The Family Court Has Discretion In Family Law Matters

In a recent decision, the Appellate Court deferred to a Family Court ruling because, as it stated, the Family Court has special expertise in family matters. In the case, Formicola v. Kearn, the Plaintiff, Richard Formicola, and Defendant, Arleen Kearns, were married in 1987 and obtained a divorce in 2004. They have two children which were born during their marriage. There was a property settlement agreement that was incorporated into the couples' Final Judgment of Divorce. According to the property settlement agreement (PSA), the Plaintiff is required to pay the Defendant alimony in the sum of $9,100 per year for ten years starting on January 14, 2004 and ending on January 13, 2014. Further, the PSA specified that the Plaintiff was to pay child support in the amount of $18,900 per year along with one third of his annual bonus up to $5,000. In addition, the parties agreed that the child support obligation would be re-evaluated when each child matriculated to college. In 2011, the Defendant filed a motion claiming that the Plaintiff violated the PSA by not contributing his share of college tuition payments, not contributing to home repairs, and for additional information regarding his bonuses. At that time, the parties' daughter was a junior in college and their son was a high school senior. Initially, the parties attempted to settle the dispute in mediation, which failed. Therefore, a court ruled that the parties were to share in their children's college expenses in proportion to their incomes, that the Plaintiff was to pay the Defendant for deficient sums of his annual bonuses that she was entitled to, and the Defendant was to contribute to the marital home repairs, amongst other orders. The Plaintiff appealed the court's decision arguing that the trial court abused its discretion in granting the relief sought by the Defendant without analyzing the facts or case law, erred in allocating college expenses, and was wrong in awarding the Defendant counsel fees. The Appellate Division affirmed the lower court's decision holding that based on the ruling in Cesare v. Cesare wherein the court held "the general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." In addition, the Court noted that because the Family Court has special jurisdiction and expertise regarding family matters, the Appellate Division should offer deference to the fact finding that was conducted by the Family Court. In this case, the Appellate Court found that, although in some matters a plenary hearing must be held in order for the trial court to make a determination, the Family Court carefully considered the large number of documents submitted by the parties and its holding was supported by sufficient, credible evidence. The enforcement of the terms of property settlement agreements during or after a divorce can require an intricate understanding of the law, therefore if you require assistance in enforcing custody, alimony, parenting time, or any other terms contained in a settlement agreement or would like to engage mediation to reach such an agreement it is critical that you seek out the advice of an experienced attorney before proceeding. For more information about divorce, mediation, custody, visitation, parenting time, alimony/spousal support, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Evidentiary Hearings Are Required In Child Custody Cases If There Is A Genuine Factual Dispute

The New Jersey Appellate Court recently ruled that evidentiary hearings are required in child custody cases if there is a genuine factual dispute. In the matrimonial case, M.H.S. v. L.G.S., the Defendant appealed multiple orders of the Family Court that permitted unsupervised overnight visitation to the Plaintiff, her husband; transferred temporary custody of the couple's infant to her husband; and denied her petition for a stay. In her appeal, the Defendant claimed that the aforementioned orders were issued without an evidentiary hearing to decide the Defendant's belief that her child was at risk because her husband was addicted to internet pornography of an incestuous nature. The New Jersey Appellate Court held that the Family Court erred in failing to conduct an evidentiary hearing based upon the Defendant's accusations and ordered changes in parenting time and custody despite the serious allegations. In its opinion, the Court reversed the lower court's orders and remanded the case back down to the trial court to conduct an evidentiary hearing. In order to establish a need for an evidentiary hearing in a custody or parenting time dispute, a party must demonstrate that a genuine issue of material fact exists according to Segal v. Lynch and Lepis v. Lepis. A plenary hearing is required if there is evidence that demonstrates that a genuine and substantial factual dispute regarding the welfare of a child. The trial judge determines if such a hearing is necessary upon a review of the evidence presented. In this case, the Defendant submitted evidence obtained from the Plaintiff's computer that listed a series of pornography websites that he had visited. The Defendant also submitted screenshots of these sites. The Appellate Court determined that this evidence was enough to warrant an evidentiary hearing. During or after divorces parenting time and custody battles can be extremely complicated and emotionally exhausting. Further, when emotions run high such battles can become very adversarial. If you are engaged in a custody and parenting time dispute it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information about custody, visitation, parenting time, divorce, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Do Palimony Agreements Need To Be Written To Be Enforceable?

