Child’s Need For Safety Trumps Parental Rights

Parents living in a hotel room with their children were charged with abuse and neglect for allowing the father, a Megan’s Law offender, unsupervised contact with the children, failure to immunize the children and failing to provide appropriate sleeping arrangements for the children. In New Jersey Div. of Child Prot. And Permanency v. J.B., the division learned that the mother, J.B., left the children alone with the father, C.R., who was prohibited from staying in a location where a minor was present without approval and subject to community supervision for life for Megan’s Law offenses involving the father’s 7 year old child and the mother’s older children from a prior relationship. The division filed for custody, care and supervision of the children under N.J.S.A. 9:6-8.21 and N.J.S.A. 30:4C-12. The referrant advised the division that the mother had recently given birth to a son after she had carried with no prenatal care and that the parents did not want to leave the infant at the hospital for a 48 hour monitoring period after birth, which the doctors believed prudent in light of the fact that the mother had no prenatal care. Also included in the complaint was the fact that the children did not have adequate sleeping accommodations and seeking to provide immunizations to the children. The daughter was 2 years and 9 months old and had been sharing a bed with the parents. The Defendants ultimately stipulated to abuse and neglect after the Superior Court judge granted the division custody but the parents denied the division approval to immunize the children. Once the parents stipulated to abuse, the division moved again to immunize the children over the parents’ objections on religious grounds and the trial court found in favor of the division over the parents. The parents appealed the decision of the Superior Court judge to permit the division to immunize the children in spite of the Defendants’ objections on religious grounds. Although the parents objections to immunization fit squarely into one of two permissible objections, religious or medical, the N.J. Appellate Division cited In re Guardianship of J.C., 129 N.J. 1, 9-10 (1992), acknowledging a parent’s constitutionally protected rights to raise their children, even if those children are in foster care. The N.J. Appellate Division then cited In re Guardianship of K.H.O., 161 N.J. 337, 347 (1999) in holding that the parents rights are superseded by the children’s safety and that the court has the ultimate authority to protect children in the event that they are in danger. The decision below was affirmed. For more information about parenting time, custody or other matters pertaining to parental rights visit DarlingFirm.com or call 973-584-6200 now to schedule a consultation. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Psychological Parent Seeks Rights

In A.O. v. N.D., the court determined whether the plaintiff, designated the "psychological parent" of defendant's biological child was entitled to a plenary hearing with regard to an alleged agreement granting joint custody and ordering the parties to attend co-parenting therapy. The parties and the child lived together until the child was four. Plaintiff sought parenting time, custody and a designation as the child's psychological parent and the parties agreed in some regard. The parties agreed to designate an expert to produce a parenting schedule but there was continued conflict in regard to the parenting issue and plaintiff sought joint legal custody and mandatory co-parenting therapy. Defendant refused to sign a consent order giving effect to plaintiff's wishes. Plaintiff filed an application to enforce the unsigned consent order or for the court to order the same relief plaintiff sought in the consent order and defendant opposed. Defendant also acknowledged making his fiancee', not the plaintiff, the child's emergency contact. The judge denied the plaintiff's motion to enforce an unsigned consent order or grant a plenary hearing in light of the lack of evidence an agreement had been reached. The judge found no change in circumstances on which to grant plaintiff's relied but did order the parties to attend a co-parenting class. Plaintiff appealed, arguing the court erred in failing to order a plenary hearing to determine whether a verbal agreement had been reached. The NJ Appellate Division cited to numerous cases in rendering their judgment that the party seeking to enforce an agreement bears the burden of first showing some evidence of the existence of an agreement. The Appellate Division determined that, as per Harrington v. Harrington, 281 N.J. Super. 39 (1995), the agreement need not be reduced to writing to be enforceable. However, the Appellate Division also cited to the fact that an attorney's negotiations are not binding on a client unless the attorney has specific or apparent authority to enter into the settlement. U.S. Plywood Corp. v. Neidlinger, 41 N.J. 66 (1963). No matter the representations of defendant's counsel during negotiations, defendant's refusal to sign was evidence that an agreement did not exist. A designation as "pyschological parent" does not necessarily afford one the rights of a biological parent. Psychological parent is term used in many matters, from the case at hand to same-sex relationships where the non-biological parent failed to adopt to grandparents rights. If you are seeking, or trying to prevent, a designation of "psychological parent", it is critical that you obtain the advice of counsel. For more information about custody, parenting time, child support or other issues relative to children, visit DarlingFirm.com or call to schedule a consultation. This blog is for informational purposes only and not intended to replace the advice of an attorney.

