Paternity and Rights to Parent in NJ

There is a presumption of paternity afforded to a man whose wife has a child during the parties marriage, even if the woman is artificially inseminated medically with the sperm of another donor in order to conceive. This presumption may be inaccurate and sometimes the truth is not discovered until later in the life of the child. A man or woman seeking to establish paternity should do so as soon as possible. In the event paternity is established through DNA testing there are certain legal rights and responsibilities which attach. Those rights and responsibilities also attach in the event of presumptive parentage. This means that if a man raises a child as his own from birth, whether he is the father or not, the rights and responsibilities of parentage will attach. This means whether you are married, live together or live separately but raise a child together the rights and responsibilities of parentage will attach to the male. As the child grows, so does the psychological bond between father and child and there is a presumption that termination of the bond between father and child will not be in the child's best interests. The emotional well being, as well as physical well being, of a child is paramount in the eyes of the court and the child is to be protected first and foremost. For the mother this means if the man presumed to be the father is not actually the biological father and the biological father establishes paternity it will be difficult to sever the relationship and rights between the presumptive father and the child, even though the biological father wishes to participate as the child's parent. It also means that the mother will not be delayed by paternity testing in the event the presumptive father wishes to terminate any child support he is providing the mother on behalf of the child and will be able to proceed directly to court to establish court ordered child support. For the father the presumption of paternity means if the mother wishes to terminate your parenting time with the child and you are not actually the biological father, you will still have certain rights to see the child you have been raising as your own, even if the biological father appears and is seeking custody or parenting time. This also means that the presumptive father will be required to support the child. Additionally, the child will likely be able to inherit from the estate of the father upon his death, whether parentage is presumptive or actual making it a hotly contested topic by families who have never believed parentage of the father to be accurate. If you are a parent questioning the paternity of a young or unborn child you should seek to establish paternity immediately. If you believed to be the father of a child, or you are a mother who believed the presumptive father was the biological father, and have learned this is not true you should immediately seek and experienced family attorney immediately. Additionally, if you recently learned you are the parent of a child you were unaware of and wish to participate in that child's life, you should seek an experienced family lawyer immediately. The emotional well being of the child is paramount but your rights and emotional needs as a parent are important as well and must be protected. For more information on family, matrimonial or same-sex rights to parent, child support, custody or spousal support/alimony matters in New Jersey visit HeatherDarlingLawyer.com.

Consideration of Trust Income in NJ Alimony Calculations

When a Trust is created the intent of the individual creating the Trust, the Grantor, should dictate the manner in which the Trust operates through the actions of the Trustee who administrates the Trust. When a family court is considering an award of alimony to either party, there are many considerations which must be made, one being the marital lifestyle and another being the assets available to either party to support themselves. In the event that the Trustee makes distributions to the beneficiary, in this example, a party to the divorce, in the Trustee's sole discretion and without the influence of the beneficiary, the Trust is less likely to be considered an asset of the spouse in the calculation of alimony. In a recent case, Tannen v. Tannen, the Trustee used trust funds to pay many marital expenses including the children's private school tuition, the cost of a housekeeper, real estate taxes and home renovations. In spite of the use of Trust funds for marital expenses, the Grantor's intent was clearly that the Trustee have discretion to make those, and any other, payments on behalf of the beneficiary spouse rather than to make those obligations in support of the beneficiary spouse. In the event a Trust is created to provide a steady income stream for the support of a party to a divorce, such Trust income would certainly be considered by the court in making a determination of alimony. A divorce has serious financial consequences for both parties and should not be taken lightly. If you are considering a divorce, you should have an experienced matrimonial attorney at your side to guide you through the matter and protect your best interests. For more information on divorce, alimony/spousal support, child support, custody, parenting time, post-judgment modification or same sex dissolution in New Jersey visit HeatherDarlingLawyer.com.

