Child Custody Transfer To Father Stands While Awaiting Plenary Hearing

Custody of a 13 year old child was transferred from the mother to the father in Skinner v. Cole. The parties were never married and the mother, Janice Skinner, Plaintiff, was Noah's primary caregiver since birth as before he was 2 years old she and Noah moved to Pennsylvania while the father remained in New Jersey. When Noah was 13, the Defendant, Bruce Cole, Noah's father, filed a petition for custody claiming Noah desired to live with him, Plaintiff's relatives used drugs in the residence, the Plaintiff worked long hours and rarely gave him attention, and Noah was frequently subject to assaults in the school he attended at his mother's residence. Alternatively, the Defendant claimed to enjoy a good relationship with Noah and live in a drug-free environment with a good school district. Plaintiff's reply maintained that she enjoyed a good relationship with Noah, he had a glucose problem that the mother was used to managing properly while the father mismanaged the problem while Noah was visiting with him, the father's house offered inadequate quarters for Noah , and Noah was an honor roll student in his current school yet she was still seeking a better school system for him. The Plaintiff further added that the Defendant frequently lied to Noah to destroy his faith in his mother, that her family members did not use drugs, and the only reason for the Defendant's motion was to terminate child support. The trial judge interviewed Noah who expressed a desire to live with his father and offered positive reasons for the change and negative reasons for wishing to leave his mother's residence. The trial judge took no testimony from the parties and only briefly addressed some of the factors set forth in N.J.S.A. 9:2-4(c), which are required considerations in making custody decisions, then rendered the decision that custody of Noah would be transferred to the Defendant. The mother, Plaintiff, appealed the transfer of custody on the basis of the trial court's failure to hold a plenary hearing before rendering its decision. The NJ Appellate Decision considered the requirement of Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007) that a party seeking a modification of child custody must first demonstrate a change in circumstances substantial enough to affect the welfare of the child, especially when there are material issues of fact in dispute. Further, Faucett v. Vasquez, 411 N.J. Super. 108, 119 (App. Div. 2009) wherein the court set forth that custody should only be modified after a full hearing unless exigent circumstances evidencing extreme danger are present. The NJ Appellate Division reversed and remanded the matter for a plenary hearing to resolve the issues in dispute between the parties. It should be noted that, pending the plenary hearing following appeal, custody of Noah remained with the Defendant as the parent of primary residence rather than being returned to the mother. If you are seeking a modification in child custody or defending a motion filed by your child's other parent, it is critical that you are aware of the factors and procedures involved. For more information regarding child custody, child support, divorce, emancipation, relocation of a child or other family law matters in New Jersey, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Child Custody Modified After Parties Failed To Abide By Agreement

In Myers v. Myers, the Defendant appealed from the child custody and child support provisions issued in a 2013 final divorce judgment following a trial. The Appellate Division affirmed the decision of the lower court after a careful review of the issues and the record. The parties in this case participated in a three day divorce trial in 2013. The final divorce judgment incorporated a partial stipulation of settlement which was filed in 2013. This partial settlement resolved many issues between the parties but left the issue of custody of their child and child support unresolved. Prior to the trial, in 2009, the parties executed a Consent Order that addressed the custody of their son. The child resided with each party on alternating weeks and on the weeks that each parent did not have the child they exercised parenting time on Tuesday and Thursday evenings. At trial, the Defendant proposed the same parenting time arrangement as was negotiated in the Consent Order. The Plaintiff sought a different schedule and requested that she be named the parent of primary residence. Her argument was that the prior arrangement never really took effect because after one month the Defendant moved back into the house with her and her son and that she had always been the one to take care of their son. She contended that the Defendant did very little with their son except to take him to practices and games. After the trial, the Court noted that after reviewing the relevant case law, it was guided by N.J.S.A. 9:2-4 in making a custody determination. The judge found the Plaintiff's testimony to be credible and found that the Defendant did not cooperate in the Plaintiff's attempt to negotiate an agreed upon parenting time schedule. The judge determined that from the "defendant's own testimony and his own demeanor" that a shared custody arrangement would not be appropriate. The judge awarded primary residential custody to the Plaintiff. The Defendant was given 104 overnights a year with his son and from this determination the court established that the Defendant's child support obligation would be $143 a week. N.J. Court Rule 5:6A. The Defendant appealed. According to the Appellate Division, regarding custody, the statute requires that the court consider multiple factors in determining the best interests of the child. N.J.S.A. 9:2-4(c). A court is required to place on the record the factors it considers consequential in reaching a custody decision, as the judge in this case had done. Monte v. Monte, 212 N.J. Super. 557, 565, 515 A.2d 1233 (App. Div. 1986). In this case the judge expressed a concern in the lack of cooperation between the parties mostly due to the Defendant's "problematic" behavior. The Appellate Division found that the Family Court judge clearly had the child's best interests in mind when he made the custody decision and subsequently the child support award. Therefore, the Appellate Division affirmed the decision of the lower court. Child custody and parenting time cases are of the most emotional and difficult cases in all of family law. If you feel that it may be beneficial to you to submit an application to the court for a modification of your current child custody or parenting time arrangement it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child custody, parenting time, child support, divorce or other family law matters in New Jersey visit the DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Divorce Via Facebook?

