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.

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.

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.

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 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.

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.

Parenting Time Modification Requires Adequate Change Of Circumstances

In Tedeschi v. Ferragine, a post-judgment divorce matter, the Defendant appealed from Family Court Orders that reduced his parenting time and set his child support amount. The parties were marred in 2000 and divorced in 2008. The Plaintiff gave birth to two (2) sons during the marriage and pursuant to the parties' property settlement agreement (PSA) they agreed to share joint legal custody of the children and designated the Plaintiff as the parent of primary residence. Following their divorce, the Plaintiff married a man who lived in Massachusetts. In 2012, the court granted the Plaintiff's request to relocate with the children to Massachusetts and modified the Defendant's parenting time arrangement accordingly. After this, the court entered multiple Orders following a series of Motions filed by the parties concerning the Defendant's parenting time and child support obligation. The Defendant appealed from provisions that pertain to both arguing that the court erred by reducing his parenting time and calculation his child support. According to the Appellate Division: "Orders defining a parent's right with respect to contact with his child are subject to future revision depending on a showing of changed circumstances." Finamore v. Aronson, 382 N.J. Super. 514, 522 (App. Div. 2006); Voit v. Voit, 317 N.J. Super. 103, 121 (Ch. Div. 1998). The "Modification of the order may be appropriate if the moving party shows the modification requested is in the best interests of the child." Todd v. Sheridan, 268 N.J. Super. 287, 398 (App. Div. 1993); Mastropole v. Mastropole, 181 N.J. Super. 130, 136 (App. Div. 1981). In this case, the Family Court reduced the Defendant's parenting time because it determined that the Defendant was "keeping a scorecard to benefit himself, instead of trying to cooperate for the best interests of [the children]." The Appellate Court held that this finding does not elucidate and the record did not reveal what circumstances had changed and why it was in the best interests of the children to warrant cutting back Defendant's parenting time. Therefore, the ruling was reversed. In addition, the court directed that the Defendant pay child support in the amount of $196 a week for a period of time before it was to be raised to $188 per week. The court found that the Family Court made this ruling in error based upon evidence submitted reflecting the dates in which the Plaintiff was earning a certain salary. Therefore, the Appellate Court reversed this provision in the Order as well. If you anticipate that it may be beneficial to you to seek a post-judgment modification of your parenting time arrangement or 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, parenting time, child relocation, 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. ParParenting Time

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.

No Custody Change Absent Changed Circumstances

In B.T. v. T.T., a case that was appealed from Union County, the Defendant appealed from a 2013 Family Court Order that denied her application to gain custody of the parties' daughter. The New Jersey Appellate Division affirmed the Order pertaining to the custody issue. According to the Appellate Division, a party "seeking to modify custody must demonstrate changed circumstances that affect the welfare of the children." Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007); Borys v. Boyrs, 76 N.J. 103, 115-16 (1978). A party seeking such a modification bears the burden of proof. Innes v. Carrascosa, 391 N.J. Super. 453, 500 (App. Div.) certif. denied, 192 N.J. 73 (2007). In the case on appeal, the parties' daughter was born in January of 2006 and was removed from the Defendant's custody in 2011 following an armed home invasion of the apartment that she shared with her boyfriend. The child began living with the Plaintiff, her father, in Pennsylvania at the time. In March of 2011, the Family Court issued an Order continuing the Plaintiff's temporary custody of the child. In 2012, the court held a two-day hearing regarding the custody of the parties' child on the application of the Defendant to regain custody. The court subsequently denied the Defendant's Motion and continued the custody of the child with the Plaintiff and gave the Defendant visitation on alternate weekends. In 2012, the Defendant made allegations that the Plaintiff was not properly attending to the child's medical and dental needs, allegations that the Plaintiff refuted. In 2013, a Family Court judge noted that he was in receipt of a report from the DCP&P that investigated the allegations against the Plaintiff and found all to be unfounded. The report also indicated that the Defendant's allegations against the Plaintiff date back to 2007 and all "have been deemed repetitive and . . . unfounded." The Family Court judge carefully reviewed the entire record and found no evidence to support the Defendant's different allegations against the Plaintiff and also finding that she failed "to make a showing of substantial change in circumstances." Therefore, denying her request for a change in custody. For the same reasoning, the Appellate Division affirmed the Family Court's decision to deny the Defendant's request. 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, mediation, 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.

