for her arrest for kidnapping the minor children and removing them from the state;

3.              Defendant shall turn over the children’s passports and social security cards to the Union County Family Division Manager not later than 3:00 pm on March 20, 2014;

4.              The State of New Jersey is deemed the home state of the minor children, Susie Doe, born August 5, 2009, and Bobby Doe, born February 16, 2011;

5.              The United States of America is deemed the home country of the minor children, Susie Doe, born August 5, 2009, and Bobby Doe, born February 16, 2011;

6.              The State of New Jersey is deemed the habitual residence of the minor children, Susie Doe, born August 5, 2009, and Bobby Doe, born February 16, 2011;

7.              Until further Order of the Court, the Defendant, JANE DOE, is enjoined and restrained from relocating, removing, or traveling with the parties’ minor children, Susie Doe, born August 5, 2009, and Bobby Doe, born February 16, 2011, outside the State of New Jersey, County of Union, other than to return them to New Jersey from California within two days of this Order;

8.              Defendant is prohibited from taking the children to Egypt;

9.              Defendant is prohibited from fleeing the State of New Jersey prior to adjudication of the Order to Show Cause;

10.           Defendant shall turn over her passport/passports to the Union County Family Division Manager not later than 3:00 pm on March 20, 2014;

11.           Plaintiff shall report this Court’s Order to the United States Department of State, and the minor children, Susie Doe, born August 5, 2009, and Bobby Doe, born February 16, 2011, shall be placed on the Children’s Passport Issuance Alert Program;

U.S. Department of State

Passport Services, Charleston Passport Center

Attn: Children’s Passport Issuance Alert Program

1269 Holland Street, Building D

Charleston, SC 29405

E-mail: childrenspassports@state.gov

Phone: 888-407-4747

Fax:     843-746-1827

12.           Defendant shall undergo a psychiatric evaluation and risk assessment with _____________________, a doctor chosen by the Court. 

IT IS FURTHER ORDERED, that on the ___ day of _____________, 2014 at ___ in the forenoon, or as soon thereafter as counsel may be heard, Defendant shall appear before the Honorable ______________________________ at the Union County Superior Court, 2 Broad Street, Elizabeth, New Jersey, to show cause as to why an order should not be entered as follows:

1.              Awarding Plaintiff sole legal and physical custody of the minor children born of the marriage;

2.              Prohibiting Defendant from holding possession of the children’s passports;

3.              Prohibiting Defendant from fleeing the State of New Jersey pending adjudication of the matrimonial litigation;

4.              Compelling Defendant to turn over her passport/passports to the Court pending adjudication of the matrimonial ligation;

5.              Prohibiting the Defendant from removing the children from Union County, New Jersey;

6.              Awarding Plaintiff counsel fees; and

7.              Awarding such further relief that this Court may deem equitable and just.

IT IS FURTHER ORDERED, that the within Order and support documents shall be served upon Defendant within _____ days.

IT IS FURTHER ORDERED, that if the Defendant does not file and serve opposition to this order to show cause, the application may be decided on the papers on the return date and relief may be granted by default, provided that the Plaintiff files a proof of service and proposed form of Order at least three (3) days prior to the return date; and it is further

IT IS FURTHER ORDERED, that Defendant shall file written opposition to the Order to Show Cause by ___________________, 2014.  The original documents must be filed with the Clerk of the Superior Court in the county listed above.  You must send a copy of your opposition papers directly to Hon. _________________, J.S.C., whose address is 2 Broad Street, Chambers _______, Elizabeth, New Jersey.  You must also send a copy of your opposition papers to the Plaintiff’s attorney whose name and address appear above.  A telephone call will not protect your rights; you must file and serve your opposition (with the fee) if you want the Court to hear your opposition to the relief the Plaintiff is seeking, and it is further; and it is further

IT IS FURTHER ORDERED, that the Plaintiff shall file and serve any written reply to the Defendant’s opposition by _____________, 2014; and it is further

IT IS FURTHER ORDERED, that the Defendant’s may move to dissolve the restraints herein upon __________ day(s) notice to the Court and Plaintiff.

_______________________________________ 

J.S.C.


LETTER BRIEF

Via Hand Delivery

Hon. __________________, J.S.C.

New Jersey Superior Court

Chancery Division, Family Part

Union County Courthouse

2 Broad Street

Elizabeth, NJ 07202

Re:      Doe v. Doe

            Docket No. FM-20-______-14

Dear Judge _________________:

We represent the Plaintiff, Mr. John Doe, in the above-captioned matter.  Please accept this letter brief in support of Plaintiff’s Order to Show Cause.

STATEMENT OF FACTS

Plaintiff relies upon the facts set forth in his Certification submitted in support of this application.