The Essex County Superior Court in, Joiner v. Orman, recently ruled on the issue of whether or not palimony agreements need to be in writing to be enforceable. In 2010, an amendment was made to the Statute of Frauds, which from then forth required that palimony agreements be made in writing and with the advice of legal counsel. In Joiner v. Orman, the defendant, Roscoe Orman, best known as the character "Gordon" for decades on the timeless children's television program, "Sesame Street," claimed that because his palimony agreement with the plaintiff was not placed in writing and was made outside the independent advice of counsel it was unenforceable. Mr. Orman and Ms. Joiner separated in 2010 and he has since married another woman. Ms. Joiner is now facing eviction from the home that the couple shared in Montclair and she claims that Mr. Orman made her verbal promises throughout their nearly 40 year relationship, a duration of time that she neglected her own professional goals so that Mr. Orman could pursue his career in television,regarding how she would be cared for in the event that their relationship ever ended. The Honorable Ned Rosenberg, J.S.C., ruled that Mr. Orman must continue to honor his palimony obligations even though the unmarried couple did not memorialize their agreement. Judge Rosenberg noted that Ms. Joiner "held up her end of the bargain . . . and the defendant does not even deny [the] agreement and even acknowledged the obligation by deeds and words." Mr. Orman's attorneys have stated that they intend to appeal Judge Rosenberg's decision because it contradicts the 2010 amendment to the state law requiring that palimony agreements be placed in writing and that the parties have independent advice of counsel when doing so. It is believed that Judge Rosenberg's ruling is the first instance of a state judge recognizing such an exception to the 2010 amendment. Unlike married couples, unmarried couples, even those who co-habitate on a long-term basis, do not have any right to support or obligation to make payment under the laws of NJ. Palimony agreements are an important way to protect your partner, your security and your assets in the event that a non-marital relationship dissolves or one member of the couple becomes incapacitated and that person's family chooses to discontinue support for the other against the wishes of the incapacitated person. Due to the potentially complex nature of such agreements, it is critical that you seek out the advice of an experienced attorney in drafting and reviewing this agreement which will protect your assets and rights for years to come. If you are contemplating moving in with your significant other, or have been living with them for years without marrying, you should act to protect your future by entering into a palimony agreement with them. For more information about palimony agreements, prenuptial agreements, divorce, alimony, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Case Contrasts Parent and Grandparent Rights in NJ

The NJ Superior Court Appellate Division case, Henry v. Zekovitch, contrasts and defines parent and grandparent visitation rights in this state. Linda Zerkovitch and Michael Henry got married in 2002. Two children were born of their marriage; one in 2003 and another in 2005. Linda filed for divorce in July of 2008 but her divorce was delayed because Michael was in active military service in another country and could not be served with the divorce complaint until February of 2010. Between 2008 and 2010, Linda and Michael's parents, the Henrys, began to experience strained relations. This strain compelled the Henrys to file a complaint seeking grandparent visitation rights. In December of 2010, the Family Court issued an order granting the Henrys with weekend visitation rights as well as overnight visitation with the children on alternating Wednesdays. On March 2, 2011, Linda and Michael finalized a consensual final judgment of divorce which was signed by both parties. The judgment specified that the parents would have joint custody of the children and that Linda was permitted to relocate to California with the children. The judgment also included that Michael and the Henrys were to have liberal visitation with the children throughout the year. Later on, the relationship between Linda and the Henrys began to break down and Linda denied them their visitation opportunities. In March of 2012, the Henrys filed an application seeking the enforcement of their visitation rights under the divorce judgment. The Appellate Court found that grandparent visitation is a statutorily created right and as such is not equal to the Constitutional rights that extend to a parent. Therefore, a grandparent can only be given visitation rights if it is within the best interests of the children and/or if the grandparents can be declared to be the "psychological parents" pursuant to the reasoning set forth in J.M.S. v. J.W. Therefore, the Court remanded the case back to the lower court to determine the appropriate amount of visitation that should be awarded to the grandparents. If you anticipate that you will become involved in a dispute involving grandparent's visitation rights it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about grandparent's rights, child custody, parenting time, divorce or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Are Delinquent Child Support Payments Owed to Someone Who Is Deceased?