We live in an age where social media seems to be invading every aspect of our daily lives, therefore is it possible that social media sites such as Facebook can become a medium through which people can serve divorce documents? According to a recent ruling from Manhattan Supreme Court Justice Matthew Cooper perhaps divorce law may begin to work through social media, after all. Ellanora Baidoo and Victor Sena Blood-Dzraku were Ghanian and were married in a civil ceremony in 2009. Blood-Dzraku failed to honor his promise to follow up the civil ceremony with a traditional Ghanian wedding and therefore according to custom, this meant that the wedding was never consummated. Further, they never actually lived together despite being legally married. Shortly after their civil ceremony, Blood-Dzraku disappeared and Baidoo had no idea where he was. Initially, Baidoo hired a private investigator and submitted queries to the DMV in attempts to locate him, but in vain. Every once and a while Blood-Dzraku would send messages to Baidoo using Facebook. Baidoo soon realized that she wanted a divorce, but the only address that she had for him was for an apartment that he had moved out of in 2011 and therefore she could not properly serve him with the divorce papers. In a potential legal game changer, Judge Cooper in Manhattan allowed Baidoo to notify Blood-Dzraku of their impending divorce once a week for three (3) weeks using Facebook. According to the judge's ruling, if he did not respond within that time, the divorce would be processed without him. This ruling may have potential implications for people who want to obtain divorces but whose spouses are unable or unwilling to participate in a divorce because they cannot be properly personally served with the required documents. Although this ruling is presently restricted to New York, the prevalence and ubiquity of social media is felt throughout the entire country and there is no doubt that the option may gain favor in New Jersey and in many of the other states. Choosing to seek a divorce can be one of the most emotional and difficult decisions that a person can make in their lifetime. If you feel that it may be beneficial to you to obtain divorce it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about divorce, uncontested divorce, equitable distribution, child custody, non dissolution cases, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Extended Parenting Time, Child Custody And Name Change Award Appealed

In Ferriola v. Chiarulli, the Defendant appealed from a Family Court Order that expanded the Plaintiff's parenting time and restored the parties' child's name to that appearing on her birth certificate. The Appellate Court affirmed the decision of the lower court. The parties in this case share a four (4) year old girl. They were never married and they do not get along with each other. During their lives, both have battled addictions to drugs or alcohol and their daughter tested positive for drugs when she was born in 2010. As a result, she suffered severe and lasting withdrawal symptoms which caused there to be a finding of abuse and neglect against the parents. In 2011, the Defendant was awarded sole legal and physical custody of the girl and the Plaintiff was allowed only weekly supervised visitation while she underwent drug treatment. The Plaintiff completed court ordered parenting classes and began drug treatment as recommended by the Division of Child Protection and Permanency (DCP&P) in 2011. After completing a one (1) year drug treatment program the Plaintiff was awarded ten (10) hours a week of unsupervised parenting time with her child with the plan to re-evaluate parenting time in the future. Six months later the judge found that the Plaintiff's parenting time visits were successful and she was still sober, therefore she expanded her parenting time to include overnight visits. The judge also granted the Plaintiff's request to change the child's name to add her last name as an additional middle name to allow the child to carry the Plaintiff's family name without hyphenating her surname. The Defendant appealed arguing that the court should not have expanded the Plaintiff's overnight parenting time or changed the child's name without a plenary hearing. The Appellate Court held that the Defendant's arguments were without merit pursuant to Rule 2:11-3(e)(1)(E). The Appellate Court believed that the Family Court judge, who had overseen the case for over three (3) years carefully explained her reasons for all of the relief that the Plaintiff was awarded. Most importantly, the judge based all of her decisions on the child's best interests. Hand v. Hand, 391 N.J. Super. 102, 111-12 (App. Div 2007). Therefore, the Appellate Court affirmed the decision of the Family Court. Child custody and parenting time cases are of the most emotional and difficult cases in all of family law as are the often included issues including changing a child's name. If you feel that it may be beneficial to you to submit an application to the court to change your child's name or modify your current child custody or parenting time arrangement it is critical that you seek out the advice of an experienced attorney. For more information about name change, child custody, parenting time, non dissolution cases, divorce or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Grandmother Challenges Custody Of Child's Father

Reed v. Pettiford, is an Essex County case in which the Plaintiff, a child's father, was engaged in a custody dispute with the Defendant, the child's maternal grandmother. The Defendant appealed from the Family Court's 2013 Order which denied her application for sole legal and physical custody of her grandson. The Appellate Court affirmed the decision of the lower court. The child's mother died in 2004 before he turned two years old. After his mother died, the child remained in the custody of the Plaintiff and the Defendant assumed custody of the child's half sister. Subsequently, the Family Court awarded both parties joint legal custody of the boy. In 2005, the Defendant wrote a letter to the court expressing her doubt that the Plaintiff was the child's biological father and asking the court to vacate the prior custody order. She did not legally challenge the Plaintiff's paternity at the time. Rather, she continued to allow the Plaintiff to have residential custody of the child by a private agreement. The boy had a visitation schedule with the Defendant for years. As he aged and became involved in school sports his visitation with the Defendant became sparse and in 2012 the Defendant filed an application with the court to compel the Plaintiff to present the child for visitation. The court ordered visitation. Following a N.J.S.A. 9:2-4 best interests evaluation it was determined that the Plaintiff and Defendant could no longer communicate effectively with regard to the child and it was not in the best interest of child to have both the Plaintiff and Defendant share joint legal custody of him and to compel him to attend visitations with the Defendant. The Court issued a subsequent Order reflecting this change. The Defendant appealed. The Appellate Division affirmed the decision of the Family Court holding that none of the Defendant's arguments on appeal were sufficient to warrant discussion in a written opinion pursuant to Rule 2:11-3(e)(1)(E). The court did note that the Defendant never properly challenged the Plaintiff's paternity under N.J.S.A . 9:17-38, the New Jersey Parentage Act which governs the issue of paternity in New Jersey. This Act was created to "establish the principle that regardless of the marital status of the parents, all children and parents have equal rights with respect to each other and to provide a procedure to establish parentage in disputed cases. Fazilat v. Feldstein, 180 N.J. 74, 82 (2004). The Plaintiff was never married to the child's mother, but he is presumptively his father under subsections a(4) and (5) of the Parentage Act because he received the child into his home, had supported him, and had always held him out to be his natural child. N.J.S.A. 9:17-43(a)-(5). Child custody and parenting time cases are of the most emotional and difficult cases in all of family law. If you think that it may be beneficial for you to petition the court for a modification of your current child custody arrangement it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child custody, grandparent's rights, parenting time, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Great-Grandparent Maintains Custody Of Child Over Father's Objection

