Friday, November 30, 2012

U.S. Supreme Court Justices Meet Today to Consider Same-Sex Marriage

The U.S. Supreme Court Justices will meet today to decide whether they will accept any of 10 appeals pending before them regarding same-sex marriage. If any of the appeals is accepted, the argument will be whether there is a fundamental constitutional right to gay and lesbian marriage. Although six states have approved same-sex marriage and other states have approved various forms thereof which do not afford all rights associated with heterosexual marriage, there is presently no recognition by the federal government of same-sex marriage. Lack of recognition of same-sex marriage by the U.S. government deprives gays and lesbians of the benefits of obtaining spousal social security benefits, pension benefits, family medical leave protection, filing joint federal tax returns and bankruptcy benefits. Deprivation of these benefits to those in long-term, monogamous same-sex relationships can have devastating results over a lifetime. If any of the appeals is accepted, no decision will likely be made until the middle of 2013 but same-sex partners around the country await the Justices decision on the appeal today. For information regarding same-sex law in New Jersey, including civil unions, domestic partnerships, adoption, dissolution, custody, child support, support agreements, property division or other legal concerns of gay, lesbian, bisexual, transgender couples in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Wednesday, November 28, 2012

DWI Acquittal Results in Dismissal of Vehicular Manslaughter Case In NJ

Defendant was charged with DWI, vehicular manslaughter, possession of marijuana, paraphernalia, reckless driving and CDS in a motor vehicle. Defendant was acquitted of the DWI but was found guilty of all charges. Defendant appealed the vehicular manslaughter charge because the Model Jury Charge did not instruct that the DWI acquittal needed to be taken into account. The New Jersey Appellate Court held that the erroneous instructions relative to the DWI constituted reversible error. The Appellate Court also found that instructing the jury on the concept of "recklessness" without comparison to the concept of "negligence" was erroneous. The conviction for vehicular manslaughter was vacated. DUI/DWI in NJ is not taken lightly in any case and can have significant implications in related matters such later personal injury or vehicular manslaughter charges. If you are charged with DUI in NJ you should seek an experienced attorney immediately to protect your rights. For more information on Driving While Intoxicated, reckless driving or other serious municipal court/traffic matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Saturday, November 24, 2012

Child Support Modifications Are Not Retroactive in NJ

In a post-judgment motion for modification of child support the court imputed plaintiff, a nurse with no demonstrated disabilities income of $65,000, for purposes of calculating child support and imputed defendant, a painter, $35,000 for purposes of calculating child support. The court modified child support according to the incomes imputed and made it retroactive to a date preceding the filing of defendant's modification motion. The New Jersey Appellate Court reversed the retroactive modification as contrary to New Jersey Statue 2A:17-5:6.23a which limits the modification of child support to the date upon which a motion for modification is filed. The court also reversed the imputation of income to defendant because it was not supported by his case information statement. If you are seeking or fighting a change in child support, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on child support, custody, parenting time/visitation, adoption, dissolution of a civil union, marriage or domestic partnership, modifications, alimony, palimony or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Wednesday, November 21, 2012

Conviction For Armed Robbery While Unarmed in NJ?

This case begins like a good joke: An unarmed man walks into a bank and hands the teller a note saying "I've got a bomb- hand over the money." Only in this case the bank was real, the man was real, the teller was real and the penalties are real. The only thing that was not real was the bomb but the man was convicted of first-degree armed robbery by simulation and was sentenced to 14 years. The New Jersey Appellate Division was more forgiving and reversed the conviction as it seemed unreasonable to them, given the circumstances, that the teller could believe the man had a bomb. Their reasoning is that a conviction would require conduct or something indicating the weapon alleged was present. The prosecutor's office argued that bombs are sophisticated these days and have been hidden in shoes and undergarments to be later identified on airplanes and that, failure to see a large ticking device no longer means a bomb is not present. This very well may become an issue ripe for change in the future If you are a defendant in an armed robbery case, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on robbery, armed robbery, burglary, theft, shoplifting or other criminal law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Monday, November 19, 2012

Past Due Support Can Affect Your NJ Business

If you are obligated to pay child support to a former spouse or domestic partner you, and your business partners, may be shocked when your business interest is attached by them. Although they may only attach your interest, a former spouse or partner who obtains a judgment against you for past due child support can affect your business by tying it up in litigation and creating strife among you and the other members of your limited liability company (LLC). New Jersey Statute 42:2B-45 allows a judgment creditor to attach the interest of a debtor in any limited liability company in which they are a member. This judgment will not attach to the interest of any other LLC members but litigation as to what your specific interest in the LLC is can create enough tension to result in dissolution, or your being forced out of the LLC by the other members. If you are seeking to collect or defending against collection of a large amount of past due child or spousal support you should contact a family law attorney with small business divorce experience immediately to protect your rights. For more information on child support, spousal support, palimony, alimony, divorce, dissolution of civil union or domestic partnership or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Friday, November 16, 2012

