Parental Rights for the Incarcerated

Those serving life sentences for crimes including murder may still have the right to visitation with their children. In Fusco v. Fusco, 452 A.2d 681 (1982), the NJ Appellate Division held that incarceration of a parent does not result in automatic termination of visitation between the parent and their children. In any case, it will be the best interests of the children that determine whether visitation should be terminated. Fusco was in prison for first degree murder and related charges. The mother of Fusco's child sought to prevent visitation in order to protect the child from full awareness of the brutal crime and hoped not to interfere with the seemingly healthy adjustment the child had made to not having her father in her life. The court held that a plenary hearing was required in order to establish the desirability of maintaining the relationship between parent and child; the psychological burden on the child in seeing their parent in a correctional facility; the burden on the non-incarcerated parent and; the ability to prevent the children from knowledge of the details of the offense. In a recent case, New Jersey Division of Youth and Family Services v. M.L., a father serving a life sentence in Pennsylvania faced termination of parental rights. So fundamental are a parent's rights that the NJ Appellate Court held that M.L. had to be permitted to participate in the trial by some means allowing him to cross-examine witnesses and testify on his own behalf if he wished and reversed the decision of the Warren County Superior Court Judge who terminated his rights and granted guardianship to DYFS. Although there are cases in which a parent's interaction with a child is inimical to the best interests of the child, every parent is entitled to the opportunity to parent until a finding of unfitness of the parent or the danger of either physical or mental harm to the child by the parent is determined in a fair proceeding. If you are involved in a dispute over custody or parenting time you should seek an experienced family law attorney to insure your parental rights are upheld. For more information regarding custody, parenting time, child support, alimony divorce, dissolution or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

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.

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.

Risk Assessment Is Required if Requested By A Party in NJ Parenting Time Decisions

A New Jersey statute, N.J.S.A. 2C:25-29(b)(3)(a) requires a risk assessment prior to the entry of a parenting time order if either party requests one. This statute is designed to protect children but has potential for abuse by a resentful party. Because a risk assessment may be ordered when establishing the initial parenting time or any time thereafter for modification motions, it is one which may be used by a resentful party against another to cause further stress during or after the dissolution of a relationship in which children are involved. Fortunately, if the Court finds that the request is arbitrarily designed to cause difficulty for the defending party and has no real basis, the court need not order a risk assessment. In many situations risk assessment requests will not be ordered by the court. However, in cases where this is a final restraining order (FRO) against the party, there are concerns about drug or alcohol use, there are signs of inadequate supervision during parenting time and similar issues, the court will have reason to order a risk assessment. During the pendency of the risk assessment, parenting time may be limited or suspended. Risk assessment is a lengthy process which involves a court appointed professional meeting with each party to make an evaluation then preparing a report to the judge which will likely be relied on by the judge in making the final decision after a hearing in which both parties appear after the report is complete. When being assessed, either party may provide statements, witnesses, medical records and other evidence to prove their case. If you are seeking or defending a change in custody in which you believe a risk assessment will or should be involved you need an experienced family law attorney by your side to protect your rights. For more information on parenting time, custody, divorce, dissolution of civil union or domestic partnership, alimony, child support 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.

Custody Change Children Prefer Different Parents

A father appealed the denial of his Motion for a change in custody of the parties' daughter. The father sought to change the primary residence of the parties' 15 year old daughter from the mother's residence to his own. The parties have 2 children, one boy and one girl, together and the father enjoyed liberal visitation as long as he resided within 20 miles of the mother, who was named parent of primary residence in the Property Settlement Agreement. The father moved outside the 20 mile radius and the mother's motion to reduce the father's parenting time was granted. The daughter specifically expressed her interest in residing with her father rather than her mother. The child advised that her interest in the custody change was based on concerns about her mother's parenting methods. Additionally, there was a parenting coordinator assigned to the matter which the judge below dismissed from the case. The judge below dismissed the motion as he did not believe the parties' children should live in separate residences. The judge expressed no findings that the children would be harmed by Amy's request for the change in custody, that changing schools would be to her detriment or that Amy was under undue influence by her father. Also, the judge held no plenary hearing prior to denial of the motion. The NJ Appeallate Court held that the judge erred in the failure to hold a plenary hearing as the facts clearly gave rise to a prima facie case of changed circumstances. The matter was remanded for a hearing in the event there remained a contest as the child was 16 years old by the time the appeal was decided. 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.

