Category - Child Custody Litigation

Benefits of a Collaborative Divorce

The typical divorce often involves parties sparring with each other as adversaries. A collaborative divorce utilizes a different approach. Family law attorneys guide their clients to work together to find equitable solutions to issues such as custody, visitation, and property division. Instead of entering the divorce process contentiously, spouses agree to work together to troubleshoot and solve problems through negotiation and mediation.

In a collaborative divorce, proceedings are less expensive and can be completed more quickly than litigation. Both parties can feel confident about having their concerns addressed. Additionally, a compromise occurs during negotiation, which allows the parties to reach a settlement without a judge interceding. In this format, all parties, including children, typically experience less stress and anxiety.

Both parties must be willing to work with each other to achieve a collaborative divorce. With this plan, a family law attorney can help spouses end their marriage and move forward without the acrimony usually associated with divorce.

Resolving Difficult Family Law Matters

Family law tends to be particularly challenging because emotions often run high. Whether a situation involves the dissolution of marriage or the custody of children, people usually have strong feelings that become part of the process. It may be possible to resolve some problems without excessive intervention, depending on the situation.

Reaching an Agreement

The goal of any family law matter is to reach an agreement. While this often involves going to court to enlist the help of a judge, this is not always necessary. The parties can also make an agreement without the intervention of any outside entities. The process may also involve negotiation, mediation, counseling, and arbitration. If each of these options fails, the final step may be entering the dispute into the court system for a ruling.

Even though it’s typical for these situations to be unpleasant, parties can take steps to resolve issues in a positive manner. Avoiding personal attacks and blame, keeping children out of the process, and striving to communicate effectively are three ways that people can work to resolve differences amicably.

Relocating With Your Children

Frequently people come in to see me who want to relocate to another state with their children.  Sometimes divorced, and sometimes having reached the end of non-marital cohabitation with the other natural parent, these individuals express a number of different reasons for wanting to leave New Jersey.  Among the most common reasons are: A desire to go to a sun-belt state with appreciably cheaper costs of living and better job prospects; reuniting with family members who reside in another state; and a job transfer by a new spouse.

Under New Jersey law, N.J.S.A. 9:2-2, minor children of parents divorced, separated or living apart, who are natives of New Jersey, or having resided five years within its limits, cannot be removed for residential purposes out of this jurisdiction without the consent of both parents unless the court shall otherwise order.

A New Jersey Supreme Court case, Baures v. Lewis, 167 N.J. 91 (2001), establishes that a party seeking to move out of New Jersey with his/her children bears the burden of proving that there is a good-faith reason for the proposed move, and that the proposed move will not be inimical to the children’s interests.  The following factors are addressed by the court in making this decision:

(1)        the reasons given for the move;

(2)        the reasons given for the opposition;

(3)        the past history of dealings between the parties insofar as it bears on the reasons  advanced by both parties for supporting and opposing the move;

(4)        whether the child will receive educational, health and leisure opportunities at least equal to what is available here;

(5)        any special needs or talents of the child;

(6)        whether a parenting-time schedule and communication schedule can be developed that  will allow the non-custodial parent to maintain a full and continuous relationship with the child;

(7)        the likelihood that the custodial parent will continue to foster the child’s relationship with the non-custodial parent if the move is allowed;

(8)        the effect of the move on extended family relationships here and in the new location;

(9)        if the child is of age, his or her preference;

(10)      whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;

(11)      whether the non-custodial parent has the ability to relocate; and

(12)      any other factor bearing on the child’s interest.

From my experience practicing in South Jersey, Chancery Division-Family Part judges in Burlington, Camden, Gloucester, Cumberland and Salem Counties will almost always let the custodial parent move to either Philadelphia or New Castle County, Delaware, if minimally sufficient reasons are set forth by the party seeking to move as long as New Jersey retains jurisdiction of the case for so long as the law allows.  As far as distant locales are concerned, I have always found that the best approach is to present the judge with a host of favorable options so as to make it difficult for him/her to deny the removal application.  These reasons may include: An offer by the custodial parent to permit the non-custodial parent substantially extended summer and holiday parenting time; agreement to fly the non-custodial parent to the children’s new location several times per year if financially feasible; providing the judge with comprehensive statistics about the lower cost of living in the proposed new state, including housing costs, lower taxes and the consumer prices; more favorable job prospects in the new state than those available in New Jersey if the parent seeking to move has not already been offered or accepted new employment; and offering extensive telephone, Skype or Face Time contact with the children.