In Child Custody Matters, Custody Neutral Assessments Have Limited Admissibility

In a child custody matter, a report issued in a Custody Neutral Assessment (C.N.A.) was not admissible as substantive evidence but was admissible for the limited purpose of the impressions of the assessor and statements and conduct of the parties during the assessment. Manuel Serrano and Gregoria Urbano were divorcing after a marriage of only 2 years and the issue of custody of their child was contested. They could not afford a forensic psychologist to perform a comprehensive evaluation and render a report as to custody but did participate in a C.N.A. with a clinical social worker. The C.N.A. included meetings with each party individually and a report of the evaluator’s impressions and observations during the process. Thereafter, the matter proceeded to trial. In the trial of Serrano v. Urbano, the judge held that: (1) A C.N.A. is not, and therefore cannot be substituted for, a forensic custody evaluation; (2) Unless a forensic evaluation is undertaken, an expert opinion cannot be rendered as to the issue of custody from a forensic psychological standpoint; (3) The testimony and report of the evaluator may have limited admissibility for the purpose of determining the best interests of the child; and (4) The evaluator may offer testimony with regard to statements or actions of the parties during the assessment and the evaluator’s impressions thereof as long as said information is relevant. If you are contemplating divorce and child custody or parenting time is likely to be an issue, it is critical that you consult with an experienced family law attorney in order to learn your rights and the likely outcome of your matter before making any decisions. Child custody determinations can be painstaking for the parties and the court and are not easily modified without consent of both parties or a considerable change in circumstances that is obvious to the court. For more information about custody, parenting time, divorce, alimony or other family law matters visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

With Overnight Parenting Time Comes Responsibility

The NJ Superior Court addressed mid-week overnight parenting time with a non-custodial parent when there were allegations that the children’s performance in school was being hampered by the arrangement in M.C. v. P.C. The court held that the best interests of the child include the child’s educational interests. The court reasoned that when there is sufficient evidence to conclude that overnight midweek parenting time must be eliminated in furtherance of the child’s education, parenting time will be modified. There is an obligation for parents, held the court, to oversee the child’s performance of schoolwork and class preparation. The court also noted that when the parent of alternate residence lives a substantial distance from the parent of primary residence, travel time may also be reason for caution in establishing midweek overnight parenting time during the school year. When establishing custody, the best interests of your children are always paramount. It is critical that you seek an experienced family law attorney who will assist you in setting up a plan that works best for your family’s needs in order to ensure that during what can be a very difficult time for any child, they have continuity and support to the fullest extent possible. For more information about custody and parenting time, divorce, child support and other family law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of counsel.

Custody and Parenting Time Conditioned on Reunification Therapy

William Iozia filed a motion for parenting time after failing to see his children for almost 2 years. Kelly Krzeckowski, the mother, entered into a consent order with Iozia calling for a custody and parenting time evaluation for both parents, reunification therapy for the father and the parties 2 children, and the possibility of a substance abuse evaluation for the father. The consent order also called for the parties to share the cost of the custody and parenting time evaluator equally. Iozia sought supervised parenting time until the evaluations could be completed and successfully completed the required substance abuse evaluation to obtain the supervised parenting time but Krzeckowski claimed the substance abuse evaluation was limited. Additionally, no reunification therapy had occurred and the parties, upon return to court, received an order reserving custody issues until reunification therapy was completed and ordering the father to pay for reunification therapy costs. After attempting reunification therapy for some time and changing therapists at the request of the mother, the situation broke down. The father sought a plan for supervised parenting to be followed by unsupervised daytime parenting and ultimately unsupervised overnights every other weekend. The mother requested another substance abuse evaluation of the father. The parties were instead ordered to comply with the prior order for reunification therapy and the father was ordered to undergo a drug screening at the mother's expense. The court denied both parties' counsel fees requests but included that, should either party fail to comply with the order, the non-compliant party would be responsible for the other party's counsel fees. Krzeckowski appealed the denial of her counsel fee request and, in Iozia v. Krzeckowski, the N.J. Appellate Division upheld the decision of the court below denying counsel fees finding that the original order failed to spell out certain details relating to reunification therapy costs which could have resulted in delay without fault of either party. Child custody 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 to establish custody, or for a post-judgment modification of your current child custody arrangement, it is critical that you consult with an experienced family law attorney before moving forward. For more information about child custody, post-judgment modification, parenting time, divorce, 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.

Will Your Spouse Pay Your Divorce Costs?

Friedrich v. Friedrich was a post-judgment divorce action, wherein Defendant wife’s attorney sought counsel fees against the Plaintiff for outstanding legal fees over and above the $20,000 in counsel fees the Plaintiff had been ordered to pay pendente lite. In spite of substantial disparity in the parties’ incomes, the court held that pursuant to all factors to be considered under N.J.C.R. 5:3-5(c), an additional counsel fee award was not warranted. Pursuant to Rule 5:3-5(c), the court has discretion to award counsel fees to either party in a family law action, both pendente lite and upon Final Judgment if the court finds the award to be in the interest of justice. Specifically, Rule 5:3-5(c) includes fees for “any claim for divorce, dissolution of civil union, termination of domestic partnership, nullity, support, alimony, custody, parenting time, equitable distribution, separate maintenance, enforcement of agreements between spouses, domestic partners, or civil union partners and claims relating to family type matters.” The criteria for an award of attorney’s fees include the legal services performed, or likely to be performed, and the financial circumstances of each party. In setting the amount of any award, Rule 5:3-5(c) directs the trial judge to consider: “(1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.” In addition, the court has discretion to direct one or both parties to liquidate assets in order to pay counsel fees. In affirming the denial of counsel fees to the Defendant, the N.J. Appellate Division held that the trial judge gave proper review to the factors set forth and found that the Plaintiff was not able to contribute to the Defendant’s attorney’s fees. A major consideration in any divorce is the impact on one’s financial future. Although the financial issues of divorce are not to be taken lightly, if you are miserable and feel that the only thing standing between you and your happiness is the ability to finance your divorce, you should speak with an experienced divorce attorney about the possibility of receiving some of your counsel fees from your spouse. For more information about divorce, child custody, parenting time, post-judgment issues and other family law matters visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Post-Judgment Divorce Decision To Call Step-Parent "Mom" Or "Dad" Belongs To Child

