Post Divorce Challenge To Alimony And Child Support Findings

In Wicker v. Wicker, James Wicker challenged the method in which his alimony and child support obligation was calculated. Specifically, Wicker challenges the court's determination of his monthly expenses and income in arriving at his available funds from which child support for the parties' 3 daughters may be paid. Wicker contended to the NJ Appellate Division that the court did not adequately consider his expenses in commuting from Virginia to New Jersey every other weekend in order to exercise his parenting time and failed to properly include his rental expenses and was inequitable in creating the need for him to remain employed in Washington, D.C. which necessitated the retention of two separate residences. Tara and James Wicker entered into a voluntary and negotiate, but not complete, property settlement agreement (PSA) leaving some remaining issues for the court to decide. From 1996, the date of the parties' marriage, until 2010, the defendant earned under $100,000. In 2010, the defendant secured an income of approximately $190,000 per year leading up to the parties' divorce in 2013. Two of the parties' 3 daughters had significant medical issues and Tara Wicker was the primary caretaker. An employability expert determined that Tara Wicker's long-term absence from the job market and need to care for the children limited her earning capacity to $35,000 per year. Both parties challenged the figures which should be used in determining income. There was also substantial question as to how the defendant arrived at his monthly expenses, including his claim of $9,000 monthly in pendente lite support. The NJ Appellate Division began the analysis with Cesare v. Cesare, 154 N.J. 394 (1998), which dictates that decisions of the court below will remain undisturbed if supported by the weight of credible evidence and law, and Gnall v. Gnall, 222 N.J. 414 (2015), dictating that decisions of the court below will be disturbed if the court below abused its discretion or the findings are not consistent with the credible evidence and legal principles. The Appellate Division reasoned that N.J.S.A. 2A:34-23(b) empowers judges with the authority to fashion individual solutions best suited to meet the needs of both parties. Randazzo v. Randazzo, 184 N.J. 101 (2005). In affirming the decision of the court below, the court found that the trial judge gave full review to the facts, including the defendant's income and expenses, and the findings were supported by the weight of credible evidence under the guiding principles of law. A divorce will likely have a considerable impact on your life, including determinations about support, custody and parenting that affect where and how you and your family will live. If you are considering divorce or modification of a prior judgment, you should first consult with an experienced family law attorney to determine the likely outcome. For more information about divorce, alimony, child support, relocation with a child and other family law matters visit DarlingFirm.com. This blog is for informational purposes 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.

Father Obtains Permission To Relocate With Children

In the recent Appellate Division case out of Morris County, Valedofsky v. Valedofsky, the Defendant, Jennifer Valedofsky, appealed from a post-judgment 2013 Court Order that allowed the Plaintiff, David Valedofsky, to relocate with their children from New Jersey to Rhode Island. The Appellate Court affirmed the decision of the Family Division. The parties in this case were married in 2000 and subsequently had two (2) children, born in 2004 and 2006 respectively. They obtained a divorce in Pennsylvania in 2010 and the Defendant was directed to be the custodial parent for the children. In 2011, the Plaintiff, who was living in New Jersey applied to the court to gain custody of his children. The Plaintiff was granted primary custody of the children. After this, the Defendant relocated to New Jersey to be closer to her family and her children. She then moved before the court in New Jersey for a 50/50 custody share. In 2012, the judge denied her Motion due to no change in circumstances. In 2013, the Plaintiff filed a Motion with the court to relocate with the children to Rhode Island because he received a promotion in his job that included a raise and expanded his opportunities to further advance within his company. Further, his entire extended family lived in Rhode Island. The Defendant opposed the Motion contesting that the Defendant's application for relocation was not made in good faith and cross moved for custody of the children. The Motion judge granted the Plaintiff's Motion to relocate after applying the factors found in Baures v. Lewis, 167 N.J. 91 (2001), and finding that the request was made in good faith that included benefits for the children. The Defendant appealed from this judgment. The Appellate Division held that when the physical custodial relationship among a set of parents is such that one parent serves as the primary caretaker and the other parent as secondary caretaker, then the custodial parent's request to relocate is governed by the two-part test found in the Baures case. Id. at 122. The test requires that removal be permitted where the preponderance of the evidence demonstrates the custodial parent has a good faith reason for the move and the move will not be inimical to the children's interests (the children will not suffer from the move). This standard ensures that the custodial parent has the right to seek happiness and fulfillment and guarantees regular communication and contact between the non-custodial parent and the child and incorporates a variation on a best interests analysis by requiring proof that a child will not suffer from the move. MacKinnon v. MacKinnon, 191 N.J. 240, 257 (2007). In this case, the judge that ruled on the Plaintiff's Motion analyzed all applicable factors and found that the Plaintiff made a prima facie case that the move was in good faith and would not be inimical to the children. The Defendant did not provide the court with any proof that the move was not requested in good faith or that it would be harmful to the children. Therefore, the court affirmed the decision of the Family Division. Disputes regarding child relocation can be of the most important in family law because of the substantial impact that decisions regarding these issues will have upon the lives of the parties and their children. If you are involved in a child relocation dispute it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information on child relocation, custody and visitation, parenting time, divorce, or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and is in no way intended to replace the advice of an attorney.

