Pregnant Women Using Drugs Legally Can Be Charged With Child Abuse

The Division of Youth and Family Services (DYFS) is charging a New Jersey woman with child abuse for legally using methadone to assist with her drug recovery during her pregnancy. The defendant in New Jersey Division of Youth and Family Services v. Y.N. had a history of drug abuse following the death of her infant son in 2005. After learning she had become pregnant again, she sought addiction counseling from a Newark clinic. She began her methadone treatment in 2011, after notification by the clinic that the child would be born dependent on methadone. At the time of the child’s birth, the mother's methadone use was evident and DYFS charged the mother with child abuse and neglect. The defendant clearly did not perceive the consequence of losing her child would result from use of methadone administered legally by a clinic which faced no legal charges for the administration of methadone to the pregnant mother. The NJ Appellate Court chose to look past the mother's desire to seek treatment for herself and focused on the best interests of the child. The court's decision was that “harm to the child need not be intentional in order to substantiate a finding of abuse and neglect”. The mother made a conscious decision to use drugs and her desire to cease using upon learning of her pregnancy must be enough on its own as the use of methadone may cause harm to the child. If DYFS is involved in your relationship with your children, you should seek experienced legal counsel. For more information on protecting your rights if charged by DYFS, child support, child custody or other crimes in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.

Do You Need A Written Agreement To Get Palimony?

In order to get a court to award you financial support known as "Palimony" from your former lover, even if you lived together, verbal promises of support are not enough under the new law in New Jersey. You will need to show the Court a formal written "cohabitation" or "Palimony" agreement which addresses the division of property, support, the division of joint debts, possible custody and/or parenting time issues if there are children, as well as other relevant issues. The courts look to the 2010 amendments enacted by the state legislature to the "statute of frauds" (N.J.S.A. 25:1-5) which created the requirement that in order for a "palimony" promise or agreement to be valid in this state, it must be in a signed written document and entered into with the advice of independent counsel for both parties, much like a pre-marital agreement. If you are contemplating living with your significant other, as is becoming more popular in New Jersey, who has promised to continue to take care of you "forever," and you do not want to get married or enter into a civil union, you should enter into a formal written agreement to protect your future rights to support, and for both real and personal property, in the event you break up or in case your partner passes away. If you want to establish a formal "palimony" or "cohabitation" agreement in New Jersey then you should consult with an experienced NJ family lawyer. For more information about palimony agreements, cohabitation agreements, child custody, visitation, divorce, child support or any other type of family law matter in New Jersey please visit HeatherDarlingLawyer.com. This blog is for informational purposes only. It is not intended to replace the advice of an attorney regarding your specific matter.

Kinship Legal Guardianship Information to Caretakers Required in DCCP (DYFS) Matters

A Division of Youth and Family Services ("DYFS"), now known as the Division of Child Protection and Permanency (DCCP), Social Worker misinformed the caretakers, the child's maternal aunt and uncle, that Kinship Legal Guardianship was only available if the child was 12 years old and older. The Appellate Court held, in New Jersey Division Of Youth And Family Services v. H.R. and N.B., that the caseworker's legal misinformation had to be corrected and the caretaker given sufficient opportunity to consider if she wanted to pursue kinship legal guardianship or adoption after being provided with the truthful information. The matter involved a child under the age of the 12 who had lived with the aunt and uncle since May 2010 due to the birth mother and father's drug addictions. The maternal aunt stated on the record that she would allow the child's father to visit with the child if he demonstrated he was not using drugs and maintained his sobriety. She thought termination of the parent's rights was a drastic step but she also believed the child needed a stable home so she was willing to abide by "DYFS" plan for termination and adoption. The New Jersey law for termination of parental rights (N.J.S.A. 30:4C-15.1(a)) requires a showing that the court has considered alternatives to termination of parental rights. One alternative to termination of parental rights is kinship legal guardianship. The Appellate Court held that, while the other three sub-parts of the law were proven by "DYFS", such that (1)the child's safety, health or development has been or will continue to be endangered if the parental relationship continues; (2) the parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide for a safe and stable home for the child; and (3) termination will not do more harm than good, all of the criteria has to be proven by clear and convincing evidence to demonstrate that it is in the child's best interests. Therefore, the Appellate division reversed and remanded the matter back to the trial court to establish on the record evidence that the caretakers received the correct information about the differences between adoption and kinship legal guardianship and which option they chose considering the best interests of the child. If you are a parent and DCCP has contacted you or if you have been contacted by DCCP to act as a caretaker for a child you should consult with an experienced family law attorney to protect your rights. For more information about DCCP matters, termination of parental rights, custody issues, child support, divorce, dissolution 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.