In B.S. v. T.S., Superior Court Judge Lawrence Jones ruled that, in a post-judgment divorce matter, the decision whether to call a step-parent "mom" or "dad" rests solely with the child. B.S. and T.S. were divorced with a judgment calling for joint legal custody of their son, Daniel, and both parents actively participated in their child's life. B.S. ultimately began sharing a residence with his fiancee', Lori and Daniel developed a emotional bond such that Daniel opted, without encouragement, to begin calling Lori "mom". Daniel and T.S. maintained a strong bond as well which was not impacted by Daniel's interactions with Lori. In hearing the motion by T.S. to prevent Daniel from calling Lori "mom", Judge Jones noted that children of divorce often have few rights but one of those rights is certainly the choice of what to call a step-parent. In his ruling, Judge Jones did include that, in cases where the biological parent remains an active participant in the child's life, the biological parent shall always be responsible for decisions regarding the child's upbringing and that the step-parent's marriage to a child's biological parent does not, without more, confer parental rights on the step-parent. For more information regarding post-judgment modification, parental rights, custody, child support, divorce or other family law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Divorce Complaint Dismissed For Lack Of Jurisdiction

Although divorce can seem like a simple proceeding at first, not only can problems arise between the parties but also in bringing the case itself. In Appelbaum v. Huff, the court granted a motion to dismiss the divorce claim on the basis that the plaintiff was not a bona fide resident of New Jersey for the statutorily required one year immediately preceding the filing of the divorce complaint. In order to the courts of NJ to have what is called subject matter jurisdiction over an individual, said individual must have been a resident for the statutory one year period. Subject matter jurisdiction is not waivable and can be raised at any time during a matter. This is but one example of the pitfalls that can cause substantial delay or even dismissal of your case. There are a multitude of similar court rules which are hard to know without substantial experience in such matters. In the event you are considering divorce, it is always important to seek the advice of an experienced family law attorney before filing an action in court. For more information about divorce, child custody, child support, alimony or other family law matters visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Child Support Arrears Effect Income Tax Deductions

Although child support arrears are do not result in a prohibition of a parent enjoying visitation or parenting time with their child, child support arrears can result in suspension of a parent's right to claim a child as a child support deduction. In Zeitlin v. Zeitlin, the New Jersey Family part refused to modify the property settlement agreement to the extent that each parent was entitled to claim one child as an exemption on their income tax returns. However, on appeal, the N.J. Appellate Division held that a parent's failure to pay child support breached their duty of good faith and fair dealing and could result in the suspension of that parent's right to claim a child as an income tax deduction. Based on the notion of good faith and fair dealing, the court suspended the father's right, under the property settlement agreement, to claim one of the children as a tax exemption. The decisions made in divorce, by either the parties or the court in the event of trial, are long lasting and have significant consequences to both parties' and their children. If you are considering divorce or seeking a modification of your present child support, it is critical that you discuss your situation with an experienced divorce attorney before taking action. For more information about child support, custody, divorce, parenting time, visitation, alimony or other family law matters in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Pendente Lite Support Pending Divorce

Pendente lite support is temporary support, established during the pendency of a divorce, intended to preserve the financial status quo, or marital standard, of the parties until equitable distribution and alimony are resolved, between the parties or by a judge, and a final judgment of divorce is obtained. The span of time between separation or the filing of a divorce complaint and actually obtaining a divorce can sometimes take years making pendente lite support a critical issue for both parties. Although the intent is to continue the status quo existing prior to the marriage and ensure an economically dependent party is not left destitute, pendente lite support often leaves both parties lacking. Expenses often increase during this time as there is typically another residence to support and, if there are children, the party vacating the residence must have adequate housing for themselves and the children or they will be in an inferior position when it comes to parenting time. Often, parties will separate but make efforts at resolution for long periods of time prior to filing for divorce. During this time, if things are amicable, the party who vacates the marital residence may simply obtain quarters adequate for sleeping and little more such as a spare room at a friend's residence, their old bedroom at their parent's house or similar. They will continue to provide the bulk of their income to the family for household expenses and be comfortable "getting by" for the interim. Unfortunately, this period of time can establish a precedent and, if a divorce complaint is filed, either the supported or supporting spouse can find themselves in a very difficult financial situation without enough assets for themselves if a judge decides a motion for pendente lite support using this period of separation as the model for the "marital standard." If you are considering divorce, prior to leaving your residence, you should consult with an experienced divorce attorney in order to discuss your needs, your family's needs and your financial situation. An experienced family law attorney can protect you from finding yourself with a pendente lite support order which will leave you financially destitute. For more information about divorce, child support, custody, emancipation and other family law issues in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Child Support Modification Denied