Confession of a Juvenile Sex Offender Without Parents is Admissible in NJ

The Union County Prosecutor's Office contacted a juvenile's parents regarding an alleged sexual assault committed by the 13 year old boy, A.W. The child's father, whose first language is Spanish, voluntarily brought A.W. to the Union County Child Advocacy Center for an interview. The standard for confessions of a juvenile under 14 is that they are presumed inadmissible unless a parent or guardian was unwilling or unable to be present. This interview began in the presence of the father and discussion was in Spanish because the father speaks very little English. As the interview continued, A.W. offered his denials of any sexual conduct with the victim in Spanish but began to provide the detective conducting the investigation information in English. The detective then advised that even if the allegations were true, A.W. would likely receive therapy but not face juvenile detention or jail. The detective next began making reference to the domineering size of the boy's father and the fact that the father's presence may render A.W. fearful of consequences. In English, A.W. offered to speak candidly with the detective if his father was not there. The detective explained to the father, in Spanish, that A.W. wished to speak with her without his father's presence and presented the father with a waiver of his right to be present upon which she required his signature before he left the room. Once alone with the detective, A.W. admitted to touching the victim's vagina. The confession resulted in a charge of aggravated sexual assault as a juvenile, a conviction, 3 years of probation and Megan's Law, N.J.S.A. 2C:7-1 to 11 and 19. A.W.'s motion to suppress the videotape of the interview was upheld by the N.J. Supreme Court on the grounds that the father willingly and voluntarily left the room. If a juvenile is charged with a crime, the disposition of the charges can change his or her future by prohibiting them from entering certain schools, fields of employment and, in the case of Megan's Law offenses, certain residences or neighborhoods. It is critical for any juvenile charged with a criminal offense to seek an experienced juvenile defense attorney immediately to begin protecting their rights and their future. For more information on juvenile offenses, sex-offenses, Megan's Law provisions or other criminal charges in NJ, visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Tuesday, November 13, 2012

Emancipation Event May Be Defined By Parties

A father’s motion to emancipate his son was remanded to the trial court for a hearing as to the parties’ intent. The New Jersey Appellate Court held that the parties could define an emancipation event and each party’s intent at the time the agreement was formed required consideration by the trial judge. The Appellate Court further held that, in considering this emancipation request of a 19 year old taking only one class at Bergen Community College and estranged from the father seeking the emancipation, the Family Part Judge could not interpret the parties’ Marital Settlement Agreement without a plenary hearing. The Appellate Division set forth the factors the trial court must way in making a decision as to whether continuing child support at the agreed upon, or existing, level is equitable. The factors include whether any change in income is permanent or temporary, whether any reduction of income on the part of either party is in bad faith, whether any change in income was voluntary and the obligor's ability to pay at the time of the motion for reduction. If you are seeking or fighting a change in child support, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on child support, custody, parenting time/visitation, adoption, dissolution of a civil union, marriage or domestic partnership, modifications, alimony, palimony or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Sunday, November 11, 2012

NJ Senate Passes Mandatory 25 years to Life for Aggravated Sexual Assault of Child Under 13

On October 4, 2012 the New Jersey Senate passed "The Jessica Lunsford Act". This Act modifies N.J.S. 2C:14-2 to require a mandatory minimum sentence of 25 years for the aggravated sexual assault of a child under 13. The intent of the sponsors of the bill is to punish those committing the "repugnant" crime of sexual assault of a young child by denying such "monsters" the opportunity to re-offend. The Legislation was passed 7 years after the brutal rape and murder of 9 year old Jessica Lunsford of Florida. The bill was sponsored by Senators Steve Oroho (R-Sussex), Tom Kean, Jr. (R-Union) of and Diane Allen (R-Burlington). The "Jessica Lunsford Act" is now before Governor Chris Christie for final approval. Sex offenses bear penalties which will affect you for the rest of your life, even if you reach a plea agreement that may seem favorable at first glance. If you have been charged with a sex crime you should consult an experienced criminal defense attorney immediately in order to protect your rights. For more information on criminal law matters, including municipal court matters, in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Friday, November 9, 2012

Must You Provide A Urine Sample in A NJ DUI Arrest?

On July 2, 2012 the New Jersey Appellate Court heard the case of State v. Verpent (A-3807-10T4). Verpent was found guilty of DUI and challenged the failure of Bergen County Superior Court Judge Jerejian to suppress the lab results from his urine sample. The Appellate Division upheld prior cases requiring the submission of urine and its use in proving Driving Under the Influence Cases. Once an officer's observations lead to a conclusion that an individual is under the influence of intoxicants, the officer may request the performance of field sobriety testing in the event that the officer believes the individual may safely perform the tests. If the field sobriety tests provide further evidence of intoxication, the individual will be asked to provide a breath sample into an Alcotest device. If the individual's blood alcohol level (BAC) is under the legal limit or non-existent and the officer believes drugs may be causing the inability to perform tests, a Drug Recognition Expert (DRE) will then perform further testing along with obtaining urine and sometimes blood samples from the accused. N.J.S. 39:4-50.2(a) requires all drivers to consent to submission of urine and blood samples upon an officer's request. Although defendant challenged the taking of his urine without a warrant, the Court held that the officer's observations gave rise to probable cause to arrest and exigent circumstances justifying taking of a urine sample without a warrant under the theory that delay could result in "destruction of evidence." Although urine screens are not always accurate and the results are subject to challenge, the NJ courts have long required defendants in driving while intoxicated matters to provide urine specimens and there is "no federal constitutional right to prevent being required to giving a urine sample". State v. Malik (534 A.2d 27 (App. Div. 1987) DUI/DWI in New Jersey is not taken lightly and if you are arrested for these charges you should seek an experienced attorney to assist you in your defense. Selecting an attorney who knows your rights and is able to avoid a conviction based on mistakes by officers in their attempt to prove your guilt is the difference between keeping or losing your license, as well as a host of other problems that come with a refusal conviction in NJ. If you are charged with DUI contact an attorney immediately to protect your rights. For more information on Driving Under the Influence or other serious municipal court/traffic matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Wednesday, November 7, 2012