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Religion and Education Decisions To Be made By Both Parents Regardless Of Custody

In all custody and parenting matters, the best interests of the child are to be considered ahead of all by the court. The best interests of the child also must prevail when the court is forced to decide disputes relating to major decisions in the child's life such as medical, educational or religious matters. In the recent case of Phillips v. Emerson, the parents were born and raised under different religions but neither practiced their religion during the marriage. When the parties divorced, Phillips was named the parent of primary residence and Emerson was named the parent of alternate residence. Phillips later remarried and began to participate more in religious activities with her new husband. Approximately 10 years after the parties' divorce, Phillips enrolled the parties' child in Catholic school without discussion with or consent from Emerson. Emerson raised issue with the court on the basis that the enrollment in Catholic school was intended solely as a means to further distance him from the parties' daughter due to his Jewish upbringing. The NJ Appellate Division held that a plenary hearing was required to determine what was in the best interests of the child and that neither party should unilaterally make a decision of such import. If you are seeking or fighting a change in custody, 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 or juvenile 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.

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Life Insurance Proceeds After Divorce

When going through the divorce process, the spouses may come to an agreement regarding support for a dependent spouse and/or a dependent child or children. A subsequent issue that has to be addressed is how to ensure the dependent spouse and/or dependent child or children are taken care of in the event of the death of the obligor spouse. Often, the obligor spouse agrees to maintain life insurance naming the dependent or dependents as beneficiaries for as long as the financial support obligation exists. The terms of the agreement can then be put into a formal written Property Settlement Agreement referred to as a PSA. What happens if the beneficiary designation on the policy does not comport with the Agreement? In the recent case of Thomas v. Thomas, the Appellate Court in its unpublished opinion considered the distribution of a life insurance policy where the named beneficiaries on the policy did not mirror the terms of the Property Settlement Agreement (PSA). The Appellate Division looked to the language of the Property Settlement Agreement (PSA) between the decedent and his ex-wife which was incorporated into their Judgment of Divorce when determining how the proceeds of the decedent's life insurance policy should be paid out. The Property Settlement Agreement contained spousal and child support provisions as well as a provision requiring the Decedent to maintain a life insurance policy naming the ex-wife as an irrevocable beneficiary for $500,000 so long as there is an alimony obligation and for each child of $125,000 until each child was emancipated. Subsequent to the divorce and prior to the decedent's passing, the decedent's two children were deemed emancipated therefore eliminating his obligation under the PSA to maintain the life insurance for the them. The obligor spouse passed away leaving a one million dollar life insurance policy. The decedent remarried and subsequently changed the beneficiaries on the policy so that his second wife would receive 60% of the proceeds while his ex-wife would receive 15% and his two children from the first marriage would receive 12.5% each. Problems arose when the ex-wife sought to claim $500,000 she believed she was entitled to pursuant to the terms of the Property Settlement Agreement (PSA) and the second wife sought to claim 60% ($600,000). The ex-wife filed a complaint with the court to ensure her claim. The second wife filed a counterclaim to ensure hers and subsequently filed a motion to reduce decedent's alimony obligation under the Property Settlement Agreement (PSA) which was later withdrawn. The second wife further claimed that the term of $500,000 was too much considering the amount of alimony decedent owed at death was less than when the Agreement was created and that the terms of the life insurance provision were automatically effective. She asked that alternatively she be awarded 71% of the 50% of the remainder of the proceeds if 50% was awarded to the ex-wife. She claimed that it reflected the decedent's intent that the children and her would share proportionally in the proceeds. The ex-wife claimed the ex-wife's motion was without merit and filed a cross motion which sought to enforce the terms of the Property Settlement Agreement (PSA) and requested that a constructive trust be utilized to protect her rights to the insurance proceeds. The two children cross-moved to enforce the decedent's beneficiary designation leaving them 12.5% of proceeds to each of them which would only leave the second wife with 25% of the 50% rather than the 71% she sought. The Trial Court ruled in favor of the ex-wife and denied the second wife's motion for reconsideration. The Appellate Court upheld the Trial Court's decision with regard to the ex-wife receiving her $500,000 as reflected in the Property Settlement Agreement (PSA) but reversed its decision as to the distribution to the second wife and the children. It held the remaining $500,000 had to be awarded in accordance with the decedent's intent per his beneficiary designation on the policy. For more information on divorce, alimony, child support, property settlement agreements and post judgment 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.