In J.F. v. R.M., a 2015 Appellate Division case, the Defendant appealed from a 2014 Family Court Order that denied his child custody application to obtain residential custody of his son from the child's great-grandparent. The Appellate Division affirmed the decision of the Family Court. The child at issue in this case was born in 2007 when his mother Sue was 15 years old and his father, the Defendant, was 17. The Defendant was not involved in his son's life until 2011. Following the child's birth, he and his mother lived with her grandmother, J.F. J.F., who raised her own five children also raised five of her grandchildren who were placed with her by DFYS. Sue, the child's mother, was placed in J.F.'s care when she was only 8 years old. J.F. became the child's primary caretaker. Eventually Sue left J.F.'s home and the child remained with J.F. for his entire life. In 2011, J.F. filed a complaint seeking custody of the child, which was granted. She also sought a paternity test to determine that the Defendant was the child's biological father and to establish child support. At that time the court granted the Defendant open and liberal parenting time with his son. In 2013, the Defendant filed for full custody of the child. J.F. opposed this Motion arguing that there was no basis for a change in custody. The judge denied the Defendant's request and specified that because there was no allegation of parental unfitness or gross misconduct with respect to the Defendant, J.F. has to demonstrate exceptional circumstances, like having a psychological-parent relationship with the child, in order to retain custody as a non-parent. The judge found that there was no difficulty in finding by a preponderance of the evidence that J.F. had established a parent-child bond with the child. The judge also entered an Order providing that J.F., the Defendant, and Sue were all to share joint legal custody over the child, but J.F. would continue to have residential custody of him. The Defendant appealed. In child custody disputes between two fit parents, "the best interest of the child standard controls because both parents are presumed to be equally entitled to custody . . . But, when the dispute is between a fit parent and a third party, only the fit parent is presumed to be entitled to custody." Watkins v. Nelson, 163 N.J. 235, 253 748 A.2d 558 (2000). However, "a third party can overcome that presumption by satisfying the standard required for termination of the rights of a non-consenting parent: unfitness, abandonment, gross misconduct, or 'exceptional circumstances'" Id. at 244-25. The resolution of a custody battle between a parent and a third party, like a grandparent, involves a two-step analysis. First, the application of the parental termination standard or a finding of exceptional circumstances must be established. Zack v. Fiebert, 235 N.J. Super. 424, 432, 563 A.2d 58 (App. Div. 1989). When the exceptional circumstances prong is satisfied, for instance by establishing that the third party has become a psychological parent, the standard for determining custody is the same as between two fit parents: the child's best interest." N.J.S.A. 9:2-4(c); Zack, supra, 235 N.J. Super. at 433. The Appellate Division agreed with the reasoning of the Family Court which determined that J.F. was the psychological parent of the child and then that it was within the child's best interest to remain in J.F.'s custodial care. V.C. v. M.J.B., 163 N.J. 200, 223, 748 A.2d 539 (2000). Child custody and grandparent's rights cases are among the most emotional and difficult cases in all of family law. If you anticipate that you may want to petition the court for a modification of your current child custody arrangement it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child custody, parenting time, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

National Same-Sex Marriage Imminent?

This week, the United States Supreme Court, in Luther Strange, Attorney General Of Alabama v. Cari D. Searcy, Et Al. On Application For Stay No. 14A840, refused to block gay marriages from being permitted in the state of Alabama and the dicta in one of the dissents of the Court's ruling seems to indicate that nationwide recognition of same-sex marriage may be imminent. In a 7-2 decision, only two justices, Clarence Thomas and Antonin Scalia, dissented in the Court's denying to stop homosexuals from obtaining marriage equality in the state of Alabama. Therefore, currently, 37 states and the District of Columbia allow same-sex couples to marry. As same-sex marriage is being recognized in the states at an alarming velocity many Americans are wondering if the Supreme Court is planning on making gay marriage recognized across the country when it rules on four (4) consolidated cases in June. Perhaps, comments included in Justice Thomas's dissenting opinion offers a sneak peek at the direction that the Court plans to take in June. In his dissention, Justice Thomas acknowledged that the Court's move to permit same-sex marriages in Alabama "may well be seen as a signal of the court's intended resolution." It is important to note that one of the key factors that the Court considers when deciding whether or not to put a hold on a lower court's ruling is the likelihood of success for the litigants if the case were to be appealed. Therefore, the Court's refusal to allow a stay on the ban of same-sex marriage in Alabama and other states that were recently similarly situated may indicate that the Court will find that same-sex marriage bans are unconstitutional in its ruling due in a few months. Same-Sex marriage became legal in New Jersey on October 21, 2013 following the decision in Garden State Equality v. Dow, N.J. 216, 314 (2013). Since that time, thousands of homosexual couples have received marriage licenses throughout the state. If you are an LGBT couple who plan on seeking a legal marriage or filing for a same-sex divorce or are simply someone who would like more information regarding the issue there are important factors that you should consider before doing so it is critical that you seek out the advice of an experienced attorney before proceeding. For more information about same-sex marriage, same-sex divorce, same-sex relationship dissolution, equitable distribution, alimony, custody and visitation, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and it is in no way intended to replace the advice of an attorney.