Application of Megan's Law to Juvenile Offenders in NJ

In the fall of 2011, two young boys in Morris County engaged in the conduct of placing their exposed buttocks on the faces of two other young boys with, what the Court found to be, the purpose to humiliate and degrade. Although the offense was certainly improper, it was likely unintended by the assaulting boys, to be of a sexual nature. Nonetheless, the boys committing the act were then subject to potential lifetime registry as Megan's Law offenders. Juveniles are still developing socially and often do not consider the gravity of their actions toward others. The consequences of being found guilty or accepting a plea to which Megan's Law applies are grave. In the case of a juvenile, they will be subject to registration on the Megan's Law registry for life which will limit their opportunities relating to education, careers and even social status. When Megan's Law is applicable there is a right to a jury trial due to the punitive nature of the law. The criminal justice system is comprised of various components ranging from rehabilitation to punishment and juvenile justice has historically leaned toward rehabilitation. Under the New Jersey juvenile justice code, a juvenile has all the same defenses and rights guaranteed to criminal defendants under the Constitutions of the United States and New Jersey except the right to indictment, the right to trial by jury and the right to bail. The restrictions placed on the rights of juvenile defendants stem from the rehabilitative nature of juvenile sentencing. When a juvenile is subject to the punitive nature of Megan's Law and its lifetime effects, the question becomes whether the rehabilitative aspect is replaced by a punitive aspect which should entitle the juvenile to the right to a jury trial even when seeking trial as a juvenile. In the Interest of A.C., the New Jersey Appellate Division recently held that the application of Megan's Law does not entitle a minor to a jury trial in a juvenile case. If a juvenile is charged with a crime, the disposition of the charges can change his or her future. It is critical for any juvenile charged with a criminal offense to seek an experienced criminal defense attorney immediately to begin protecting their rights and their future. For more information on juvenile offenses, sex-offenses or other criminal charges in NJ, visit HeatherDarlingLawyer.com.

Child Custody in NJ Same-Sex Dissolution Matters

A NJ case currently in the spotlight is the Matter of the Parentage of a Child by T.J.S. and A.L.S. Presently, the law confers automatic parental rights to a woman who carries a child or to a child who has her DNA and there is a presumption of paternity for the father of a child born to his wife during the marriage. Unfortunately, things are not so simple for same-sex couples who are terminating relationships in which there are children. Many same-sex couples have had children during the course of their relationship without, or prior to, entry into a civil union. The rights of either the birth mother or the father who provided the sperm have been litigated in the NJ courts and established. The law relating to the partner who is the non-biological parent is still evolving as same-sex marriage, and the associated rights, become a more prevalent issue in legislation as well as litigation. The law permits the non-biological partner to adopt the child without terminating the rights of the biological parent and there are presumptions when the child is born following the couples' entry into a civil union. In the case of In re Parentage of Robinson, the Court issued a pre-birth ruling establishing maternity with the non-biological mother as the second parent through application of the artificial insemination statute when both mothers sought this result. A same-sex partner who is not the biological parent but acted as the child's parent in a family relationship does have parental rights. When the parties have had a child prior to, or without entering into, a civil union and the parent who is the non-biological partner wishes to exercise legal rights to custody and parenting time following dissolution of the relationship, the award of custody and parenting time must ultimately turn on the same standard as applied in a dissolution of marriage, the best interests of the child. For more information on same-sex dissolution, divorce, child custody, alimony/spousal support, child support or other family law issues visit HeatherDarlingLawyer.com.

Search, Seizure and Suppression of Evidence in NJ

The Courts of New Jersey hear motions to suppress in many criminal cases. In 3 recent cases involving guns in Passaic County, drugs in Essex County and a DUI arrest in the town of Mt. Olive in Morris County, the state has found that there were applicable exceptions to the otherwise illegally obtained evidence and denied the motions to suppress. In State v. Love, the court held that a handgun found in the trunk of a suspect in a search conducted after an empty gun holster and empty magazine were illegally seized from the vehicle and the suspect consented to a search of the vehicle only after being advised he would be detained until such time as a warrant was obtained if he failed to consent. The court held probable cause did exist for a warrant and, even though none was obtained, the search was upheld and utilized the "inevitable discovery" exception to refuse to suppress the evidence. In State v. Dillard, the court held that drugs discarded by a fleeing suspect and a shotgun found in the house into which the suspect fled were includable under the "hot pursuit" exception. In State v. Maclay, the court held that a DUI arrest was valid in spite of the fact that the suspect was stopped only after a call was made by an off-duty police officer to an on duty police officer alerting him of a possible drunk driver. The court found there was a reasonable articulable reason for the stop. Motions to suppress evidence are difficult but possible if the appropriate facts exist. If you are charged with a crime in New Jersey you should immediately hire an experienced criminal attorney who will immediately review the facts of the case and determine how to best help you to defeat the charges against you. For more information on illegal searches, motions to suppress or criminal matters including drug (CDS), gun, assault, domestic violence, burglary, theft, shoplifting and DUI/DWI in NJ visit HeatherDarlingLawyer.com.

