Author Archive Daniel Newman

Co-Parenting and the NJ Domestic Violence Act

In 1991, the New Jersey Legislature enacted the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq. In implementing this law, the legislature was aware of the significant number of persons who have been beaten, tortured and in some cases killed by spouses, cohabitants or “significant others.” Perpetrators of domestic violence pervade all educational, social and economic backgrounds and ethnic groups. The lawmakers felt that it was necessary to pass a new statute to protect victims by providing access to emergent and long-term civil and criminal remedies and sanctions. Under the Act, one or more of the following events inflicted upon a protected person may constitute domestic violence: homicide; assault; terroristic threats; kidnapping; criminal restraint; false imprisonment; sexual assault; criminal sexual contact; lewdness; criminal mischief; burglary; criminal trespass; harassment; stalking; criminal coercion; robbery; contempt of a domestic violence order; and any other crime involving risk of death or serious bodily injury to a protected person.

In a nutshell, the procedure first involves the issuance of a temporary restraining order (TRO), generally authorized by a Municipal Court Judge based upon the local jurist’s acceptance of a factual description given by the victim (often by telephone) that embraces one or more of the 18 events described above. The TRO is served by the municipal police upon the accused and he or she is removed from the parties’ mutual residence pending disposition of the case by way of a Superior Court final restraining order (FRO) hearing, usually scheduled 10 to 14 days later. If an FRO is ultimately issued, interaction between the victim and the accused is disallowed by the court. Frequently, this includes restrictions against telephone, email and text-message communications as well as barring face-to-face communications. Occasionally, however, (and particularly if the parties have minor children) the FRO may contain a provision that contact will be permitted if there is an emergent situation involving one of the children. This emergent contact generally sanctions only one-time text-message, email or telephone contact for that very limited purpose.

After the issuance of the FRO, a common problem that arises is the practical difficulties in raising minor children in light of a court order barring any and all forms of association between the parents. Countless scenarios unfold: Predicaments surrounding parenting-time pickups and dropoffs; transporting the children to and from extracurricular activities; medical appointments; school parent-teacher meetings; communicating with the other parent about proposed vacations with the children or extended summer parenting-time arrangements. With the FRO, communications between the parents about the children are supposed to take place through third parties, most frequently the grandparents or occasionally siblings. Often this is impractical. The grandparents or siblings may not be available all the time for a host of legitimate reasons. It then becomes commonplace for the parent who is the protected party under the FRO to contact the other parent. Next, the parent against whom the FRO has been secured in response telephones, emails or text-messages the protected parent. Even if well-intentioned, this is a violation of the FRO. Even such an innocent act may lead to a criminal contempt hearing for violation of the FRO. Regretfully, there is also a less savory scenario in which the protected person purposely seeks out the restrained person to bait him/her into a form of contact violating the FRO. The salutary purpose of the Domestic Violence Act is thus being used as a sword instead of as a protective mechanism as intended by the legislature and the court.

Regardless of the motivation, failure to strictly adhere to the requirements of the FRO is a violation—a fourth-degree crime—under the New Jersey Code of Criminal Justice. Therefore, if under an FRO, a parent should always respond through a third party to avoid this problem.

After the issuance of the FRO it is not unusual for the parties to reconcile. Nonetheless, New Jersey case law holds that reconciliation between parties to a domestic violence restraining order, without application to the court to dismiss the order, does not void the order or otherwise serve as a defense to a charge of contempt for violating the order. The policy position of the New Jersey courts on this point is that an order of the court must be obeyed unless and until the court acts to change or rescind the order. In a contempt proceeding for violation of an FRO, a primary consideration is the vindication of the authority of the court. One of the rationales for the New Jersey court adopting this position notwithstanding reconciliation between the parties is that by its very definition domestic violence is a recurring pattern of behavior—repetitive conduct which is controlling in nature. Longstanding victims of domestic violence have been conditioned, sometimes unconsciously, to heavy-handed, domineering behavior often accompanied by verbal intimidation and physical abuse.

So, in the event that there is reconciliation between the parties an application should be made to the court by the party in whose favor the FRO was issued to vacate the order. In this way, true “reconciliation” may take place, unencumbered by the potential for a criminal contempt court hearing.

Custody Litigation: An Overview

The Family Division of the Superior Court of New Jersey hears child custody issues under “FD” docket numbers. Among the principal issues determined in FD litigation are legal custody, physical custody, child support, parenting time and emancipation when the child is no longer within the sphere of influence of the parents, at least to the degree that existed during the preadolescent and adolescent years. Each of these topics within the child custody field embraces a number of sub-issues. These sub-issues run the gamut from particularly critical decisions, such as who will be deemed the parent of primary residence (PPR) and who will be deemed the parent of alternate residence (PAR), to resolution of less consequential disputes involving parenting-time pickups and dropoffs.