Historic U.S. Supreme Court Ruling On Same-Sex Marriage May Be Upon Us

Same-Sex marriage became legal in New Jersey on October 21, 2013 following the decision in Garden State Equality v. Dow, N.J. 216, 314 (2013). Since that time, thousands of homosexual couples have received valid marriage licenses throughout the state. From 2013 until the present, and since the Supreme Court struck down the federal definition of marriage in the Defense of Marriage Act in United States v. Windsor, the number of states that have come to legally recognize marriage equality has doubled. Currently, 36 states and the District of Columbia allow same-sex couples to marry and over 70% of the U.S. population currently live in a state where same-sex marriage is permitted or recognized. One by one, as the states legalized same-sex marriage many Americans began to wonder when and if the United States Supreme Court would take a case or cases that could lead to a nation-wide recognition of marriage equality. Legal theorists hypothesized that the Supreme Court may take up the issue once there was a circuit split in the U.S. Court of Appeals - well that time has come. Recently, the justices of the United States Supreme Court have granted review of four (4) pending cases in which the U.S. Court of Appeals for the Sixth Circuit upheld bans of same-sex marriage and the recognition of out of state legal same-sex marriages in Ohio, Michigan, Kentucky, and Tennessee splitting with its sister circuit court. The cases are DeBoer v. Snyder; Bourke v. Beshear; Tanco v. Haslam; and Obergefell v. Hodges. The arguments will be heard before the Supreme Court sometime in April of 2015 and a decision on the cases is expected to follow in June. The high Court permits 90 minutes for attorneys to argue whether or not the 14th Amendment requires a state to recognize and or provide licenses for homosexuals to legally wed. Subsequent to the Court taking these cases, Attorney General Eric Holder announced that the United States Justice Department will file amicus briefs urging that the justices find that all individuals, gay or straight, have the right to marry. Therefore, it is very possible that gay and lesbian couples may be allowed to marry in any state in the United States by the end of the summer. If you are a gay or lesbian couple who plan on seeking a legal marriage or filing for a same-sex divorce or are simply someone who would like more information regarding the issue there are important factors that you should consider before doing so it is critical that you seek out the advice of an experienced attorney before proceeding. For more information about same-sex marriage, same-sex divorce, same-sex relationship dissolution, equitable distribution, alimony, custody and visitation or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and it is in no way intended to replace the advice of an attorney.

Appointment Of Retired Judge As Parenting Coordinator In Custody Matter Is Appealed

In Cestone v. Cestone, the Plaintiff appealed from a series of Family Court Orders with regard to the agreement to appoint a retired New Jersey judge to serve as a parenting coordinator in a child custody dispute. The Appellate Court affirmed the decision of the lower court. The parties in this case were divorced in 2007 and at that time executed a custody agreement as part of their divorce. Three (3) children were born of the marriage and pursuant to the custody agreement that was filed with the divorce judgment, the parties were to share joint custody of the children, and the children would live primarily with the Plaintiff at her residence. As part of their agreement, the parties agreed to use the mediation services provided by a New Jersey law firm and a retired judge to resolve disputes regarding custody. In 2012, the Family Court denied the Plaintiff's Motion to disqualify the retired judge as the parent coordinator. Also in 2012, the Family Court denied the Defendant's application for sole custody of the parties' two younger children, to restrict the Plaintiff's contact with them, and to appoint various therapists for the children. The trial court held that the Plaintiff was in violation of litigant's rights for refusing to comply with the aforementioned Court Orders. On appeal the Plaintiff argued that the court erred in denying the Motion to recuse the parent coordinator because he had a conflict of interest as a mediator and retired judge in violation of Directive 5-08. According to the Appellate Division, Directive 5-08 prohibits retired judges from serving as attorneys in contested matters in New Jersey state courts, testifying as expert character witnesses, and accepting fee-generating court-initiated appointments except when both qualified through training and experience and providing the first two hours of mediation at no cost to the litigants. Further, communications and conduct during mediation are confidential, unless confidentiality is expressly waived by all parties or substantially outweighed by the need for disclosure. Lehr v. Afflitto, 382 N.J. Super. 376, 391 (App. Div. 2006); N.J.C.R. 1:40-4; N.J.S.A. 2A:23C-8. According to the Appellate Court, nowhere in her legal argument did the Plaintiff provide support for her position that the retired judge was conflicted or in violation of Directive 5-08. Although a parenting coordinator does some mediation techniques, it serves to facilitate day-to-day parenting issues that very commonly arise within the context of life. Further, the parties chose and agreed that this particular retired judge would be their parenting coordinator and there was never a suggestion that he was unqualified to do so therefore, the court did not find a basis to overturn the Family Court's decision. Child custody and parenting time cases are of the most emotional and difficult cases in all of family law. If you anticipate that you may want to petition the court for a modification of your current child custody arrangement it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child custody, parenting time, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Mother Compelled To Secure Passport And Pay Counsel Fees