Roder v. Roder is a New Jersey Appellate Division case that was decided on December 31, 2013 involving the issue of whether delinquent child support payments owed to a person who has died should be paid to the deceased person's estate or to her son. The administrator of the estate issued an appeal from a lower court's order directing that the delinquent child support payments be made directly to the deceased individual's son. The deceased person, Adrian Ashford married Donald Roder in 1987. Upon their marriage, Mr. Roder adopted Ms. Ashford's son, Matthew. In 1997, the couple decided to divorce and according to the property settlement agreement that was incorporated into the parties' Final Judgment of Divorce, Ms. Ashford would have custody of Matthew and Mr. Roder would have visitation with him and pay $150 a week in child support until Matthew is emancipated. In July 2009, a New Jersey Family Division Court determined that Matthew had pursued a full-time college degree and was emancipated upon his graduation from college rather than on his eighteenth birthday. Mr. Roder had stopping paying child support years before Matthew graduated from college and therefore it was determined that he owed Ms. Ashford $40,648.53 in child support arrears. Ms. Ashford died on January 12, 2011, one month after the Appellate Division denied Mr. Roder's appeal. The Appellate Division concluded that the Family Court should have properly enforced the child support order by ordering that the delinquent child support payments be made to the decedent's estate for distribution under the supervision of the Probate Part. According to the Appellate Division, the Family Court issued an order that distributed an asset of an estate to one of the decedent's three heirs and that this was a function of the Probate Part. The Court noted that there was nothing before the Family Court that even suggested that the child support payments that were owed were anything more than a debt owed to a deceased person's estate for the support of a child. If you anticipate that you will become involved in a dispute concerning child support or emancipation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child support, custody & visitation, emancipation, parenting time, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Will the New Jersey Marriage Equality Bill Become a Law in 2014?

The year 2013 brought many social changes, one of the most important being the legalization of same-sex marriage through a New Jersey Superior Court judicial ruling, but will the New Jersey Marriage Equality Bill became a law in 2014? In October of 2013, a New Jersey Superior Court judge, the Honorable Mary C. Jacobson, J.S.C., ruled in Garden State Equality v. Dow that prohibiting same-sex marriages in New Jersey violated homosexual individuals' equal protection under both the United States Constitution and the New Jersey State Constitution. Governor Chris Christie withdrew his challenge after the New Jersey Supreme Court refused to grant a stay and indicated that it would uphold the lower court's ruling. Same-sex marriages have been legally conducted in NJ since the end of October 2013, but the Marriage Equality Bill still has not been codified into law. Lawmakers have been unable to agree on all of the issues that are involved with the implementation of marriage equality and therefore the bill that would codify marriage equality into law has not been passed. Please note that this does not mean that gay marriages are not legal in NJ because they are, but the Marriage Equality Bill has not been passed into law. One of the main areas of dissention among lawmakers has been the issue of, if and how, to grant exemptions for churches and the clergy who refuse to perform lesbian, gay, bi-sexual or transgender marriage ceremonies due to their religious beliefs and tenets. Under the current, proposed Marriage Equality Bill, there is an exemption for religious groups to allow them to deny same-sex marriages based upon the First Amendment to the U.S. Constitution. The bill also specifies that religious groups cannot be forced to provide space, services, or privileges related to marriage if LGBT marriage violates their religious beliefs. The legal issues that are involved are very complex and lawmakers will continue to debate the substance and structure of the Marriage Equality Bill in the ensuing weeks and months. At this time, it is difficult to predict whether or not the Marriage Equality Bill will become New Jersey law in 2014. If you are considering entering into a same-sex marriage or if you are contemplating obtaining a same-sex divorce it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about same-sex marriage,divorce, same-sex relationship dissolution, civil union dissolution or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