In an effort to assist parents in settling their child custody disputes most counties require child custody mediation before a court-trained mediator who will hopefully solve many of the parents’ issues and assuage their concerns. Oftentimes, the parties already have a loose framework for an agreement and the assistance of court mediation may provide the impetus to bridge any remaining gaps. In the absence of custody mediation fostering an agreement, some counties then employ a more formal process called Custody Neutral Assessment (CNA). This is a more intensive custody dispute resolution mechanism. A Family Division judge, for example, when confronted with a custody dispute in the appropriate circumstance may refer the parties to CNA and defer from making a final decision until the parties have completed the CNA process.

Hearing officers are utilized to set child support obligations in accordance with the New Jersey Child Support Guidelines. This is a procedure in which the parents are ordered to appear with their most recent income tax returns and three most recent paystubs. The hearing officer will then and there calculate and enter a child support order. The New Jersey Child Support Guidelines are premised upon the combined net weekly income of the two parents as modified by certain variables such as the number of overnights with each parent, child care expenses, and payment of medical insurance premiums for the child.

Child custody mediation, CNA and the utilization of hearing officers hopefully winnow the issues that have to be decided by a New Jersey Family Division Superior Court judge.

The vast majority of child custody cases are in whole or part settled by the processes described above. I have found that the child custody cases not destined for settlement most commonly feature one or more of the following factors: An implacable hatred between the parents (married or not) due to the nature and circumstances of their breakup and/or the unharmonious relationship that existed before the breakup; and one of the parents having a pronounced psychological quirk, very frequently a narcissistic, domineering personality. Frequently, these factors override the parents’ ability to reach a compromise concerning the child or anything else. Perhaps even subconsciously the best interest of the child (the cardinal standard by which New Jersey Superior Court judges adjudicate child custody cases) is relegated to the background while the parental interpersonal conflicts rush to the forefront.

Certainly, however, there are many good parents who have deep, heartfelt convictions that their child’s upbringing would be better served if he or she were the “primary” parent. Such feelings may be based upon the social history of the family in which one parent was the primary breadwinner, having spent many hours at his or her job which might have otherwise been spent with the child. Conversely, one parent may have been home all day with the child for many months, if not years, and feels the other parent is not nearly as familiar with the daily routine and details of child care so as to be able to successfully take over the custodial duties. This is not necessarily a criticism of the less involved parent; rather, it is a reflection of twenty-first century America in which many upwardly mobile young to middle-age parents spend an extraordinary number of hours in the course of their employment — sometimes to the detriment of their child. Of course, rightly or wrongly, substance abuse allegations and other indicia of parental unfitness are sometimes levied by one parent against the other.

So, what may one expect at the custody trial? New Jersey Superior Court judges in the Family Division are beset with a multitude of duties which do not even involve “bench” time — review and preparation of motion decisions; writing findings of fact and conclusions of law for completed trials; and conducting settlement and scheduling conferences with attorneys in pending cases. The trial scheduling of Family Division cases differs from those in the Civil and Criminal Divisions in that Family Division trials are non-continuous while civil and criminal jury trials are continuous only. A child custody case may span multiple full or half trial days over a period of months whereas the criminal or civil jury trial proceeds from start to finish over consecutive days. Unlike a jury verdict, a non-jury or “bench” trial in the Family Division usually requires that the attorneys submit post-trial proposed findings of fact and conclusions of law and the judge will then render a written opinion within several weeks.

Since Family Division trial days are non-consecutive and may feature gaps of weeks between trial testimony, memories fade and detailed factual recollection of exactly what was said becomes imprecise. I prefer to rely not only upon trial notes, but also upon an audio tape of the trial testimony which can be ordered for a nominal sum from the court administration.

During the trial, the parents and any fact and expert witnesses testify on direct, cross, redirect and recross-examination. Generally, exhibits are premarked for identification and introduced into evidence at the trial. Most Family Division judges require that trial books be submitted to the court and exchanged between the attorneys several days prior to the trial. There is no trial by “surprise” in New Jersey courts. Prior to trial, each party is conversant with the proofs of the other.