In a particularly thoughtful, comprehensive opinion, Benjamin v. Benjamin, 430 N.J. Super. 301 (Ch. Div. 2012), Judge L. R. Jones held that it was not a mandatory prerequisite for relocation that the parent seeking to move had obtained a guaranteed job in the other state.  The court reasoned that it was not realistic to expect an employer in another state to offer guaranteed employment to an arms-length job applicant who (a) still lives in New Jersey, (b) is in the middle of ongoing family court litigation which may last for months, and (c) cannot reasonably tell the employer whether or when he or she might be able to start work.

If the other parent objects to the relocation, and there are genuine issues of fact as to whether or not the move would be personally, socially and financial harmful to the child, generally, the court schedules the removal application for a plenary hearing.  This procedure is akin to a trial where witnesses are presented, documents introduced into evidence, and the attorneys prepare  post-hearing, proposed findings of fact and conclusions of law.

All in all, if the party seeking to relocate out-of-state prepares his/her application comprehensively, taking all of the factors set forth in Baures and Benjamin into consideration, there is a reasonable chance that relocation will be permitted.

New Jersey Child Emancipation

“I want to sign my rights away.” “He’s gonna be 18 in June. I can stop paying child support then.”

I have often heard these and other similar comments.  For the most part, however, such thoughts are wishful thinking and not reflective of current New Jersey law.  But what happens if these mistaken beliefs come before the court in the form of a proposed consent order which a judge is asked to sign, or in a marital settlement agreement presented at an uncontested final divorce hearing?

First, under such circumstances, an experienced attorney will advise his/her clients that their child emancipation expectations are likely against New Jersey public policy.  So, questionable child emancipation language rarely appears in attorney-drawn orders or agreements.  Second, a judge will likely refuse to sign a consent order containing premature child emancipation language despite consensus between the parents.  And third, should dubious emancipation language “slip through the cracks,”  a subsequent judge or an appellate court will probably not enforce the questionable provisions finding them to be at odds with New Jersey public policy.  It should be noted that with marital settlement agreements judges rarely, if ever, read them at an uncontested divorce hearing.  Judges are simply interested in assuring that the parties have voluntarily signed the agreement without coercion; that they understand it and recognize that they are giving up their right to trial;  and that they wish to settle the case according to the terms of the agreement.

Child emancipation is almost always interwoven with termination of child support payments.  The guiding principle is that child support belongs to the children.  The parent receiving the support holds it in constructive trust for the children.  The money is to be spent on and for the children.  To be sure, in a number of cases the child support monies are spent by the receiving parent on personal items that do not benefit the children.  Unfortunately, the courts do not have the resources to monitor parental use of these funds.  In fairness, court personnel and related state and county agencies cannot be expected to micromanage the spending habits of divorced and separated parents.

“Emancipation” is a legal concept denoting the end of the fundamental, dependent relationship between parent and child.  Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006).  It is not automatic and “... need not occur at any particular age …” Newburgh v. Arrigo, 88 N.J. 529, 543 (1982).  Upon emancipation, legal and physical/residential custody rights and responsibilities are no longer vested in the parents and child support ceases.

N.J.S.A. 9:17B-3 holds that once a child reaches the age of majority, now eighteen, a parent has established “prima facie, but not conclusive, proof of emancipation.”  The burden of proof then shifts to the party seeking to continue the child support obligation.  Next, the court embarks on a critical evaluation of the existing circumstances—the child’s needs, interests, independent resources, family expectations, and the parties’ financial abilities, among other things.  Newburgh v. Arrigo, supra, at 545.

If the child joins the armed forces, gets married, obtains employment and his/her own residence at a separate location, these are all factors indicative of emancipation.

Another consideration is the responsibility of the parents in New Jersey to provide for payment of the children’s undergraduate college education after all loans, scholarships and grants upon immediate, fulltime (twelve credit hours or more per semester) enrollment in college. This duty was originally set forth in the Newburgh case referred to above. While Newburgh does not provide detailed guidance for trial judges in how to implement its philosophy, a common convention among New Jersey Family Division judges is that students are given five years to obtain a Bachelor’s Degree.  Thus, the support obligation may continue until the child is twenty-three.

This is just a brief synopsis of a few of the many issues that may arise when parents are confronted with the child emancipation question.

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.