End of "Entitlement" to Increase in Value of Pre-Marital Residence of Spouse in NJ Divorce?

On January 30, 2012 a bill was introduced which would substantially modify equitable distribution in dissolution matters by eliminating the "entitlement" of a spouse moving into the pre-marital home of the other spouse from sharing in any increased value of the house at the time of divorce without making a showing of substantial contribution to the increase in value. Notably, contributions to payment of mortgage, taxes, insurance, utilities, routine maintenance or repairs will not be qualify as a contribution to an increase in value under the terms of the bill.
This bill, if passed, could prove especially effective in protecting individuals with the majority of their net worth in their house, parties in second marriages with children from a first marriage they wish to protect financially and seniors entering into a marriage, civil union or domestic partnership who will not have time to recoup lost equity.
This bill, still pending, was introduced by Alison Littell McHose, Assemblywoman representing Morris, Sussex and Warren Counties in the State of New Jersey.
For more information on equitable distribution, child support, spousal support/alimony, civil union dissolution, divorce or post-judgment modification in NJ visit HeatherDarlingLawyer.com.

Racial Profiling in NJ Criminal Arrests

In State v. Boyd, a man convicted of drug charges sought the arresting officer's personnel records following a traffic stop for which he felt racial profiling was the basis. Boyd was pulled over in Sussex County, New Jersey on Route 80 for what the officer stated as "erratic driving". Upon approaching the vehicle the officer believed he had reason to fear for his safety and, upon Boyd's opening the car door, after first refusing multiple times to open the door, the officer sprayed Boyd with pepper spray and pulled him out of the car. A search of Boyd's person revealed 250 bags of cocaine and he was arrested.
Boyd did not feel the stop was based on "erratic driving" based on comments by the officer such as I am "not your bro." Boyd sought the officers personnel records in an effort to determine whether there were similar prior incidents in his jacket. In State v. Kennedy, the New Jersey Court held that discovery of such records was permitted if the defendant could establish a "colorable basis" for the discrimination claims. In this case, there was a prior civil action pending against the officer
Although major reforms have occurred in New Jersey to fight racial profiling by police, it still exists and no area is immune. Whether the incident occurred in Bergen, Morris, Essex, Hudson, Passaic, Somerset or Middlesex county, if you believe you were stopped or arrested as a result of racial profiling, you should consult an experienced criminal defense attorney immediately to determine whether your rights have been violated and what you can do to protect yourself from continued prosecution for the charges you are facing based solely on your race.
For more information on criminal charges in NJ, visit HeatherDarlingLawyer.com.

NJ DUI/DWI and Drug Recognition Experts (DRE)