Parties may engage expert witnesses. In child custody cases, these are usually psychiatrists, psychologists, therapists or counselors. The experts must prepare and submit narrative expert witness reports which are exchanged between the attorneys prior to trial. The expert witnesses testify at trial either “live” or by videotape. In South Jersey, only a small percentage of child custody cases feature expert witnesses, principally due to the cost involved. It is not uncommon for a child custody expert to require a retainer of $5,000 or more. Thereafter, the custody expert may also require a trial testimony retainer for the court appearance. Along with attorney’s fees, these financial sums are often beyond the reach of many middle-class litigants.

Sometimes, the judge will interview the child; but judges are reticent to do so if either parent, through his/her attorney, expresses an objection. The age of the child is also an important factor in determining if the child will be interviewed. Above all else, Family Division judges are acutely sensitive to the potential of psychological trauma being visited upon the child by the litigation process. The interview is before the judge only in his/her chambers. Most judges permit the attorneys to submit proposed questions.

I have yet to appear before a New Jersey Family Division judge in a child custody case who did not exert his/her best effort to be impartial and attempt to craft a decision in the best interest of the child. Nonetheless, judges are human, and neither the attorneys nor the litigants know whether a judge’s life experiences or philosophical convictions may nudge him/her in a certain direction, perhaps even unknowingly.

Appeals in child custody cases are difficult in the sense that Family Division judges are afforded wide discretion, and reversal of their decisions necessitate an abuse of discretion, significant procedural or evidentiary error, or a plain misreading of the law.

Usually, attorneys bill by the hour in family law matters. Written retainer agreements are required. The billing rate for South Jersey family law attorneys varies substantially, but frequently ranges from $250.00 to $325.00 per hour. Disbursements, including postage, photocopying and court filing fees, are added to the hourly billing sums.

The points discussed above are simply some of the considerations parents should take into account when assessing child custody issues and how they may be resolved within the framework of the New Jersey court system.

New Jersey Grounds for Divorce

Basically, thе “grounds” аrе јust аnоthеr legal term tо describe thе reasons whу а married individual hаs decided tо file fоr divorce. Lawyers and judges call these “grounds” the “causes of action.”

The reasons people file for divorce vary, but іt аll basically boils dоwn tо оnе point: thаt thеу аrе unhappy wіth thеіr current marriage. Ideally, а marriage shоuld make оnе feel happy аnd productive; however, if thіs is no longer the case, а divorce mіght bе thе mоst practical option fоr thе couple.

Gеttіng а divorce will require thе filing party tо state “grounds” or a “cause of action” in his/her complaint. Whеn thе court sees thаt уоur grounds fоr divorce аrе valid and you have met the state jurisdictional/residency requirements, thеn уоu аrе assured оf уоur divorce papers. In New Jersey, the most common ground for divorce is irreconcilable differences. This means that for at least six months before the filing of the divorce complaint irreconcilable differences existed between the parties; that the irreconcilable differences have continued down to the day of the divorce hearing; and that there is no reasonable prospect of reconciliation between the parties.

There are other statutory grounds for divorce such as adultery, desertion, habitual intoxication, drug addiction, imprisonment and extreme cruelty. In most instances, the type of cause of action for divorce is not an important factor in equitable distribution of the marital assets. There are certain exceptions to this rule, nonetheless. If, for example, one spouse is involved in an adulterous relationship and significant marital assets have been squandered by virtue of the adulterous relationship or transferred to the third party adulterer/adulteress this would be a dissipation of assets case and the non-adulterous spouse may be given a credit for all or a portion of the dissipated assets. Since the type of cause of action for divorce generally does not affect distribution of marital property, the overwhelming percentage of New Jersey divorces are granted under the irreconcilable differences theory.

Today, in an irreconcilable differences divorce in New Jersey, the two parties need not be living separate and apart. Sometimes, the two parties will even be living under the same roof (albeit usually in separate bedrooms) in order to avoid a dual housing expense.

Understanding New Jersey Child Support Guidelines

New Jersey hаs а set оf rules аnd regulations fоr determining child support amounts. Тhеsе аrе knоwn аs thе Νеw Jersey child support guidelines аnd they set thе standard fоr family courts, family law professionals аnd divorcing parents.

Principal Factors іn Child Support

The Νеw Jersey child support guidelines outline thе factors thаt must bе included іn thе support calculations. Еvеrу stаtе hаs slight variations іn thеsе factors, but Νеw Jersey hаs іt narrowed dоwn tо three main factors.