DYFS - What Level of Behavior Constitutes Abuse and Neglect

New Jersey Division of Youth and Family Services v. C.W., is a recent New Jersey Appellate Division case that focusing on what behavior constitutes abuse and neglect in a DYFS case. In C.W., the Defendant, Cynthia, appealed from a lower court's order finding that she had neglected her son based upon her cocaine use and also based upon the fact that she physically attacked her husband - an attack that could have caused his death and exposed her son to "unspecified harm." Cynthia and her husband are the biological parents of a son, who was born in November of 2008. In April of 2010, DYFS was called to investigate an incident regarding this family when Cynthia allegedly stabbed her husband and struck him with a frying pan. Subsequently, Cynthia was arrested for the incident and charged with aggravated assault and other weapons offenses. Cynthia's husband declined to press charges against her, but informed the caseworker that he believed that Cynthia was abusing drugs and was in need of counseling. DYFS proposed a plan wherein Cynthia was not allowed to return to her home until she began to engage recommended therapeutic services and Cynthia signed the plan. The caseworker further concluded that Cynthia's violent behavior exposed her son to a substantial risk of harm, which warranted a finding of neglect against her. On June 28, 2010, DYFS filed a complaint under Tile Nine, N.J.S.A. 9:6-8.21, seeking care and custody of Cynthia's son. The boy was placed with a family friend. On December 6, 2011 a judge issued an order returning Cynthia's son to the care of his parents on the condition that they comply with the services recommended by DYFS. On June 21, 2011, the judge placed an opinion on the record finding that Cynthia had neglected her son based on her drug use and the violent attack against her husband. Cynthia appealed from this judgment arguing that the trial judge erred in finding that her behavior exposed her son to a substantial risk of harm because the judge relied on documentary evidence without requiring the testimony of the DYFS witnesses. The New Jersey Appellate Division found no abuse of the judge's discretion in her determination that Cynthia's drug use constituted neglect of her son. However, the Appellate Court found insufficient evidence in the record for a finding of neglect based solely on Cynthia's attack against her husband. The Court noted that the record did not contain any testimony, by an expert or anyone else, that Cynthia's son was directly or indirectly negatively affected by the attack. If DYFS has become involved with your family or you expect that DYFS will become involved with your family it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about DYFS, custody, child support, visitation or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Child Relocation - Agreement Under Duress?

The NJ Appellate Division case, Briseno v. Burton, focuses on the issue of child relocation during a child custody dispute and whether or not a litigant signed a consent order under duress. In this unopposed appeal from the New Jersey Superior Court, the Defendant appeals a court order that confirmed a consent order that allowed the Plaintiff to relocate to Florida with the parties' children. The Defendant seeks to invalidate the consent order because he claims to have signed the order while under duress, threats, and coercion. Further, the appeal alleges that the Defendant was not represented by counsel and that under N.J. Court Rule 4:50-1(f), if the agreement was upheld, the result would be unjust, oppressive, and inequitable. The parties in this action were never married and had known each other for about six years. Together they had two children. In 2010, after their relationship had ended, the parties began to have discussions about the possibility of the Plaintiff relocating with the children to California. In October of 2011, the Plaintiff gave the Defendant a consent agreement that detailed this relocation. The Defendant, upon receiving advice from counsel, declined to the sign the agreement because he disagreed with the proposed child support provisions contained in the agreement. In April of 2012, the Plaintiff provided the Defendant with yet another consent agreement which, if signed by him, would allow her to relocate with the children to Coral Springs, Florida. Again, the Defendant refused to sign the agreement. Finally, on June 8, 2012, the Plaintiff once again gave the Defendant another draft of the consent order to which the parties spent weeks negotiating the terms. On June 28, 2012, the Defendant signed the consent agreement on the condition that the Plaintiff stop pursing the restraining order against him that she had instituted. The New Jersey Appellate Division found the Defendant's appeal to be unpersuasive. According to the Court, the Defendant was well aware of the Plaintiff's intentions to relocate to Florida, as he was in possession of the proposed agreement for weeks and he even participated in modifying the language of the agreement. In addition, the Court reasoned that the Defendant had plenty of time to seek out the advice of an attorney. Therefore, the Court held that the Defendant's decision to sign the proposed consent agreement was of his own free will and was not done under duress. Furthermore, the Court noted that this case did not represent a case of exceptional circumstances and the fact that the Defendant felt, afterwards, that the terms of the agreement were not in his favor does not give rise to a reason to invalidate the order. If you anticipate that you will become involved in a custody dispute or a dispute concerning child relocation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child custody, parenting time, alimony or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.