In the recent Appellate Division case out of Union County, Lamb v. Lamb, the Defendant, Jill Lamb appealed from a portion of a 2013 post-judgment Court Order dealing with her child custody, specifically ordering her to 1) comply with obtaining a passport for the parties' 14 year old daughter so that she could accompany her father, the Plaintiff, Lucas Lamb, to the Bahamas, and 2) awarding the Plaintiff's attorney fees of $3,385. The parties in this case were married in 1999. They obtained a divorce in 2002, pursuant to a final divorce judgment that awarded them joint custody of A.L., their daughter. The Defendant is the parent of primary residence and the Plaintiff is the parent of alternate residence. The issue that gave rise to this appeal arose out of a Disney cruise trip to the Bahamas that the Plaintiff planned to go on with the parties' daughter in 2013. The trip was to include the Plaintiff's new wife and their two children as well as A.L. In 2013, the Plaintiff e-mailed the trip details to the Defendant and explicitly asked the Defendant to confirm that she agreed to allow A.L. to attend the trip. The Defendant responded that she agreed as long as the trip did not cause any conflicts with A.L.'s school schedule. In these e-mails, the Plaintiff asked whether A.L.'s passport was current and told the Defendant that if the passport was expired he would take her during his parenting time to update it. The Plaintiff argued that the trip did not require A.L. to secure a passport and an altercation ensued. The Defendant argued that Disney suggested that passengers have a passport in case he or she got sick and needed immediate health care. In June of 2013, the Plaintiff filed an Order to Show Cause (OTSC) because the passport issue remained unresolved. The court found that there was not material facts in dispute and ordered the Defendant to cooperate in obtaining a passport for A.L. and ordered that the Defendant pay the Plaintiff's legal fees to bring the action totaling $3,385. The Defendant appealed from this decision. In her papers, the Defendant admitted that the passport issue was a moot point because she had agreed to allow the parties' daughter to go on the cruise and she executed the passport documents and the trip took place but argued that she did not act in bad faith with regard to the passport and the court erred in directing her to pay the Plaintiff's legal fees. The Appellate Division agreed that the passport issue was moot holding that an issue becomes moot when "when the original issue presented has been resolved, at least concerning the parties who initiated the litigation." De Vesa v. Dorsey, 134 N.J. 420, 428 (1993). With regard to the award of counsel fees, the Defendant argues that the motion judge failed to consider the required factors under N.J.C.R. 5:3-5(c) and only focused on the bad faith factor. According to the Appellate Court, a judge in a matrimonial action may award a party reasonable attorney's fees and to make that determination shall "consider . . . the good or bad faith of either party." N.J.S.A. 2A:34-23; N.J.C.R. 5:3-5(c). The court held that the motion judge's analysis of the factors could have been more detailed but the record indicated that the counsel fees were awarded to Plaintiff as a direct result of his efforts to compel the Defendant's compliance with an already agreed upon visitation and therefore the award was not unreasonable. Child custody and parenting time cases are of the most emotional and difficult cases in all of family law. If you anticipate that you may want to petition the court for a modification of your current child custody arrangement it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about child custody, parenting time, child support, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

No Vacating A Child Custody Agreement Based on Party's Mistake

In a recent, Morris County New Jersey case, Alexin v. Raiter, the Plaintiff, Alexander Alexin and the Defendant, Irena Raiter, established a consent agreement to provide solutions to child custody issues in their relationship dissolution and the Appellate Division ruled that the Plaintiff could not vacate the agreement after it was signed when he claimed that he thought it was temporary and could be changed. The Plaintiff and Defendant had been dating when they discovered that the Defendant was pregnant. In 2010, a son was born to the couple but their relationship ended soon thereafter. In October of 2012, the Defendant filed a domestic violence complaint against the Plaintiff and was awarded a temporary restraining order. The restraining order granted the Defendant temporary custody of the parties' son and provided no parenting time for the Plaintiff. The parties then filed criminal complaints against each other. In late October 2012, the parties and their attorneys negotiated a civil consent agreement and the Plaintiff and his attorney made handwritten changes to the agreement at that time. The agreement indicated that the parties, through their attorneys, had resolved their issues in consideration of the promises that were made in the agreement. On the issue of child custody, the agreement specified that that Defendant shall have full physical custody of the parties' son and the Plaintiff shall have parenting time on Sundays from 11:00 a.m. until 6:00 p.m. Barely three months after the agreement was signed by the parties and their attorneys, the Plaintiff filed another complaint with the Family Court requesting joint legal and physical custody of the parties' child, arguing that he did not need to show a change in circumstances because he did not enter into the agreement voluntarily. In February 2013, the Family Court conducted a hearing at which the judge issued a written opinion denying the Plaintiff's request to vacate the agreement because the Plaintiff was represented by counsel, had be questioned under oath, and affirmed his understanding of the agreement and his willingness to sign it. The Plaintiff appealed this decision to the Appellate Court and the Court affirmed the decision of the lower court. According to the Appellate Division, although the Plaintiff offered two certifications to support his motion to vacate the agreement, his arguments do not raise a genuine, material issue of fact given the explicit terms of the agreement. The Plaintiff contended that he signed the agreement believing that the terms were temporary and could be changed, and that he only had 10-15 minutes to review the agreement with his attorney. The Appellate Court reasoned that settlement agreements are contracts and therefore "should be enforced according to the intent of the parties." J.B. v. W.B., 215 N.J. 305, 326 (2013). A contracting party to an agreement is "bound by the apparent intention he or she outwardly manifests to the other party. It is immaterial that he or she has a different, secret intention from that outwardly manifested." Brawer v. Brawer, 329 N.J. Super. 213, 283 (App. Div. 2000). Disputes regarding child custody can be of the most important and emotional in family law. If you are involved in a child custody or child support dispute it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information on custody, parenting time, post judgment modification, child support, divorce, or other family law matters in New Jersey visit Darlingfirm.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Post-Judgment Custody To Father Allows Child To Stay In Same School