Here аrе thе three principal factors thаt contribute tо thе stаtе child support guidelines:

Net income: This іs thе combined net income fоr bоth parents determined bу paystubs, раst tax returns аnd оthеr financial statements. Νеw Jersey law allows fоr several other considerations, including child care expenses, a credit for the increased cost of having one or more children on the medical insurance policy of one of the parents and a credit if one or both of the parents is paying support for another dependent.

Eligible children: All children оf thе union аrе eligible fоr child support untіl thеу аrе emancipated. The term “emancipated” means when the children are no longer under the sphere of influence of the parents. This may occur, for example, when a child is married, joins the armed forces or has graduated from high school without immediately going on to college as a full-time student.

Parenting time: The Νеw Jersey guidelines also take into consideration the number of “overnights” the child spends with each parent. This is significant in determining whether to use the “sole” or “shared” parenting guidelines worksheet when doing the actual calculation.

Joint Legal аnd Shared Physical Custody

Another раrt оf thе Νеw Jersey child support guidelines involves which parent has been designated as the parent of primary residence (PPR) and which parent has been designated as the parent of alternate residence (PAR). Generally, the net child support is paid by the parent of alternate residence to the parent of primary residence.

As far as shared physical custody is concerned, each parent has equal say in such important areas as medical treatment and education, for example. The day-to-day decisions as to what the children will eat or whom the children will play with are usually exercised by the parent of primary residence because he/she sees the children more frequently.

As far as legal custody is concerned, absent an extraordinary circumstance, such as criminal behavior or profound mental instability, both parents are deemed legal custodians of the children.

Parenting Time Credit

The parenting time іnfоrmаtіоn уоu usе tо рut іntо thе calculation worksheets of thе child support guidelines саn hаvе а significant impact оn thе amount уоu pay оr receive. Usе а custody calendar оr custody scheduler tо count uр thе number оf overnights fоr thе non-custodial parent.

Тhе mоrе overnights thе non-custodial parent hаs thе higher thаt percentage will bе. Тhе Νеw Jersey guidelines аrе structured sо thаt thе higher thе percentage thе lower thе payments will be.

Summary

Child support amounts аrе nоt јust randomly assigned bу thе courts оf Νеw Jersey. Іnstеаd, thеу аrе thе result оf а complex process оf entering numbers іntо complicated formulas аnd calculating total amounts. Еvеrу divorce аnd custody case must follow thеsе Νеw Jersey child support guidelines іn order tо bе approved bу thе courts except in limited situations where the parents may agree to a non-guidelines child support calculation.

How Is New Jersey Child Custody Decided and When May It Be Modified?

For many people, child custody determination is one of the more stressful aspects of divorce. Understanding how judges analyze child custody and parenting time in New Jersey can allay fears and prepare parents for often-emotional child custody proceedings. In addition, when a parent’s life dramatically changes after a child custody arrangement is finalized, knowing whether custody modification is possible also can be helpful.

When parents with minor children get divorced, they may create their own child custody arrangement and include it in a marital settlement agreement. If the parents are unable or unwilling to resolve the child custody issue, a judge will make a child custody determination that is in the best interest of the child.

CHILD CUSTODY FACTORS

When analyzing which custody arrangement would be in the best interest of the child, judges in New Jersey must consider the following factors listed in N.J.S.A. 9:2-4:

The parent’s ability to agree, communicate and cooperate regarding the child;
The parent’s willingness to accept custody and share custody with the other parent;
Any history of domestic violence;
The child’s and either parent’s safety from physical abuse by the other parent;
The child’s needs;
The age and number of the children;
The preference of the child if he or she is capable of forming an intelligent decision;
The quality and continuity of the child’s education;
The distance between the parents’ homes;
The stability of each parent’s home environment;
The amount and quality of time spent with the child before the divorce;
The parent’s employment responsibilities; and
The fitness of the parents to raise the child.

According to New Jersey statute, a person is not deemed unfit to parent unless his or her conduct has a substantial adverse impact upon the child. Also, there is no presumption that either parent is preferred for custody solely because of his or her gender.

The New Jersey Legislature has declared that the state’s public policy is to assure minor children frequent and continuing contact with both their parents, if appropriate considering the children’s best interest. After divorce, New Jersey laws also encourage both parents to share the rights and responsibilities of raising children. Therefore, the most common types of child custody in New Jersey is joint legal and shared physical custody.

TYPES OF CHILD CUSTODY

When joint custody is awarded, the child frequently alternates between the parents’ two residences. The child custody order will declare the physical custody and residential arrangements for the child and designate the Parent of Primary Residence (PPR) and the Parent of Alternate Residence (PAR). It also will contain provisions for communication between the parents on major life decisions for the child such as healthcare, religion and education.

