This section contains the nature of the case and procedural background.

M and F were married in New Jersey in 1985. They later moved to California where they adopted two children. In 1996, M and F separated; M moved back to New Jersey with the children to be near her family, and F remained in California. M sued F for divorce in New Jersey; a final judgment was entered on May 1, 2000. The parties agreed to joint legal custody of the two children. M was the parent of primary residence and F the parent of alternate residence. F was to have 'reasonable and liberal parenting time with the children' whenever he was able to come to New Jersey, which he frequently did. M had physical custody of the children on alternate holidays. They also agreed that if they resided in the same vicinity during a holiday, they would share holiday time 'so that the children [would] be with both parents on those days.' F married D in 2000. They rented a home in Brick, New Jersey, where they lived with D's young daughter S.F., who had been adopted by F, and D's eighteen-year-old nephew, Matthew Aronson. After he moved to New Jersey, d's parenting time was increased by agreement. After visitation on Christmas, 2000 M called F's home; the phone lines had been disconnected. The home was deserted. M went to the police and filed a missing children report. Police discovered evidence of intentional flight from the United States. F under the pseudonym John Kaliczak signed a contract to purchase a boat. D, Aronson, and S.F. received passports, with an intended destination of New Zealand. The date of travel was to be December 23, 2000. F later obtained birth certificates for J.K. and O.K., and they requested and received medical records for the three children. D and F sent letters to their respective families, informing them that they had taken the children and intended to flee to a jurisdiction friendly to their position. Eventually, their boat became disabled. They were detained by the Coast Guard and later arrested. F, D and Aronson were indicted on various counts of kidnapping and interference with custody. D was and sentenced to jail. She is on parole. D appealed and lost at the appellate level on her consent defense and appealed again. At issue in this appeal is whether a stepmother who removes her stepchildren from the state with the consent of their father (her husband), but without the consent of their mother, is guilty of non-consent kidnapping under N.J.S.A. 2C:13-1.

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