Denial Of Petition To Relocate Child Out Of United States Is Appealed

In a recent Appellate Division child relocation case, Gertseva v. Stamper, the Plaintiff, Lidia Gertseva appealed from part of a Family Court Order from 2012 that prohibited either party from removing their daughter from the United States without the express consent of the other party or a Court Order permitting such a removal. The Appellate Division affirmed the decision of the lower court. The parties in this matter obtained a divorce in 2008. During their marriage, the Plaintiff gave birth to a daughter who was eight years old at the time of this litigation. In 2008, the Family Court granted the Plaintiff's Motion which sought permission to relocate with the parties' daughter to Russia and specified that the Plaintiff and the Defendant, James R. Stamper, would share joint legal custody over the child, New Jersey would retain jurisdiction over the child, and the that the Plaintiff would have to follow the parenting time schedule established in the Court Order. The Plaintiff and her daughter relocated to Russia for about one year before returning to the United States to live in Virginia. In 2012, the Plaintiff filed another Motion seeking to modify the Court ordered parenting time schedule and to name her as the custodian of her daughter's passport. In the judge's Order it was specified that the Plaintiff could take the child to Russia for the Christmas holiday and that the child's passport "shall be provided upon request for travel when necessary to the parting travelling" with their daughter. Finally, the judge included that neither the Plaintiff nor the Defendant is allowed to remove the child from the United States without the written consent of the other parent or by Order of the court. The Plaintiff appealed from this decision. According to the Appellate Division, "More than financial contests, custody and parenting time disputes trigger the need for a family judge, acting as parens patriae, to prevent harm and protect the best interests of children." Parish v. Parish, 412 N.J. Super. 39, 52-53 (App. Div. 2010). In its holding, the Appellate Court found that upon its review of the record, the Family Court judge did not exceed or abuse his parens patriae authority to act in the best interest of the child. The record reflected that there were recurrent disputes between the parties about their daughter's travel out of the country and her absence from school. The Family Court judge's Order reflected his concern with this, in that he narrowed the time the daughter could be out of the country and ordered when she would return to school. The Appellate Court noted that since the Plaintiff had returned to America for an extended duration of time and because she no longer resided in Russia, it found that there was no reason to revisit the issue of child relocation either by consent or by application to the court. If the Plaintiff desired to relocate to relocate with the child to Russia in the future, the Family Court would be capable of rendering a decision on the facts as they exist at that time. Disputes regarding child relocation can be of the most important in family law because of the substantial impact that decisions regarding these issues will have upon the lives of the parties and their children. If you are involved in a child relocation dispute it is imperative that you seek out the advice of an experienced attorney before proceeding. For more information on child relocation, child support, post judgment modification, divorce, or other family law matters in New Jersey visit Darlingfirm.com. This blog is for informational purposes and is in no way intended to replace the advice of an attorney.