Otherwise, if joint custody is not in the best interest of the child, a judge may award sole custody to one parent. Moreover, New Jersey law also allows judges to order any other custody arrangement that they determine is in the best interest of the child. Joint custody is most frequently ordered, however, and deviations from this norm are unusual.

CHILD CUSTODY MODIFICATION

Once a child custody arrangement is ordered, modification of its terms occurs only by agreement or a substantial change in circumstances.

Because the primary consideration in child custody determinations is the best interest of the child, a parent seeking to alter custody must establish a prima facie case for modification by showing that a substantial change in circumstances affects the welfare of the child such that his or her best interest would be better served by modifying the custody arrangement.

If the petitioner is able to establish a prima facie case for modification, a judge then must consider whether information gathering through discovery is necessary. If so, the judge will order discovery and define its scope. Oftentimes, the judge will hold a plenary hearing at which each parent presents his or her testimony, arguments and evidence. The children may be interviewed by the judge depending upon their ages.

A substantial change in circumstances is a difficult standard to meet. Job loss is not a probative factor unless the parent’s situation is so desperate that he or she is unable to care for the child; however, evidence of substance abuse or physical abuse by a parent is generally sufficient to warrant a change in child custody. Judges also consider the age of the child and his or her preferences, if old enough, as well as the child’s schooling and the lifestyle of the parent.

If you are considering divorce, are wondering what might happen with your children after divorce or would like to modify an existing child support order,contact a family law attorney with experience in child custody cases to discuss your legal rights and options.

Keeping Health Insurance After a Divorce in New Jersey

Federal health insurance reform did pass. But it has not fully taken effect yet, and the problem of being left without insurance after a divorce still exists in New Jersey and other states.

This article is an introduction to some of the options that a divorcing spouse has when his or her health insurance is affected by the marital breakup. For detailed advice customized to your specific circumstances, contact a New Jersey family law attorney.

EX-SPOUSE’S POLICY NO LONGER AVAILABLE

If your medical insurance was through your spouse’s policy, you need to consider your options for staying insured after a divorce. This is especially a concern for people with pre-existing conditions, who could easily be turned down by cost-conscious insurers in the private market.

If you get divorced, you cannot be on your spouse’s policy anymore. There is employment right to coverage for a very brief period of time under the federal COBRA law. You may then apply for individual healthcare insurance with the same company that insured you under COBRA, and you will not have to reapply for approval or undergo a physical examination. But COBRA premiums can be very expensive, and the COBRA exception may not be available indefinitely due to the healthcare reform law.

In New Jersey, for companies with fewer than 20 employees, it is possible that protections for divorced spouses similar to COBRA may be available. But again, those premiums are very expensive. You want to stay insured without breaking the bank.

So what do you do?

This is where the nuances of New Jersey divorce law really come into play. It’s important to understand the differences among a few different ways that your divorce can be structured.

LIMITED DIVORCE FROM BED AND BOARD

Under a judgment of limited divorce from bed and board, it may be possible to remain insured under your spouse’s policy. In New Jersey, a judgment of limited divorce from bed and board is just like a divorce, except that the marriage is not legally dissolved. Marital assets are divided like in a full divorce and issues involving children are resolved as in a plenary divorce proceeding. It is possible to file a motion at a later date to have it converted into a full divorce.

Until such a motion is filed, however, it may be possible to remain on your spouse’s insurance. This type of occurrence has become more common in recent months, perhaps due to the down economy.

Insurance companies have started to object to the practice, claiming that it is a way of circumventing divorce laws to keep someone on another party’s insurance. Although this is a legal gray area, involving the definition of an “insured” under a given policy, it is worth discussing with your family law lawyer.

OTHER OPTIONS TO MAINTAIN INSURANCE

Another option worth considering is to resolve the question of insurance as part of a separate maintenance agreement between the spouses. There is no formal dissolution of marriage, and thus no equitable division of property. But the spouse who needs insurance could receive it through a maintenance agreement that can accompany a legal separation.

A marital settlement agreement, by contrast, is premised on equitable distribution of property and allocation of debt. Here too, however, the agreement between the spouses could be structured to make sure that health insurance is covered.

Other alternatives may be possible as well. For example, one party could voluntarily dismiss a divorce complaint and remain on the other spouse’s health insurance for a certain period of time while making other insurance arrangements.

Talk these options over with a New Jersey family law attorney and decide what works best for you in your situation. Doing that will help you put your mind at rest and move forward with your life – with proper health insurance.