In Markey v. Melazzo, the Defendant appealed from a 2013 Family Court Order that denied his Motion to terminate his child support obligation and force a recalculation of his arrearage. The Appellate Division affirmed the ruling of the Family Court. In 1995, the Plaintiff and Defendant had a son together but never married. In 2005, a Court Order directed the Defendant to pay $129 a week in child support. In 2012, the Defendant was injured at work and has since claimed that he is unable to work because he is disabled. Later that year, a hearing officer denied the Defendant's Motion for modification of support, without prejudice, because the Defendant failed to provide proof of his income or the validity of his disability. In 2013, the Defendant filed the application which was the subject of this appeal, wherein he sought the termination of his child support and the elimination of his arrears. The Defendant claimed that the Plaintiff has not permitted him to visit with the child and has changed the child's last name without his consent. In 2013, the Family Court denied the Defendant's Motion because the Defendant failed to provide a valid basis for relief. The Defendant appealed. According to the Appellate Division, child support is necessary to ensure that parents provide for the basic needs of their children. Pascale v. Pascale, 140 N.J. 583, 590, 660 A.2d 485 (1995). A party who seeks modification of his or her child support obligation has the burden of demonstrating a change in circumstances warranting such an adjustment. Lepis v. Lepis, 83 N.J. 139, 157, 416 A.2d 45 (1980). The decision must be made in accordance with the N.J. Child Support Guidelines when applicable. Caplan v. Caplan, 182 N.J. 250, 266, 864 A.2d 1108 (2005); Terry v. Terry, 270 N.J. Super. 105, 121, 636 A.2d 579 (App. Div. 1994). In this case, the Defendant sought the termination of his child support obligation and the elimination of his arrears dating back to 2002 when the child's name was changed, arguing that the name change was a de facto termination of his parental rights, yet the Defendant cites no authority of his position. According to the Appellate Court, the Family Court correctly determined that the Defendant's parental rights were never terminated and thus found no basis for vacating the Defendant's arrears. With respect to the Defendant's claim of disability, he did not submit any medical information. Therefore, the Appellate Division affirmed the decision of the Family Court. If you anticipate that it may be beneficial to you to seek a post-judgment modification of a Court Order regarding a 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 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 is intended to replace the advice of an attorney.

Emancipation Does Not Eliminate Child Support Arrearage

Berthoumieux-Egas v. Berthoumieux, is a post-judgment dissolution matter in which the Defendant, father, appealed from a 2013 Family Court Order that denied his Motion for reconsideration regarding the emancipation of the parties' daughter and subsequently his child support obligation. The Family Court judge stated in his statement of reasons for denying the Defendant's Motion that the Order from which the Defendant appealed was the result of the undisputed emancipation of the parties' only child. The Order was the result of the exchange of Motions in which the Defendant sought his daughter's emancipation and requested to pay $25 a week towards his support arrears. The Plaintiff sought an Order that directed the Defendant to pay to her $8,000 as reimbursement for payments she made for the child's college and medical expenses. The Family Court granted the Defendant's request to emancipate the child, granted the Plaintiff's request to increase the Defendant's arrears and denied the Defendant's request to maintain his current arrears payment of $25 a week. The amount of increase in the Defendant's arrears payments to $191 a week was equal to his total weekly support obligation for his daughter. The Defendant submitted a Motion for reconsideration which was denied. The Family Court stated that it denied his Motion because it failed to meet the standards for consideration as defined by Court Rule 4:49-2 because the Defendant failed to show where the court erred and failed to provide any case law or statute that was contrary to the court's decision. The Defendant appealed. According to the Appellate Division, it could not perform its appellate function because the Defendant failed to provide a complete appendix which should have included copies of the Motions he filed with the supporting financial documents. Lacking those documents, the court could not determine if the Family Court improperly denied the reconsideration Motion. The Defendant's failure to provide these documents breached his "oblig[ation] to provide the court with 'such other parts of the record . . . as are essential to the proper considerations of the issues.'" Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177, 789 A.2d 138 (App. Div. 2002); N.J. Court Rules 2:6-1(a)(1)([I]) and 2:6-3. Therefore, the Appellate Court affirmed the decision of the Family Court. If you are considering action in the NJ Family Court, the process can be complicated. Often the results litigants seek are postponed or denied due to lack of knowledge regarding court procedure or filing requirements making it essential that you consider retaining a family law attorney to represent your interests. For more information about post-judgment modification, emancipation, divorce, 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.