Mediation Of Custody and Parenting Time Issues

In the recent Appellate Division case, D.A. v. R.C., the court remanded the parties to mediation to attempt to resolve issues regarding the child custody and parenting time arrangement with regard to their son because the Family Court failed to properly address the legal and factual issues of the case. The parties' son Jeremy was born in 1998. The parties, in 2002, executed a Consent Order for joint custody which specified that Jeremy would live with D.A. and enjoy liberal parenting time with R.C. In 2012, R.C. submitted a Motion to the court to alter the Consent Order to have Jeremy live with him because his relationship with D.A. had disintegrated. D.A. objected to the Motion arguing that the custodial arrangement was only intended to be temporary to allow her to graduate from the police academy. During three (3) hearings that were conducted on this issues the parties each presented completely opposing views with regard to their custody arrangement. D.A., the Plaintiff, argued that R.C., the Defendant's, home life was filled with domestic violence which endangered Jeremy and make R.C. unfit to be her son's residential parent. The Defendant argued that D.A.'s adversarial parenting style drove their son away from her so much that he did not want to live with her. The Appellate Division found that due to the level of informality with which the hearings were conducted the resolutions that were adjudicated with regard to the disputed issues were precluded. According to the record, the trial judge was not aware that due to the fact that Jeremy's parenting time and custody were genuine and substantial issues that were unresolved, he was obligated under Rule 5:8-1 to refer the case to mediation. Due to this oversight, the Appellate Division remanded the case to mediation so that the parties could attempt to resolve the issues that remained. Based upon the parties' history of antipathy towards each other and their prior unwillingness to attempt to reach a mutual compromise the Appellate Court directed that the Family Court closely oversee the mediation. Further, if mediation failed to resolve the parenting time and custody issues the Family Court judge was directed to conduct a hearing to solve the factual disputes and legal findings on the record as is required by N.J.S.A. 9:2-4(f) and N.J. Court Rule 1:7-4(a) by either interviewing Jeremy in camera or placing the reasons for not doing so on the record. Finally, the Family Court judge must consider the factors found in N.J.S.A. 9:2-4(c) to reach a decision because he previously failed to consider them. 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, mediation, 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 Wins Custody Appeal After Husband Violates Order

In the recent Appellate Division case, Luyster v. Colucci, the Plaintiff, Jennifer Luyster, appealed from a 2013 Court Order denying her Motion to Enforce Litigant's Rights against the Defendant, James Colucci, to enforce a court ordered parenting time schedule. The Appellate Division reversed and remanded the decision of the lower court back for a hearing on the Motion. The parties in this case were married in 1997 and two (2) children were born of the marriage in 2000 and 2002 respectively. In 2003, the parties obtained a final divorce judgment which incorporated a Consent Order that defined custody and parenting time. The parties were to share joint custody of the children with the children living with the Plaintiff as the parent of primary residence. Further, the agreement specified that the Defendant was to have the children for two (2) weeks each summer. In 2013, the Plaintiff filed a Motion with the court requesting that it find that the Defendant was in violation of litigant's rights for interfering with the parenting time schedule because he retained the children for longer than his agreed-upon summer parenting time. The trial court issued an Order in September 2013 denying the Plaintiff's Motion as moot because the summer was over and therefore the issue of summer parenting time was no longer resolvable. The Plaintiff appealed from this decision arguing that the court erred by not making a determination as to whether or not the Defendant's conduct violated litigant's rights and the parenting time schedule. The Appellate Division held that the trial court erred in deciding that the Motion to enforce litigant's rights was moot because "summer vacations [were] over." The Appellate Court found that in addition to a Motion to enforce litigant's rights under N.J. Court Rule 1:10-3, additional remedies are available for violations of custody and parenting time Orders, including compensatory time with the children, economic sanctions, court-ordered counseling, and modification of the custodial arrangement pursuant to N.J. Court Rule 5:3-7(a). Ultimately, the fact that the summer was over when the trial court heard the Plaintiff's Motion did not prevent the court from addressing and remedying any violation that may have occured. Pasqua v. Council, 186 N.J. 127, 133 (2006); P.T. v. M.S., 325 N.J. Super. 193, 208 (App. Div. 1999). The Appellate Division agreed with the Plaintiff's argument on appeal and reversed and remanded the decision of the Family Court for a hearing on the Plaintiff's Motion to enforce litigant's rights. 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.