Post-Judgment Relocation Requirements Reviewed

Pursuant to Baures v. Lewis, the parent seeking to relocate to another state with the child has the burden of proof to show that there is a good faith reason for the proposed move and the proposed move will not be inimical to the child’s interests. In making a determination as to the removal, the Court must address the following factors: (i) reasons given for the move; (ii) reasons given for the opposition; (iii) past history of dealings between the parents; (iv) whether the child will receive educational, health and leisure opportunities at least equal to what is available here; (v) any special needs or talents of the child; (vi) whether a parenting time and communication schedule can be developed that will allow the non-custodial parent to maintain a full and continuous relationship with the child; (vii) the likelihood the custodial parent will continue to foster the child’s relationship with the non-custodial parent; (viii) the effect the move on extended family relationships here and in the new location; (ix) if the child is of age, their preference; (x) whether the child is entering their senior year in high school; (xi) whether the non-custodial parent has the ability to relocate; and (xii) any other factor bearing on the child’s interest. Based on a recent review of the Baures factors, the Court in Benjamin v. Benjamin held that it is not mandatory that a custodial parent have a specific job or promise of guaranteed employment in another state to relocate. It was noted that to require the custodial parent to show proof of a specific job or promise of guaranteed employment is often impractical as they do not even know when or if the Court will grant them the ability to relocate. Instead, the Court found that the practical and relevant question should focus on the custodial parent’s plan to provide a financially stabile household once in the new state. For that reason, the custodial parent’s relocation plan must include a look at their employment and work history. This would also include consideration of the long-term financial stability of the decision to relocate despite employment status. The Court further recognized that the financial reasonableness of quitting current employment and future economic stability, which can inimically affect the child’s security and emotional health, as the child’s interest must be at the forefront of the decision. In Benjamin, the court viewed the custodial parent’s longtime history of steady, stable employment, their having sought and found potential employers, their employment skills, their ability to present as articulate and intelligence and their history of responsibly caring for the child, both financially and otherwise, as evidence that the relocation request was reasonable and in no way irresponsible, impulsive or financially inimical to the child’s interests. If you are considering a post judgment relocation motion you will be addressing critical issues and should consult an experienced family law attorney immediately in order to protect your rights. For more information on alimony, equitable distribution, child support, child custody, parenting time/visitation, adoption, dissolution of a civil union, marriage or domestic partnership, modifications or other family law matters in New Jersey visit HeatherDarlingLawyer.com This blog is for informational purposes only and is in no way intended to replace the advice of an attorney regarding your specific matter.

No Change in Custody in NJ Without a Hearing

In order to make a change in custody from the arrangement set forth under the terms of a Court Order or Property Settlement Agreement into which the parties freely and knowingly entered, the Court must hold a plenary hearing. A recent decision in the Essex County Superior Court, Family Part made a change in custody based solely on the recommendations of a court-appointed mediator. Originally, when plaintiff sought a change in custody, the parties agreed to retain a joint evaluator and enter into a consent order if they both agreed with the evaluator's recommendation. However, the parties and the court, further agreed that, if the decision of the evaluator was unacceptable to either party, that party could move for a hearing before the Court to determine whether the evaluator's recommendation should be implemented. The New Jersey Appellate Court reversed the superior Court ruling and reaffirmed a prior ruling in the case of G.C. v. M.Y. (287 N.J. super. 363, 368 (App.Div. 1995)) by stating that "unless there are exigent circumstances, changes in custody are not to be ordered without a plenary hearing." The exigent circumstances set forth were "evidence of imminent harm or threatened harm to the well-being of the child, there is no justification…[to make] a custody decision on an emergent basis, without a plenary hearing." 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 or your children's other parent are seeking a modification of custody, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on custody, divorce, dissolution of civil union or domestic partnership, alimony, child support or other family law matters in New Jersey visit HeatherDarlingLawyer.com.

Legal Representation for Children When Parental Rights Are Terminated

Bill A-700 that is pending in New Jersey, would require the State to provide legal representation for a child in proceedings after parental rights have been terminated. This Bill extends the authorization of the Law Guardian Program of the Office of the Public Defender to provide legal representation until permanent placement has been finalized by the court. Extending the legal representation ensures the child(ren)'s wishes to are known and their interests protected. In addition to the Office of the Public Defender assigning counsel based on all characteristics of the case, the willingness of an attorney to represent any party must be taken into account. This Bill also makes mandatory the requirement that attorneys who represent a party in any post-termination review hearing receive adequate training to provide proper representation to the clients. While these services are typically already offered by the Officer of the Public Defender, the ratification of this bill will be an important milestone in guaranteeing the proper representation of New Jersey's youth. 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 are facing or seeking termination of parental rights, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on parental rights,adoption, child support, custody, alimony, divorce, dissolution of a civil union or domestic partnership or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This post was contributed by Doreen L. Neggia, Esq.

Removal of a Child From Their Native Country Under the Laws of NJ

The Hague Convention is an international law into which countries may enter for the purposes of international cooperation. The Hague Convention has been signed by 89 countries. Haiti, Nepal and the Russian Federation have signed but not ratified. The Hague Convention has sections pertaining to international abduction of a child. One sections requires the return of a child wrongfully removed from their habitual residence as long as the action for return is filed within one year of the date the child is removed. Any application filed after one year requires the court to consider whether the child is well-settled in the new country of residence. Exceptions to the one year timeframe include a showing that the abducting parent has taken steps to conceal the child's whereabouts from the parent seeking return or there is grave risk of harm to the child by the receiving state or family members therein. There are defenses which may be asserted by the parent who removed the child from their native country. In the event the other parent consented to removal, the court will not force a return of the child to their habitual residence. If the child is old enough to make such a decision, the child may decide whether they wish to stay in the country to which they have been removed or return to their habitual residence. Finally, if there is grave risk of physical or psychological harm to the child in their new residence, the court will order the return of the child to their habitual residence. 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 are seeking to remove a child from or have a child returned to another state or territory, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on relocating with children, child custody, child support, enforcement, modification, alimony, divorce, dissolution of civil union or domestic partnership, custody or other family law matters in New Jersey visit HeatherDarlingLawyer.com.