Same-Sex Couples In NJ Should Check Twice Prior to Relocation

There is no denying that as marriage equality and same-sex marriage is becoming legal throughout the nation, gay and lesbian couples who are divorcing need to inform themselves on the legal considerations that may impact the their divorce. Divorce proceedings are extremely arduous on all couples, but may even be more complex for gay and lesbian couples who move out of their state and who have children. For instance, although New Jersey currently recognizes marriage equality, if a couple who is legally married in New Jersey chooses to move to another state during their marriage that does not recognize same-sex marriage there could be repercussions if the couple later decides to get a divorce. Federal laws may not address all of the issues that may arise in a same-sex divorce proceedings despite the fact that gay and lesbian couples are now afforded the same federal benefits as heterosexual married couples. Therefore, if a gay married couple decides to move out of the state where they were legally married it is very important that they inform themselves about the marriage laws in their new state of residence. For instance, the couple should seek out information regarding the state's recognition of second-parent adoption or whether or not grandparents' have the right to seek custody of children. If the couple signed any agreements before their legal marriage was executed, each party may wish to re-acquaint themselves with the particulars of the agreement to ascertain whether or not any provisions will affect the divorce process, specifically regarding the continued care and custody of any minor children. It may also be important for a party to realize that they should not change any of their visiting patterns with their child simply because the other party compels them to. A court may review the consistency of parenting time and visitation when making decisions regarding child custody. No one should assume that simply because one parent may be the biological parent and the other and adoptive parent that a court will automatically award custody to the biological parent. If you are a gay or lesbian couple who plans on seeking a legal marriage or filing for a same-sex divorce it is critical that you seek out the advice of an experienced attorney before proceeding. For more information about same-sex marriage, same-sex divorce, same-sex relationship dissolution, civil union or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes and it is in no way intended to replace the advice of an attorney.

Child Relocation - Agreement Under Duress?

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

Relocating a Child Out of New Jersey Without Consent of the Other Parent

In child custody disputes, removing a child from the state of New Jersey to another state without a court order or consent of the other parent may subject you to sanctions and even kidnapping charges. According to N.J.S.A. 9:2-2, if a custodial parent wishes to relocate his or her child to another state, that parent must obtain the permission of the child’s non-custodial parent or must obtain a court order granting permission to remove the child over the non-custodial parent’s objection. The public policy behind the statute ensures that the non-custodial parent’s rights with regard to maintaining a relationship with his or her child are not infringed. The first question that a court must consider is the type of custody arrangement that exists. If the parents have a joint or true shared custody arrangement, then upon an application for change of custody, the court must make a best interests determination as set forth in N.J.S.A. 9:2-4(c). Alternatively, if custody is far from equal, with one parent having only the typical every other weekend and one overnight per week arrangement, then the court must apply a two-prong test set forth by the Supreme Court of New Jersey in Baures v. Lewis, 167 N.J. 91 (2001). First, the custodial parent must prove that the move is being considered in good faith and not simply to deprive the non-custodial parent of a relationship with the child. Second, the parent must prove that the relocation will not adversely affect the child. The Court in Baures listed twelve factors to be considered in determining whether the custodial parent has satisfied the two-prong test. The Baures factors include: • The reasons for the move; • Reasons for opposition by the other parent; • Parties' past dealings in regard to parenting; • Whether the child will receive equal educational, health and recreational opportunities in the new location; • Any special needs or talents of the child; • Whether a reasonable visitation schedule can be arranged to permit the continued relationship between the child and the non-custodial parent; • The likelihood that the custodial parent will foster the relationship between the child and non-custodial parent; • The effect of the move on extended family relationships in the present and new location; • The child's preference if of age and intellect to make an informed choice; • The child's scholastic performance and year of matriculation; • Whether the non-custodial parent is able to move to the new location; • Any other factor the Court may wish to consider. Relocation of a child to another state will have serious and lasting effects on the child's life and relationships, including the relationship with the other parent. If you are considering relocating with a child to a state other than New Jersey, or opposing such a relocation, you should consult with an experienced family law attorney to learn your rights and options. 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 only and not intended to replace the advice of an attorney.