In a recent Essex County post-judgment custody modification case, Stevens v. Shah, the Plaintiff, Jennifer Stevens appealed from a 2012 Family Court order that directed the parties to share joint legal custody of their child and awarded temporary physical custody of the child to the father, Amir Shah, so that the child could continue to attend the same school he had been in prior to the divorce. In August of 2012, an Essex County Family Court Judge issued an order directing that the Family Division conduct a best interests investigation as to the parties' child to assist in determining custody. Later, the judge held a hearing and took the testimony of the parties. After reviewing the best interests analysis and considering the testimony, the judge issued the aforementioned order. In the order the judge indicated that temporary physical custody of the child shall remain with the Defendant, in part, so that the child could remain in the Union school system. The Plaintiff was granted very liberal parenting time with her child. The judge stated that his decision was based upon the fact that when the court applied the best interest factors found in N.J.S.A. 9:2-4(c) - most elements were equal except that the child's continuity of education would be better served by allowing him to continue to go to school in Union, New Jersey. The Plaintiff appealed from this decision. The Appellate Division began its analysis by stating that a party wishing to modify a custody arrangement must demonstrate a "change in circumstances that affect the welfare of the child," according to the reasoning set forth in Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). After a showing of changed circumstances is made, the court must then decide whether the requested modification is within the best interests of the child. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). To accomplish this the court must consider the best interest factors as set forth in N.J.S.A. 9:2-4(c) and must make a record "referencing the statutory factors it has considered and the reasons for its custody determination." J.A. v. A.T., 404 N.J. Super. 132, 145 (App. Div. 2008). In the current case, the Appellate Court was satisfied that all of the above mentioned requirements were satisfied. Although, it held that because its decision was grounded in the child's best interest of continuity for the kindergarten year, and since all other factors were determined to be equal, the Plaintiff was permitted to seek physical custody without asserting changed circumstances after the school year. If you anticipate that you may want to petition the court for a post-judgment modification of your divorce judgment regarding such issues as child custody, alimony, or your child support obligation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modifications, child custody, divorce, alimony, child support, or other family law matters in New Jersey visit DarlingFirm.com. This blog is for informational purposes and in no way is intended to replace the advice of an attorney.

Recent Expansion of Federal Same-Sex Marriage Rights and Benefits

This week the United States government expanded the recognition of same-sex marriage rights to include situations such as bankruptcies, survivor benefits, and prison visits. This reflects yet another way that gay and lesbian legal rights are continuing to spread throughout the federal and state governments. This expansion of rights includes the remaining 34 U.S. states that still have not legalized gay marriage. In these states, the aforementioned federal benefits will only be extended to areas where the federal government has jurisdiction. For instance, a homosexual couple who was legally married in New Jersey can now become involved in a federal bankruptcy case in any of the 34 states who have not yet recognized marriage equality. Before this week, the federal government could challenge a same-sex couples' joint bankruptcy in states that do not recognize same-sex marriage. This new expansion of federal benefits also impacts LGBT married partners' ability to gain visitation rights for spouses incarcerated in federal prisons. It also extends survivor benefits for spouses of police officers and firefighters killed in the line of duty as well as the legal benefit and right to not be compelled to testify against a spouse in federal courts. The legal landscape for gay and lesbian individuals throughout the nation is changing at breakneck speeds. As social benefits and privileges continue to expand for homosexual people, everyone needs to remain up-to-date on how the expansion of marriage equality and social benefits legally impacts their lives. As the number of same-sex marriages increases in New Jersey, unfortunately and inevitably, so will the number of same-sex divorces and all of the issues associated with a legal divorce such as child custody, parenting time, equitable distribution, child support, and alimony - just to name a few. If you are a gay or lesbian couple who is dealing with any of these legal issues it is extremely important that you seek out the advice of an experienced attorney before proceeding. For more information about same-sex marriage, same-sex divorce, custody, child support, alimony, parenting time, equitable distribution 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.

The Issues of Custody Disputes in NJ

The divorce process in New Jersey can cause many difficult issues to arise and child custody disputes are one of the most common issues, therefore it is very important for parties to know what a court considers when determining child custody. N.J.S.A. 2A:34-23 governs the issues regarding custody disputes. According to the statute, a Family Court judge is authorized to "make such order . . . as to the care, custody, education and maintenance of the children or any of them, as the circumstances of the case shall render fit, reasonable and just." A judge has very wide discretion to use this statute when making custody determinations. The public policy behind the broad language of the law is to ensure that judges have the legal ability to tailor their orders to fit each individual situation to maximize the contact that children have with both of their parents if possible. In Beck v. Beck, 86 N.J. 480, 485 (1984), the New Jersey Supreme Court held that there is a "legislative preference for custody decrees that allow both parents full and genuine involvement in the lives of their children following a divorce . . . in promoting the child's welfare, the court should strain every effort to attain for the child the affection of both parents rather than one." Currently, when making child custody determinations a New Jersey court is guided by the overarching best interest of the child standard according to N.J.S.A. 9:2-4. Pursuant to this statute, a judge will consider a list of factors that he or she will apply to the facts of each case before issuing a custody order. Another aspect of a custody determination is the kind of custody that is awarded. The New Jersey statute that governs custody permits the Family Court to award a parent or parents with 1) joint custody of a child in which both parents have legal and physical custody of the child, 2) sole custody to one parent with parenting time to the other; or 3) another custody arrangement that the court arrives at to satisfy the best interests of the child. If you are involved in a child custody dispute, or have children and are considering divorce, it is critical that you consult with an experienced custody attorney before moving forward. For more information about child custody, divorce, parenting time, or other family law matters in New Jersey visit HeatherDarlingLawyer.com and NJCivilUnionLaw.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Does Ex-Spouse Cohabitation With New Paramour End Alimony?