A drug recognition expert (DRE) is an officer who been certified to determine, by observation, whether an individual is under the influence of alcohol and/or drugs. This officer is susceptible to error, as we all are. The officer may be distracted, tired, have personal issues weighing on his or her mind or any other of a number of factors which may contribute to an erroneous finding of under the influence. If you are convicted for DUI/DWI in New Jersey based on the report of a DRE there may be many challenges available to have the charges against you dismissed. Immediately seek an experienced lawyer to represent you.
What a DRE does:
The DRE evaluates the persons appearance and behavior, measures vital signs and automatic responses to certain stimulus; evaluates the person's judgment through the use of certain specific psychological tests.
A DRE makes 3 determinations, typically post-arrest at the police station:
1. Is the person impaired? If so, are they able to operate a vehicle safely? If not;
2. Is the impairment due to injury or illness or is it drug-related? If it is drug related;
3. What type, or combination, of drugs caused the impairment?
There is a 12-Step DRE protocol to be followed in making assessments about the accused:
1. Administration of the Alcotest. Typically by the arresting officer, before contacting the DRE, to determine whether alcohol caused the impairment.
2. Interview by the DRE of the arresting officer to obtain background information. This is now second-hand information being used to evaluate a serious matter.
3. Preliminary Examination including taking the accused's pulse and an interview of accused as to existing injuries or other conditions which may alter results as well as inquiry into other recent events. The DRE is constantly observing the accused at this time for signs of drug use. A subject who is nervous or tired can certainly be mistaken for under the influence.
4. Eye Examination to determine eye movement patterns as compared to an individual not under the influence.
5. Divided Attention to Physical Tests including a balance tests, walk and turn test, one leg stand and finger to nose. In addition to the tests themselves, there is an instructional component similar to a "Simon Says" game played by children where instructions are offered for you to proceed but if you proceed before "Simon Says" you are "out."
6. Vital Signs and Secondary Pulse tests include blood pressure, temperature and pulse. These may all be affected by stress nervousness, diet and prescribed or over-the-counter medication.
7. Dark Room Examination measures the pupils under different lighting conditions and examines the nostrils for signs of drug ingestion.
8. Examination of Muscle Tone for rigidity or flaccidity. These may be affected by something as simple as stress, recent illness or a recent workout.
9. Check for Injection Sites and 3rd Pulse. If you are nervous or stressed about being accused, recently had a flu shot, blood test or gave blood a positive finding may result where none exists.
10. Subject's Statements and Other Observations are considered following a reading of the Miranda warnings if not previously read. The officer typically asks a series of questions regarding drug use which a nervous suspect may answer without thinking and offer what sounds like a confession to the current incident when referring to past drug use.
11. Analysis and Opinions of the Evaluator in which the DRE will indicate the categories of drugs possibly causing the variations from "normal" physiology observed by the officer during the test. This calls for heavy reliance on training and experience which is as subjective as this entire procedure.
12. Toxicological Examination in which urine, blood and/or saliva are taken from the accused and sent to a lab for testing.

If the primary evidence against you in a DUI/DWI matter is officer observation you should take advantage of the many opportunities available to challenge the finding. Hire an experienced attorney immediately and to begin going over your case.
For more information on DUI/DWI, drugs in a motor vehicle or other criminal matters in NJ, visit HeatherDarlingLawyer.com.

Permanent License Suspension for 3rd DUI/DWI in NJ

Currently pending in the Assembly Law and Public Safety Committee is a bill requiring, without exception, the permanent suspension of the driver's license of anyone sentenced to a 3rd under the influence charge. Currently a 3rd DUI requires a 10 year loss of license.
N.J.S.A. 39:4-50 criminalizes the operation of a motor vehicle by anyone under the influence of alcohol or CDS with a blood alcohol concentration (BAC) of .08% or greater as determined by field sobriety tests, blood tests or the Alcotest, formerly Breathylizer, device. Determination of under the influence of CDS can be proven by examination by a Drug Recognition Expert (DRE) or by testing the urine or blood of the accused for the presence of marijuana, heroin, cocaine, meth, percoset/oxycotin or other controlled dangerous substances.
Throughout New Jersey, counties, municipalities and State Police are working together to enforce DUI laws in an effort to reduce fatalities on the roads. In both northern and central, NJ the counties of Union, Morris, Essex, Bergen, Passaic, Warren, Hudson, Somerset, Middlesex and Sussex counties have extensive programs in place to stop DWIs through the use of patrols, sobriety checkpoints and other means. If you are charged with DUI/DWI in New Jersey, you should immediately seek an experienced DUI/DWI attorney who will examine the facts and ensure your rights are protected beginning with determining whether probable cause existed for the stop, or the checkpoint was properly run, reviewing reports as to any field sobriety tests, motor vehicle searches or drug recognition expert (DRE ) evaluations, ensuring proper Miranda warnings were given, the Alcotest device records were complete and the operator was certified and used the machine properly. The attorney will also know how to review any records pertaining to blood or urine testing, the chain of custody of any blood or urine samples and the lab reports provided.
For more information on DUI/DWI, drugs in a motor vehicle or other criminal charges in NJ, visit HeatherDarlingLawyer.com.