Relocating With Your Child After Divorce

People often find need or reason to move after divorce whether it is for better employment opportunity, a new marriage, better schools or a host of other reasons but when there are minor children involved the court becomes involved in the removal of children from New Jersey. Over time, as our society has become more mobile, the courts have modified the requirements for removal of a child from New Jersey by the custodial parent. Recently, in Benjamin v. Benjamin, the court held the custodial parent no longer has to have a job in the new location but simply "a reasonable plan for providing a stable home" for the child in North Carolina. Although the parties actually shared custody of the child, the mother was designated the parent of primary residence of the child. The court decided that employability rather than employment should be considered because parents cannot always secure a job until they are living in the intended locale when there is already a large pool of candidates seeking employment in most areas. Upon a showing of a good faith intent for the move, a plan to purchase a home for the family and proof of employment opportunities in the area the Judge granted permission for the mother to relocate to North Carolina with the child over the objection of the non-custodial father. If you are seeking or fighting the removal of your child from the state of NJ, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on child support, custody, parenting time/visitation, adoption, dissolution of a civil union, marriage or domestic partnership, modifications, alimony, palimony or other family or juvenile law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

U.S. May Retain Jurisdiction In International Custody Matters

International child custody matters are within the scope of the Hague Convention on the Civil Aspects of International Child Abduction and dictates that the governing body returning a child to another country retains jurisdiction over the matter in certain cases. The International Child Abduction Remedies Act (ICARA) grants the United States concurrent jurisdiction and enables the United States to direct foreign courts to utilize Hague Convention protocol in deciding international custody matters. In, Chafin v. Chafin, a case where petitioner, a U.S. citizen, and respondent, a citizen of England, married in Germany and had a daughter while residing there. Petitioner was in the military and respondent relocated with the child to Scotland then Alabama as the petitioner was reassigned for military duty. While residing in Alabama, respondent filed for divorce, including custody. The respondent sought to return the child to Scotland. The district court found the child's "country of habitual residence", which is typically considered the location the child should be unless circumstances dictate otherwise, and granted respondent's request. Once in Scotland, respondent initiated custody proceedings. On review, the U.S. Supreme Court held that the continued pursuit of the matter by petitioner did not foreclose the U.S. from participation in the custody matter as jurisdiction of the U.S. courts was never extinguished by lapse of time or for other reason. Respondent was held to be within continued personal jurisdiction of the United States courts. If you are seeking to remove a child from or have a child returned to another state or territory, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on relocating with children, child custody, child support, enforcement, modification, alimony, divorce, dissolution of civil union or domestic partnership, custody or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.

Post-Judgment Relocation Requirements Reviewed

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

Gay NJ Man May Relocate to Gay Unfriendly State With Adopted Child Against Other Parent's Objections

In the recent case of A.G. v. R.R, (BER-FM-02-2258-09) the Bergen County Court ruled that a parent of primary residence with good intentions cannot be barred from relocating with the child to a state hostile to lesbian, gay, bisexual and transgender (LGBT) marriage without a showing of prejudice to the rights of the other parent. In A.G. v. R.R., the child was adopted while the parties were living in New Jersey, although they never entered into a civil union or domestic partnership. Upon separation, the parties entered into an agreement affording primary custody to A.G. and permitted him to relocate with the child from New Jersey to New York so that A.G. could pursue lucrative job opportunities. Following an injury rendering A.G. unable to perform the theater jobs for which he was well paid in New York, he received a lucrative job offer from an Atlanta, Georgia television production company and filed a Motion in the New Jersey Superior Court, Family Part, to relocate the child to Atlanta. R.R. opposed the Motion on the grounds that a 2004 amendment to the Georgia Constitution prohibits same-sex marriage and recognition of marriages of same-sex couples performed in other states. Judge Thurber held that the Full Faith and Credit Clause of the United States Constitution would require Georgia to uphold custody and parenting time orders issued by the New Jersey Courts. Judge Thurber rationalized that, if Georgia is hostile to the parental rights of R.R., he has a judicial remedy in the New Jersey Courts which have an interest in seeing their orders upheld. The Judge was careful to note that there was no example of a Georgia court refusing to recognize the rights of out-of-state adoptive parents. If you or your former partner are seeking to relocate a child against the wishes of the other parent, you should consult an experienced family law attorney immediately in order to protect your rights. For more information on adoption, child support, custody, parenting time/visitation, dissolution of a civil union, domestic partnership or marriage, modifications, alimony, palimony or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and in no way intended to replace the advice of an attorney regarding your specific matter.