In the state of New Jersey, may people believe that if they have been divorced in the state and now have an alimony obligation, that obligation will cease if their ex-spouse begins to cohabitate with a new significant other. Some may find it very surprising that this is not necessarily the case. A person may have to prove much more than the fact that their ex-spouse is living with a new significant other to terminate an alimony obligation. Under the laws of New Jersey, a party who wishes to terminate his or her alimony obligation must prove that their ex-spouse is first engaged in an intimate and enduring relationship with a new person. This party must also prove that the ex-spouse and his or her new paramour have engaged in duties and privileges that are commonly associated with marriage, which includes - living together, commingling of finances, sharing living expenses, and the recognition of the relationship among the new couple's family and friends. Beyond this, a person must show that his or her ex-spouse has economically benefited from the cohabitation with the new significant other. Even if a party is able to prove all of the aforementioned elements, the court may only reduce the alimony obligation instead of terminating it altogether. In order to be in the best position to receive some relief from the court, a party should be prepared to demonstrate that the ex-spouse's significant other either supports them or lives with them without contributing support. In order to prove this, a party will have to present to the court a comprehensive overview of the financial arrangements of all of the other parties involved, which could prove to be a difficult and expensive endeavor. If you are facing a spouse's efforts at alimony reduction or seeking to reduce or modify alimony you should obtain an experienced family law attorney to advise you of the likelihood of success in your matter and guide you through the process. For more information about alimony or spousal support in New Jersey it is advised that you consult with an attorney with experience in this area of the law. For more information on alimony/spousal support, contested divorce, high net-worth divorce or other Family Law matters in New Jersey visit NJCivilUnionLaw.com and HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Change Of Custody In Emergent Situations

The most common legal methods and remedies for a change in custody may not always be the best course of action in emergent situations in which a child's health or safety may be at risk. In New Jersey, issues regarding child custody and visitation are typically among the most difficult in family law because of the extreme emotions that arise for all of the parties involved. In actuality, most parents usually do not even realize that a change in custody is required until an emergency situation requires quick and instantaneous legal intervention to prevent physical or emotional harm to a child or children. The usual legal channels for a change in custody may not provide a child or a parent with the swift remedy that an emergency situation requires. In the state of New Jersey, a parent whether in a divorce, separation, or non-dissolution situation may petition the court to modify a child custody arrangement at any time if circumstances have changed or other issues require an amendment to an existing order or agreement. This process involves either the party or his or her lawyer submitting motions to the court requesting the modification, and this could take weeks or even months to finalize. If a child is in a situation where one parent is abusing drugs and/or alcohol, is battling mental health issues, exposing the children to a sex offender or other abusive individual or is in any other way placing the child's safety at risk - a month, even a week, may simply be too long to wait. For such emergency situations in New Jersey, a parent, his or her attorney, or even a DYFS caseworker can seek an emergent hearing or an emergent court order requesting an immediate change in custody for the protection of a child. In these instances, a court will evaluate what is in the best interests of the child and what is required to immediately protect the child from being in a situation of significant risk of harm. Keep in mind, a court will not be inclined to grant an emergent hearing or issue an emergent order to change custody unless the situation clearly dictates that there is no other available remedy to address the situation. Further, even in the event that the court changes custody on an emergent basis, a hearing will be scheduled to re-assess the emergency modification shortly after the emergent order was issued. If you believe your child is in harms way and an emergent hearing is in order to protect them or someone has wrongly accused you of placing your child in danger file for an emergency change in custody you should obtain experienced legal counsel immediately. For more information about custody & visitation, DYFS, parenting time, or other family law matters in New Jersey visit HeatherDarlingLawyer.com and NJCivilUnionLaw.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

DYFS Title 30 Cases Apply If No Abuse and Neglect

Recently, the New Jersey Supreme Court in DYFS v .I.S., A-81-11, reset the standards for invoking New Jersey's child abuse statute, Title 9, for cases of child custody cases absent a finding of abuse and neglect against a parent. The Court held that the lower courts must apply Title 30 to cases that do not involve abuse and neglect. Cases brought under Title 30 must adhere to difference procedures and standards to determine what course of actions should be taken to ensure the safety of a child in an at risk situation. The New Jersey Supreme Court found that if a lower court determines that there is no finding of abuse or neglect against a parent, a trial judge should proceed under Title 30 to determine if the parent has been "unfit to be entrusted" with the care of his or her child. Under such a determination, DYFS (now formally called the Division of Child Protection and Permanency or the DCP&P) would be allowed to engage the family and offer services, resources, and other assistance to help the unfit parent to rectify the harms that he or she has been exposing the child to. If, over time, the parent does not comply with the services and resources that DYFS provides, the child may be taken away from the parent and placed in DYFS's care. Essentially, by proceeding under Title 30, the court has a much broader scope from which it can intervene in a family situation to protect the interests of a child. Prior to the ruling in I.S., if a court could not find that a parent abused or neglected the child under Title 9, the action would have been dismissed. Under Title 30, the court orders must be reviewed every 6 months, and parents who have lost custody of their children are permitted to prove that they have taken steps to remove the harm that their child was placed in and therefore custody of their child should be returned to them. In order for parents to regain custody of a child that DYFS has removed from their care, they must comply with the services, evaluations, and programs that DYFS will offer to them as a means to demonstrate that they are fit to be a parent. If you are involved in DYFS case it is critical that you have experienced legal counsel at your side to guide you through the legal process. For more information about DYFS, custody & visitation, or other family law matters in New Jersey visit NJCivilUnionLaw.com and HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Same-Sex Marriage Debate in New Jersey Rages On