NJ Drug Court Pleas

The Drug Court program in New Jersey, a diversionary program for defendants facing charges for heroin, cocaine, Escasty, methamphetamines, xanax, vicodin, percoset, percodon, fentanyl, adderall, nembutal, ritalin, dexedrine, valium, suboxone, diazepam, roxycontin, oxycottin and other addictive substances to receive help in dealing with their problem, has had an amazing success rate of 75% effectiveness for those completing the program. The program offers defendants who cannot prove themselves innocent an opportunity to enter into a rigorous program with a limited term inpatient treatment program followed by very active participation with probation. It also offers prosecutors an opportunity to "clear cases" by giving defendants an opportunity to avoid both prison and the rigors of a trial when the defendant does not have the weight of the evidence in their favor.
Unfortunately for some defendants, they are known within "the system", or to a particular prosecutor for one reason or another, and the prosecutor on their case is not particularly willing to give them the opportunity to enter Drug Court. Prosecutorial discretion is a factor and the prosecutor can both decline and fight against Drug Court for a particular defendant. A defendant still has the opportunity to enter into a plea and, if he or she is eligible, file a Motion to be accepted into Drug Court at sentencing over the prosecutor's objection.
One danger of a Drug Court plea is that a prosecutor may successfully argue against a defendant's entry into the program at sentencing and defendant will be sentenced to the prison term associated with the underlying offense. If this occurs, because the defendant was never promised drug court in entering into the plea, the defendant will not be able to withdraw the plea.
No matter how good an alternative it may sound, a defendant should always consult with an experienced criminal defense attorney before taking a plea. Recently, in State v. McMillan, defendant was promised the opportunity to apply for Drug Court in a plea agreement and accepted the plea only to learn at sentencing that he was "per se ineligible" for Drug Court. Although defendant was represented, his lawyer was not aware the defendant was barred from applying to Drug Court and did not raise the appropriate argument in the trial court upon learning this fact. The defendant appealed and the appeal was denied. McMillan now has the opportunity to seek post-conviction relief but is incarcerated in the meantime. When facing criminal charges, make sure you have the right representation to avoid any further surprises.
For more information on Drug Court or criminal charges in New Jersey, visit HeatherDarlingLawyer.com.

Family Court Fairness in NJ

In L.A. v. P.Q., the New Jersey Court upheld the findings from a last minute hearing with no prior notice to the parties. The Court's reasoning was that, although the parties may have been unprepared to present testimony, neither the mother nor father objected to this hearing in regard to custody of their minor daughter. Additionally, the Court found that the mother, although her attorney was present, failed to show how this hearing without notice or ability to prepare was prejudicial to her rights.
In the presence of her attorney, without objection to the Court by her attorney, the mother fully participated in providing testimony when left with the decision to provide testimony without the benefit of preparation or simply refuse to participate in the last minute hearing at the risk that the Court would certainly find in favor of the child's father without any testimony from the mother.
Although lawyers are obligated to act on their client's behalf, the Courts must be always mindful that they "exist for the sole purpose of rendering justice according to law. No eagerness to expedite business, or to utilize fully the court's time, should be permitted to interfere with our high duty of administering justice in the individual case.” State in Interest of D.J.C., 257 N.J.Super. 118, 607 A.2d 1371, N.J.Super.A.D. (1992).
Having an experienced matrimonial attorney by your side when facing a divorce/dissolution, child custody matter, post-judgment modification of child or spousal support is critical to ensure your issues are properly represented and you are afforded due process. Your financial future, parenting time and ability to get on with your life are at stake in such matters and you need someone in your corner who knows the law and how to protect your rights. For more information on family, matrimonial or civil union matters in NJ, visit HeatherDarlingLawyer.com.