Father Ordered To Participate In Parenting Time With Daughter

R.R. v. L.A.C., is a matrimonial divorce action focusing on parenting time in which the Plaintiff (the non-custodial parent) did not answer the Complaint but attended the default divorce hearing and asked to voice his apprehensions about having parenting time with his daughter. The Plaintiff, the father, worked full-time and the Defendant, mother, worked part time earning minimum wage and lived with the parties' daughter. At the default divorce hearing the Plaintiff requested a divorce with the possibility of future parenting time "when [he] [was] ready." The Defendant requested that the Plaintiff be available to help raise their child. The Plaintiff emigrated from Peru to the United States in 1987. He returned to Peru years later and the parties married there in 1993. They lived separate and apart for the majority of their marriage after he returned to the United States in 1997. Although he returned to Peru a few times he did not see his wife and daughter from 2002 through 2013 when he sponsored their emigration from Peru in 2013. The parties' daughter had no recollection of her father. Difficulties within this family emerged immediately because the Plaintiff desired to live separate and apart from his family with little involvement in their lives. Further, the child, who was thirteen years old, was having extreme difficulties assimilating into the American school system. She was constantly bullied due to her cleft palate, hearing loss, and impaired speech. Seeing no way out, the Defendant sent the child back to Peru to live with her maternal grandmother. Within a few months, the child returned to the United States to be with her mother. During the default hearing, the judge noticed the child sitting in the back of the courtroom and with the aid of an interpreter asked her questions about her relationship with her father. She meekly asked the court ". . . if it [was] possible for him [her father] to see [her] once a week," and then hesitated and requested that she would like "to give him a hug." The court then questioned the father who explained that he was very uncomfortable about seeing his daughter and that he was not ready to spend time with her without the aid of therapists. According to the court, a custodial parent is entitled to the non-custodial parent's assistance. Non-custodial parents should assist custodial parents in raising and nurturing their children unless there is a Court Order prohibiting them from doing so. Further, the court has the equitable authority to facilitate parenting time between children and absent parents, to order counseling, and to require parents to complete parenting programs and "in promoting the child's welfare, the Court should [make] every effort to attain for the child the affection of both parents." In re Jackson, 13 N.J. Super. 144, 147-48, 80 A.2d 306 (App. Div. 1951). "The Family Court possesses broad equitable powers to accomplish substantial justice." Finger v. Zenn, 335 N.J. Super. 438, 446, 762 A.2d 702 (App. Div. 2000). In this case, the court entered an Order requiring the Plaintiff to call his daughter and see her weekly and identified low cost counseling and programs that promoted fathering skills. If you believe that a modification to your parenting time schedule or plan may be beneficial to you it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, parenting time, equitable distribution, 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 if an attorney.

Decision To Award Sold Custody of Children Appealed

In Wu v. Liu, the Defendant appealed the decision of the New Jersey Family Court awarding sole child custody to his ex-wife and other issues. The Appellate Division affirmed the decision of the Family Court. The Plaintiff and Defendant were married in 1995 and emigrated to the United States from China shortly after that. They were married and divorced once before when they lived in China. In 1996, the Plaintiff gave birth to a daughter and a son was born in 2001. In 2011, the Plaintiff filed a Complaint for divorce. The parties represented themselves in the divorce and the matter was tried as to all issues in the Family Court. In 2014, the judge issued the final judgment of divorce and awarded the Plaintiff with sole legal and residential custody of the children, ordered the Defendant to pay $297 a week in permanent alimony, and equitably distributed the parties' real property in Belle Mead and Princeton. The Defendant hired an attorney and an appeal was filed. The Defendant supplied transcripts of the divorce proceedings and his brief referenced the proceedings, but the Family Court judge's finding of fact and conclusions of law were not contained in the brief. Further, no statement of reasons were included with the divorce judgment. The Plaintiff, who represented herself in the appeal, filed her brief in opposition, the Appellate Court became aware that the Family Court judge had forwarded the judgment to the parties on the day it was filed along with a recording of his statement of reasons which were orally placed on the record. The Appellate Division, exercised its discretion not to dismiss the appeal, although the Defendant clearly violated the court rules. N.J. Court Rule 2:5-3(b), requires, with limited exception, that the "transcript shall include the entire proceedings in the court . . . from which the appeal is taken." Instead, the court ordered the Defendant to provide transcripts of the Family Court judge's findings and conclusions - which the Defendant complied with. The Defendant argued that the Family Court judge erred in denying his request for legal and physical custody of the children, amongst other issues. The Appellate Court affirmed the decision of the Family Court, citing that it applied the deferential standard that "[T]he decision concerning the type of custody arrangement [is left] to the sound discretion of the trial court[.] Nufrio v. Nufrio, 341 N.J. Super. 548, 555, 775 A.2d 637 (App. Div. 2001); Pascale v. Pascale, 140 N.J. Super. 583, 611, 660 A.2d 485 (1995). Further, "Custody issues are resolved using a best interests analysis that gives weight to the factors set forth in N.J.S.A. 9:2-4(c)." Hand v. Hand, 391 N.J. Super. 102, 105, 917 A.2d 269 (App. Div. 2007). The Defendant claimed that the judge ignored his evidence and relied "primarily" on the report of a psychologist who was appointed to evaluate the case by the judge pursuant to Court Rule 5:3-3. The expert's report cited the Defendant's repeated belief that a person in China whom the Defendant was calling "Mawei" was directing witchcraft at the family which caused all of the problems between he and his wife and children. The expert recommended that the Plaintiff have custody of the children, subject to supervised parenting time with the Defendant. According to the Appellate Division, the judge did much more than simply rely on the report as a basis for his custody decision in that the judge addressed all of the relevant statutory factors in detail, as well as, cited to the testimony of the parties and making credibility determinations as a result. The Appellate Division affirmed the judge's decision finding no reason to disturb the ruling. 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, equitable distribution, 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.