The debate on the same-sex marriage continues to rage on in the state of New Jersey in lieu of recent developments in the New Jersey judicial system. Last year, the New Jersey State Legislature passed a Marriage Equality law that would have allowed same-sex couples to marry in the states, but at that time, Governor Chris Christie vetoed the bill and temporarily ended the debate. On Friday September 27, 2013, New Jersey Superior Court judge Mary Jacobson ruled that same-sex couples in New Jersey must be allowed to get married, beginning on October 21, 2013. According to Judge Jacobson, gay and lesbian couples are being denied equal rights under the law and therefore must be allowed the right to marry just like heterosexual couples. If the state were to issue marriage licenses to same sex couples on October 21st, they would have all of the same state and federal benefits that heterosexual couples enjoy. Many marriage equality supporters from around the state joined together in celebration of Judge Jacobson's ruling, but does her ruling truly end the debate? The answer is, no. Governor Christie has stated that he will appeal Judge Jacobson's decision. Typically, the Appellate Division would first have to hear a challenged case, but in this instance state lawmakers and the governor have asked the New Jersey Supreme Court to consider the matter, circumventing the Appellate Division. On October 2, 2013, Governor Christie asked the judiciary to delay the enforcement of Judge Jacobson's order until the appeal can be decided by the Supreme Court. Judge Jacobson's ruling is the first of its kind since the United States Supreme Court released its ruling that the federal government cannot deny federal benefits to married same-sex couples. Judge Jacobson based her opinion in part on that United States Supreme Court decision. It is still too early to predict how Judge Jacobson's ruling will impact marriage equality in the state of New Jersey. Ultimately, this latest development proves that the debate over same-sex marriage in this state is still a hot topic and is far from over. With the legislature, the judiciary, and the governor all weighing in heavily on the debate over the past few years, the only certainty with regard to issues of same-sex marriage in New Jersey is that people throughout the state feel very passionately about the issue. Whether the legal status of same-sex marriage changes soon or not, has yet to be decided. If you are seeking to enter into or dissolve a civil union, there are ways to protect yourself and your partner under the existing laws by entering into contractual agreements where the law falls short of offering you protections offered to heterosexual married couples. For those in the LBGT community who are in long-term relationships and cohabitating, it is important to consult with experienced legal counsel regarding the steps you should take to protect your present and future interests under NJ Law. For more information on same-sex civil union, dissolution, divorce, custody, visitation, child support or other family law matters in New Jersey visit www.NJCivilUnionLaw.com and HeatherDarlingLawyer.com. This blog is for informational purposes and in no way intended to replace the advice of an attorney.

Emancipation And Child Support

Emancipation status will affect child support payments. If and when a child becomes legally emancipated can affect a parent's child support obligation. New Jersey is widely considered to be one of the most difficult states in which emancipations are granted. The reason for this is because although turning the age of eighteen is a major factor in the consideration of emancipation, it is not solely determinative. Determining when a child is legally emancipated from his or he parents is important for many social considerations, but it is an extremely integral element in a parent's child support calculation because the child's emancipation status can be the life event that ends a parent's obligation to continue to pay child support. New Jersey statutory law does not expressly define the elements of emancipation and therefore case law and the courts serve as the main guidance to determine a person's emancipation status. This is also why defining emancipation in New Jersey can become a difficult and case-specific endeavor. The NJ Appellate Division in Filippone v. Lee, 304 N.J. Super. 301 (App. Div. 1997) held that with regard to emancipation, the determination is very fact sensitive and requires a court to consider "whether a child has moved beyond the sphere of influence and responsibility exercised by a parent and therefore maintains an independent status of his or her own ." This holding reveals that in many instances a child may not be legally emancipated until well after they turn eighteen years of age. If a child cannot "maintain a independent status of his or her own" because he or she is enrolled in a college or other educational program, the child is not or cannot obtain gainful employment, or there are considerable other factors that preclude a child from achieving independent status, they may not be emancipated at eighteen. The practical effect of this is that a parent's obligation to pay child support may persist for many years beyond the child's eighteen birthday. If a child chooses to enroll in a full-time college program, a parent's child support obligation may extend to that child's graduation from college, which could be at twenty-two or twenty-three years of age. The events that will most likely lead to a child's legal emancipation include: marriage of the child, the child's graduation from college or similar educational pursuit, the child gaining full-time employment after reaching the age of eighteen, the child joining the military, or if the child graduates high school and chooses not to matriculate to college. Recent case law indicates that once a child reaches the age of majority, eighteen years, he or she may voluntarily waive the right to support and seek emancipation from his or her parents even if a court would find otherwise. For more information regarding emancipation, child support, child custody, divorce, civil union dissolution, 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.