More Relief For Child Support Obligors in NJ

In a case where the child support obligor demonstrated to the court an obvious change of circumstances, the Family Part judge was required to conduct a hearing as to the details of the parties’ current circumstances. Due to a decline in the residential real estate market, the obligor suffered a significant and, likely long term change in circumstances. During that same time, the obligee had a large increase in income which was also likely to be a permanent situation. The Family Part judge denied the obligor the opportunity for a plenary hearing when deciding the matter. The New Jersey Appellate Division instructed that when a party seeking relief in the courts makes an obvious showing, otherwise known as a prima facie showing, of changed circumstances the trial judge is then required to fully consider the matter. If you are seeking or fighting a change in child support, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on child support, custody, parenting time/visitation, adoption, dissolution of a civil union, marriage or domestic partnership, modifications, alimony, palimony or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Monday, November 5, 2012

Warrantless Search Without Danger Exceeds Community Caretaking Role of Police in NJ

Following receipt of an anonymous call about domestic violence, the police appeared at a New Jersey residence to determine whether there was danger to anyone. Upon arrival, police were met at the entrance to the apartments by the alleged victim. The alleged victim advised the police there were no problems at the residence and she was not in danger. The police found the circumstances to be curious, especially the fact that the alleged victim was at the door waiting for them, rather than inside with the other occupants. In order to determine whether the alleged victim was truly safe, the police insisted upon gaining entry into the apartment and were admitted into defendant's apartment by the parties' 11 year old child. Upon entry into the apartment, the police saw no signs of danger or unrest and no weapons were observed in plain view. At that time, rather than accepting that there was no actual danger present, the police violated defendant's rights by undertaking a warrantless search of the premises. The illegal search revealed a handgun under a pillow near the defendant and he was charged with a weapons offense. Only in the case of an emergency requiring immediate action by the police is a warrantless search permissible. The New Jersey Supreme Court held that this was an illegal search in violation of defendant's rights to enjoy the protections of the constitution relating to a person's home as offering a reasonable expectation of privacy from intrusion. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter. If you face criminal charges and believe that evidence against you was illegally obtained by police, you should consult an experienced criminal law attorney immediately in order to protect your rights. For more information on search and seizure, illegal search, warrantless search, domestic violence, anonymous tips or other criminal law matters, including municipal court matters, in New Jersey visit HeatherDarlingLawyer.com.

Saturday, November 3, 2012

Gay NJ Man May Relocate to Gay Unfriendly State With Adopted Child Against Other Parent's Objections

In the recent case of A.G. v. R.R, (BER-FM-02-2258-09) the Bergen County Court ruled that a parent of primary residence with good intentions cannot be barred from relocating with the child to a state hostile to lesbian, gay, bisexual and transgender (LGBT) marriage without a showing of prejudice to the rights of the other parent. In A.G. v. R.R., the child was adopted while the parties were living in New Jersey, although they never entered into a civil union or domestic partnership. Upon separation, the parties entered into an agreement affording primary custody to A.G. and permitted him to relocate with the child from New Jersey to New York so that A.G. could pursue lucrative job opportunities. Following an injury rendering A.G. unable to perform the theater jobs for which he was well paid in New York, he received a lucrative job offer from an Atlanta, Georgia television production company and filed a Motion in the New Jersey Superior Court, Family Part, to relocate the child to Atlanta. R.R. opposed the Motion on the grounds that a 2004 amendment to the Georgia Constitution prohibits same-sex marriage and recognition of marriages of same-sex couples performed in other states. Judge Thurber held that the Full Faith and Credit Clause of the United States Constitution would require Georgia to uphold custody and parenting time orders issued by the New Jersey Courts. Judge Thurber rationalized that, if Georgia is hostile to the parental rights of R.R., he has a judicial remedy in the New Jersey Courts which have an interest in seeing their orders upheld. The Judge was careful to note that there was no example of a Georgia court refusing to recognize the rights of out-of-state adoptive parents. If you or your former partner are seeking to relocate a child against the wishes of the other parent, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on adoption, child support, custody, parenting time/visitation, dissolution of a civil union, domestic partnership or marriage, modifications, alimony, palimony or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.