LEGAL ARGUMENT

The standard for the issuance of injunctive relief has been detailed in the New Jersey Supreme Court decision Crowe v. DeGioia, 90 N.J. 126 (1982). In Crowe, the Court held that, “the determination to authorize preliminary relief summons the most sensitive of judicial discretion.  In exercising that discretion, courts have been guided traditionally by certain fundamental principles.”  Id. at 132.  See also, Ispahani v. Allied Domecq Retail, 320 N.J. Super. 494 (App. Div. 1999)  The Crowe opinion goes on to discuss four fundamental principles:

1.     “One principle is that a preliminary injunction should not issue except when necessary to prevent irreparable harm….” Id. at 132. (“Irreparable harm” factor).

2.     “A second principle is that temporary relief should be withheld when the legal right underlying plaintiff’s claim is unsettled.” Id . at 133 (citations omitted) (“Settled legal right” factor).

3.     “A third rule is that a preliminary injunction should not issue where all material facts are controverted.” Id. at 133. (“Uncontroverted material facts” factor).

4.     “The final test in considering the granting of a preliminary injunction is the relative hardship to the parties in granting or denying relief.”  Id. at 134 (emphasis added)(citations omitted) (“Balancing of hardships” factor).

It is respectfully submitted that an application of these factors to the underlying facts of this matter supports the issuance of emergent relief as requested by Plaintiff. 

Irreparable Harm

            In Crowe, the Court measured the “irreparable harm” standard in terms of whether the harm from which avoidance is sought could be remedied with monetary assessment. Here, it cannot. The harm in play concerns the harm facing minor children if they are not returned to New Jersey.

As detailed in the Plaintiff’s Certification, the minor children, face irreparable harm.  The Defendant kidnapped the children and took them to California at the end of February. She refuses to return the children to New Jersey and is making false allegations against the Plaintiff in order to keep the children away. Significantly, Defendant took the children’s passports and there is a chance that she may abscond with the children to Egypt, a non-signatory to the Hague Convention. As such, to prevent harm to the children, Defendant should be Ordered to return the children to New Jersey and should be prevented from taking them out of the State of New Jersey without Court permission.  Defendant should also be prohibited from applying for a new passport on the children’s behalf, and the minor children’s names should be placed on the Children’s Passport Issuance Alert Program as a further safeguard.

 If Plaintiff is not granted temporary custody of the child, pending further Order from the Court, the harm that may occur is not likely to be remedied from monetary assessments and will likely be irreparable.

 “Settled Legal Right”

As to the second factor set forth in the Crowe decision, pursuant to N.J.S.A. 9:2-2, “[w]hen the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State… they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.” N.J.S.A. 9:2-2Here, Plaintiff’s application makes clear that the children presently reside in New Jersey, they have been removed unlawfully and therefore the children are firmly subject to the jurisdiction of New Jersey. As such, N.J.S.A. 9:2-2 is applicable, and bars Defendant from fleeing the State without Plaintiff’s permission. Furthermore, N.J.S.A. 9:2-2 also authorizes a parent to file an application to restrain the other parent from fleeing the State with the minor children.  As such, the Plaintiff is proceeding under a settled legal right and accordingly the Court should enter an Order requiring the immediate return of the children to New Jersey and the surrender of the minor children’s passports to the Court so that they may be held.

 “Uncontroverted Material Facts”

It is uncontroverted that the minor children were taken to California without Plaintiff’s authorization and that they are not being returned to New Jersey, their rightful home. The children are residents of New Jersey and therefore subject to the jurisdiction of New Jersey. Furthermore, it is also uncontroverted that there is a legitimate threat of Defendant fleeing to Egypt with the parties’ minor children, as she has taken their passports with her to California. Finally, it is uncontroverted that the Plaintiff was opposed to the children being taken to California and he fears that the Defendant will leave the country with the parties’ children without Plaintiff’s consent.

 “Balance of Hardships”

            Concerning the balancing of hardships mandated by the final factor, such a balance weights in favor of the Plaintiff’s application. The Plaintiff requests that Defendant return the children to New Jersey, that she surrender their passports, be prohibited from obtaining new passports on the minor children’s behalf and that the children’s names be added to the Children’s Passport Issuance Alert Program, pending further Court Order. The prayer for relief is not intrusive, nor unduly burdensome. Rather, the Plaintiff seeks to maintain the status quo. Should the Plaintiff’s application be denied, the possibility that the Defendant flees to Egypt with the minor children, or continues to keep them in California is very real and would likely result in the minor children being lost to their father forever. As the harm to the Defendant is minimal, while the harm to the Plaintiff is significant, the balance weighs in favor of granting the Defendant’s application. Defendant cannot be deemed harmed by such a temporary change, as New Jersey is the children’s home, and provided that Defendant gives this matter her prompt attention, this issue can be heard quickly. There is no relief sought herein that, if granted, cannot be undone with no harm if it turns out that the facts do not support the granting of relief.

CONCLUSION

For the foregoing reasons, it is respectfully requested that the Court grant Mr. Does’s Order to Show Cause in its entirety.

Respectfully submitted,

EDWARD R. WEINSTEIN, ESQ.