Verified Complaint for Name Change of Minor Plaintiff

In the recent case of Fleury v. Fleury, the Appellate Division in its unpublished opinion, held that the permitting the mother to change the last-name of a minor child on a verbal request was improper because New Jersey Court Rule 4:72-1 requires that a verified complaint be filed for an application to change a surname. The Appellate Court reversed the part of the Trial Court's Order which denied Defendant-Appellant's motion to change the son's surname back to his prior last name. Defendant claimed that under Rule 4:72-1 Plaintiff was supposed to file a verified complaint for the request to change their son's surname which would state the grounds for the request and that under Rule 4:72-3 Plaintiff would be required to publicize a notification of the request in local newspapers and serve the notice on Defendant at his last known address by certified and regular mail which Plaintiff failed to do. The Trial Court held Defendant-Appellant's motion was denied because it was not filed within the time requirement for a motion of reconsideration which is within twenty days after service of the judgment or order. The Defendant then moved for reconsideration. The Appellate Court held that it was not determined that Defendant's motion request was actually past the time allowed. Further New Jersey Court Rule 4:50, which allows for relief from an order or judgment where it is no longer equitable, could have been applied. It would be applicable because Defendant did not specifically label his motion as being a motion for reconsideration. The Court, as a court of justice, could then right the inequity of not providing Defendant with proper notice of Plaintiff's request to change the child's last name and of not giving him the chance to contest Plaintiff's request. The Appellate Court stated the Trial Court might ultimately find allowing the minor child's surname change is in his best interests but Defendant must be given notice of the application for the name change and he has the right to the opportunity to challenge the Plaintiff's application. If you want to have your child's last name changed, want to have your last name changed or if you have been served papers requesting a minor child's last name be changed then you should consult with an experienced family law attorney to protect your rights. For more information about surname change applications, child support, child custody, divorce 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.

Drug Court Failure Can Lead to More Severe Sentence

Those facing drug charges or other charges with underlying addiction issues who have no history of violent crimes can avail themselves of drug court probation in lieu of prison. Many take this option in order to avoid prison but fail to realize it means they have to actually stay clean for the entire probationary term which is typically 5 years. Because drug court is an option as long as there is no violent criminal history, those facing extended terms for second degree charges such as possession with intent to distribute within 1000 feet of a school zone or 500 feet of a public park, public housing or other public place are still eligible for drug court. What those entering drug court need to know is that failing out of the program by violating the terms of drug court probation like failure to appear, using, not maintaining employment or not participating in programs required following a drug evaluation subjects them to re-sentencing on the original charges. When considering a plea including drug court probation, it is always critical for the defendant to closely review and consider any alternate sentence which the prosecutor includes in the event the defendant is not successful in drug court. Often, taking a plea including prison rather than drug court can result in completing a shorter term in prison that that which will be faced in the event the defendant fails the drug court program. If you are facing criminal charges and think you may be eligible for drug court probation you should immediately obtain an experienced criminal defense attorney to protect your rights. For more information on protecting your rights if charged with possession of CDS, theft, burglary, assault, domestic violence or other crimes in NJ visit HeatherDarlingLawyer.com. This blog is for informational purposes only and is not intended to replace the advice of an attorney.