Parenting Time Plan Upheld By NJ Appellate Division

In N.S. v. D.O., the Defendant appealed from a Court Order which set forth a parenting time schedule because he felt that the Order did not provide him with the "full measure of his parental rights" by denying him liberal and reasonable parenting time. In 2010, the Plaintiff obtained a temporary restraining order (TRO) against the Defendant under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. At the same time she filed a Complaint for Divorce against him. The Family Court judge assigned to the case referred the matter to the Bergen Family Center (BFC) for the purpose of conducting a custody/parenting time evaluation. In 2011, the BFC issued a very detailed written report documenting its evaluation and recommendations. The evaluator interviewed the parties, the children, the grandparents, the Defendant's treating psychologist, the treating pediatrician of the children, a DYFS worker who investigated a prior claim that the Defendant made (after losing parental rights) that the parties' daughter was sexually abused by her maternal grandfather, and many others. The evaluator acknowledged that the case was "a highly charged situation for everyone involved," and although the Defendant had not had access to his children since the FRO was issued, the evaluator recommended that the prohibition against him having parenting time with his children should "be modified at this time," and that reunification with his children should proceed under the guidance of the son's therapist. Finally, it was recommended that after at least six (6) sessions without contradictions the Defendant should be permitted supervised visitation which should continue for at least six (6) months. After this, the Defendant could petition the court for the supervision to be lifted. The parties executed a Consent Order on May of 2011 that tracked the recommendations of the BFC evaluator. It was later ordered that both parties submit to the court proposed parenting time plans. Upon the submission of both parenting time plans, the judge observed that there was "not that much of a difference" between their proposed plans and described their argument regarding holidays as "minor." The judge then indicated that she would prepare an Order that blended their two proposals providing them with "something [they] both [could] live with . . . that allows both of [them] to continue to work together." Subsequently, the judge prepared a very detailed Order concerning custody and parenting time that provided that the Defendant receive unsupervised visitation on alternate weekends, without overnights, until the 2014 school year when the weekend visitations were to become overnights. The Defendant appealed arguing that the schedule was unreasonably restrictive without providing any reasons for being so. The Appellate Division disagreed. According to the Appellate Court, in reviewing the Order of the Family Court, it "defer[ed] to the factual findings of the trial court," N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104, 952 A.2d 436 (2008). In doing so it recognized the "family court's special jurisdiction and expertise in family matters." N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343, 990 A.2d 1097 (2010); Cesare v. Cesare, 154 N.J. 394, 413, 713 A.2d 390 (1998). It is only when the Family Court's conclusions are ". . . so 'clearly mistaken' or 'wide of the mark'" that the Appellate Division will intervene and make its own findings. In this case, the court found that the Family Court judge held that the parenting plans submitted by the parties were not that different and the differences that did exist were minor. The judge's stated goal of blending the proposals to create an equitable Order that each party could live with was achieved and therefore there was no reason to disturb the Family Court's Order. Custody and Visitation are extremely sensitive issues wherein an appropriate balance between the needs of the child with the existing situation of each parent. If you believe that a modification to your custody or parenting time may be beneficial to you it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, parenting time, equitable distribution, 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 if an attorney.

Mediated Agreement Without Party Signatures Was Held To Be Binding

In Campbell v. Campbell, the Defendant appealed from the incorporation unsigned parenting time agreement into the parties' final divorce judgment after a failed attempt at mediation. The Appellate Division affirmed the decision of the Family Court. The parties in this case have two (2) sons who were aged six and ten at the time of the agreement. The younger son has special needs and has suffered from epilepsy. The terms of the agreement in question were reached during a mediation which was held in 2012. The agreement was written down by the mediator. The resulting Memorandum of Understanding (MOU) was unsigned, but the case was reported to the court as settled concerning all parenting time issues. The Defendant filed an Answer to the divorce Complaint, before the mediation, containing a parenting time plan that gave him the same schedule with the children that was reached in the MOU except rather than two week night dinner visits, he would have had one weekly dinner and one weekly overnight visit. In the MOU the parties agreed to joint legal custody along with the parenting time designation for each parent including summer vacations and holidays. The reasons for the delay in signing the MOU were disputed, but in the interim, the Defendant rejected the terms of the MOU unless the Plaintiff agreed to modify it to include two (2) weekly overnights with his children along with some other changes. The Plaintiff agreed to make some of the changes but not all. Two months after the mediation session and after the continued negotiation the Defendant rejected the MOU. In 2013, the Plaintiff filed a Motion seeking to incorporate the MOU into the parties' divorce decree. The Family Court judge granted the Plaintiff's Motion after observing that the children substantially benefited from the parties' agreement and that the MOU could be modified slightly for the best interests of the children. According to the Appellate Division, it is well established that our judicial system encourages and supports negotiated agreements between divorcing parties. Weishaus v. Weishaus, 180 N.J. 131, 143 (2004); Konzelman v. Konzelman, 158 N.J. 185, 193 (1999). Mediation is an alternative means of resolving parenting conflicts and is also available to "resolve aspects of family law matters." Court Rule 1:405(b)(2). The statutory source for mediation is the Mediation Act, N.J.S.A. 2A:23C-1 to -13. The court found that in this case, after the parties reached an agreement, the Defendant had a gradual change of heart and that triggered a new round of litigation . Under the circumstances, the Appellate Division affirmed the decision of the Family Court holding that the Family Court judge's ultimate decision to incorporate the MOU into the divorce decree was based upon weighty equitable considerations that warrant the enforcement of the document. If you believe that mediation is possible in your divorce or family law matter be sure to contact an attorney experienced in mediation and proper drafting and execution of Memorandums of Understanding. For more information about mediation, post-judgment modification, parenting time, equitable distribution, 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 if an attorney.

Reduction In Child Support After Incarceration For Arrears

In Solomon v. Solomon, the Defendant appealed from a 2013 Family Court post-judgment Order that granted the Plaintiff's Motion for reconsideration to compel the Defendant to pay substantial child support arrears from his 50% share of his 401(k) or IRA and the proceeds from the sale of a timeshare property. The parties in this case were married in 1996 and had three (3) children. They executed a property settlement agreement (PSA) in 2006 which was incorporated into their final dual judgment of divorce on the same day. The PSA required the Defendant 1) to pay the Plaintiff $300 a week in child support, and $325 per week in alimony for five (5) years; 2) divide the Defendant's 401(k) equally between the parties; and (3) divide the parties' ownership and usage of their timeshare property equally. In 2007, the court assigned to the Plaintiff an amount equal to 50% of the value of the Defendant's IRA and found that the Defendant violated the Plaintiff's rights by willfully failing to turn over to her half of the 401(k) in accordance with the provisions of their PSA. In 2009, the Defendant was sentenced to seven (7) years in prison. Subsequent to his entering into the PSA but before his incarceration, he was required to pay $35 per week toward support arrears. While he was incarcerated, the Defendant submitted an application to reduce his child support payments to $5 a week, to terminate his alimony, and to terminate his payment towards arrears. He argued that his incarceration amounted to a change in circumstances. In 2011, a Family Court judge denied the Defendant's request to decrease his child support payments, but suspended the enforcement of his support obligations pending his release. By consent, the Defendant's alimony obligation was terminated retroactive to 2008. In 2011, the Defendant was released to a work house. In 2013, the Family Court issued an Order pertaining to his child support obligation to which the Defendant moved for reconsideration. The judge who heard the Motion arguments, granted the Defendant's Motion for reconsideration and ordered that 1) the Defendant maintain his 50% interest in the 401(k); 2) the parties continue to share ownership of the timeshare, 3) the parties submit current case information statements, and 4) denied the Defendant's request to stay his existing child support obligation. In the interim, the Defendant's child support obligation was increased due to a cost of living increase and another judge ordered that the Defendant pay $35 a week towards his $90,358.64 arrears. In response, the Plaintiff filed a Motion for reconsideration which was granted and the Defendant was ordered to pay half of his 401(k) or IRA toward his child support arrears and to convey his interest in the parties' time share to the Plaintiff to put towards his arrears. This Order also reduced the Defendant's child support from $366 week to $66 and ordered that he pay an additional $100 per week ward his arrears. The Defendant appealed arguing for a strict enforcement of the terms of the PSA. According to the Appellate Division, "Marital agreements are essentially consensual and voluntary and as a result, they are approached with a predisposition in favor of their validity and enforceability." Massar v. Massar, 279 N.J. Super. 89, 93 (App. Div. 1995). Yet, in this case, the court was guided by its long-standing view that the " . . . obligation to provide child support 'is engrained in our common law, statutory, and rule-based jurisprudence.'" Colca v. Anson, 413 N.J. Super. 405, 414 (App. Div. 2010). "Child support is the right of the child and responsibility of both parents, not a child won or lost by the custodial parent from the non-custodial parent." Pascale v. Pascale, 140 N.J. 583, 591 (1995). When considering all guiding principles that inform child support decisions and its standard of review, the court was satisfied that the lower court enforced the parties' PSA to the children's best interests and therefore affirmed the decision of the Family Court. If you anticipate that it may be beneficial to you to seek a post-judgment modification of 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 modification, child support, alimony, divorce, 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.

Fiance's Drinking Does Not Affect Father's Parenting Time

In Santos v. Yanez, the Defendant appealed from a post-judgment Family Court Order that denied her Motion for Reconsideration with regard to the custody of her daughter and the Plaintiff's parenting time. The Appellate Division affirmed the decision of the Family Court. The parties in this case were divorced in 2011. They only have one (1) child, a daughter, who was nine years old at the time of the appeal. In 2012, the parties entered into a Consent Order that directed that they share joint legal custody of their daughter but specified that the Defendant was to be the parent of primary residence. A year and a half later, the Plaintiff's fiancé picked up the parties' child from school because he was unable to. Upon leaving the school, the fiancé's car lost control and struck a tree. She was charged with careless driving, driving while intoxicated, and refusal to provide a breath sample. The parties' daughter was severely injured. A month following the accident, the Defendant filed an Order to Show Cause (OTSC) seeking temporary sole custody of the child and a drastic restriction on the Plaintiff's parenting time. The Defendant also sought to have the Plaintiff's fiancé barred from ever being in the presence of the child again. The Family Court denied the Defendant's application for emergent relief but barred the Plaintiff's fiancé from having any contact with the child. The OTSC was converted to a Motion and scheduled for a return date. The court found that the Defendant failed to establish a prima facie case that their daughter was suffering from a genuine and substantial harm from remaining in the Plaintiff's custody as none of the injuries suffered by the child could be attributed to the Plaintiff's conduct. The Defendant filed a Motion for Reconsideration. The court denied the Motion and the Defendant appealed. The Appellate Court affirmed the decision of the lower court finding that motion reconsideration is appropriate when a court's previous decision was "based upon a palpably incorrect or irrational basis," or failed to consider or appreciate "probative, competent evidence [,]" or where a "litigant wishes to bring new or additional information to the [c]ourt's attention which it could not have provided on the first application [.]" D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). In this case, the Appellate Court held that the record fully supported the Family Court's decision based upon the facts presented and upon the observation "that [d]efendant's motion [was] almost identical" to a prior motion that she submitted and therefore there was no abuse of discretion in the court denial of her request. Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996). If you believe that a post-judgment modification to your child custody or parenting time arrangement may be beneficial to you it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about post-judgment modification, child custody, parenting time, 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 if an attorney.

Court Affirms Child's Emancipation Over Mother's Protests

In Almeida v. Dykhouse, the parties have been engaged in repetitive litigation with regard to financial issues concerning the custody and emancipation of their son. The parties were never married and their son was 23 years old at the time of this appeal. The issues that were the result of the appeal arose out of a Family Court judge's opinion issued in 2014. In that opinion, the judge emancipated the parties' son as of 2012 and granted the father a child support credit from 2008 through the date of emancipation in 2012. Further, the father was ordered to pay certain arrears on child support and college costs upon an audit that was to be conducted by the Probation Department. The audit determined that the father owed $414 to the mother after considering other credits. The mother appealed from the Family Court's ruling challenging the retroactive medical credits awarded to the father and the Court Order emancipating the son as of 2012. She argued that the court should have delayed the date of her son's emancipation until the end of 2013 when he stopped taking courses at a community college. The Appellate Court affirmed the decision of the lower court determining that the son had attained the age of majority and had sufficiently moved beyond the sphere of influence and responsibility of his parents to be emancipated. Filippone v. Lee, 304 N.J. Super. 301, 308, 700 A.2d 284 (App. Div. 1997); Llewelyn v. Shewchuck, Super. LEXIS 60 (App. Div. 2015) (slip op. at 7). Therefore, even though he may have still been taking some classes at a community college he was no longer being supported by his parents and was able to support himself outside the home. The Appellate Division saw no reason to disturb the judge's rulings, including the retroactive credits awarded to the father for past health insurance premiums. The court also noted that although the parties continued to disagree over the court's calculations regarding the credits and arrears, the Appellate Court was satisfied that the remaining issues were de minimis in nature and did not require it to make any further rulings with regard to them. N.J. Court Rule 2:10-2. In New Jersey child emancipation does not automatically occur once a child reaches the age of majority and a party wishing to seek the legal emancipation of a child much petition the court to do so. If you have questions regarding the legal standard for emancipation or how a child's emancipation affects a parent's child support obligation it is critical that you seek out the advice of an experienced attorney before moving forward. For more information about emancipation, 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 intended to replace the advice of an attorney.

Bringing Child To Concert Is Not Reason For Custody Change

In the recent child custody case, Zoe v. Zoe, parents of an 11 year old girl disagreed on whether or not it was appropriate for the mother to bring the parties' child to see the singer P!nk in concert at the Prudential Center in Newark, New Jersey. The Honorable L.R. Jones, J.S.C. of the Superior Court of New Jersey held that following a divorce, each parent serving as a joint legal custodian has the right to exercise reasonable parental discretion over a child's activities while in that parent's physical care, free from unreasonable interference or obstruction from the other parent. This reasoning is based upon the constitutional right that each parent has to exercise reasonable discretion when determining what social activities, such as the performing arts, to expose his or her child to. According to the judge, while divorced parents may disagree, from time to time, on what is appropriate for their children to be exposed to, the court will generally not interfere with either parent's freedom of personal discretion on the issue and will not hold a parent's decision as evidence of improper parenting in a child custody case unless evidence indicates that the child was exposed to something so objectively age-inappropriate that no reasonable person would disagree. Judge Jones found that being that rock and roll music is a valid and highly recognized form of creative artistic expression in this county the Defendant-mother's decision to take her daughter to a P!nk concert during her parenting time with the child was reasonable and appropriate. In his opinion, Judge Jones reasoned that each parent has a fundamental and constitutional right to make decisions regarding a child in his or her custody or care. Stanley v. Illinois, 405 U.S. 645, 651 (1972). According to Troxel v. Granville, 530 U.S. 57, 65-66 (2000), the Constitution of the United States of America protects this very right under the Due Process Clause of the Fourteenth Amendment. Therefore, the court held that "[i]nherent in this right is the ability of a parent to exercise reasonable parental discretion on child-related choices without undue interference from the state." Judge Jones opined that in situations where the parties are joint legal custodians of a child public policy encourages communication, cooperation, and hopefully a consistency between the parties on parental decisions. Beck v. Beck, 86 N.J. 480, 488 (1981); Grover v. Terlaje, 379 N.J. Super. 400, 406 (App. Div. 2005); Hoefers v. Jones, 288 N.J. Super. 590, 601 (Ch. Div. 1994). 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, non dissolution cases, divorce 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.