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NJ Family Legal Blog

Pertinent Information As It Relates To New Jersey Family Laws

JUDGES ARE SUPPOSED TO DECIDE MATTERS RIPE FOR DECISION – NOT SEND IT TO MEDIATION – SHOCKING!?!

Posted in Mediation/Arbitration, Practice Issues

We have all had this happen.  Letters get written back and forth to try to settle a matter and/or you just file a motion because the issue is clear based upon the law and the facts.  Or, the parties, for whatever reason, just wont resolve an issue because one or both is being unreasonable.  So you come to court to argue your motion and the judge urges you to settle again before hearing argument.  Ok, settlement on the courthouse steps is not uncommon, but often, a review of the motion papers should make it clear whether there is any prayer or a consensual resolution.  Worse yet, after you argue the motion that is ripe for determination, the judge defers decision and sends you to mediation.  Is that right? 13690807_s Well, in the case of Powell v. Gorski (an unreported – non precedential Appellate Division decision decided on April 22, 2015), the Appellate Division said no.  Specifically, the court held that once the court reviewed and analyzed a motion, the matter should have been decided.  In this case, one party filed a motion for emancipation and the other filed a defective cross motion for retroactive college and future graduate school contribution.  The trial court denied the request for emancipation without prejudice “[g]iven the existence of disputed issues of material fact”  but rather than scheduling a plenary hearing, the trial judge “encouraged [the parties] to mediate their disagreements” because “future litigation would not appear to be in the interests of either party.”  The Appellate Division reversed holding:

We also comment on the procedure employed here. We have previously noted “[t]he business of the courts is to finalize disputes.” Parish v. Parish, 412 N.J. Super. 39, 54 (App. Div. 2010). When parties properly file actions seeking review and determination, and the case is presented for disposition, the matters should not be redirected, but determined. Despite the judge’s salutary motive in urging the parties’ settlement, they have the right to final review of their contest. Had the judge considered the matter appropriate for mediation or some other alternative dispute resolution process, see R. 5:4-2(h), he could have offered that suggestion prior to review. Once undertaking review and analysis, a final determination should be made. Further, if the motion record was found to include disputed material facts, the judge should have scheduled a plenary hearing. … (Emphasis added)

All to often, matters are deferred to mediation or deferred to more experts when decisions need to be made.  The Parish case cited above was my case, and the trial court in that case mandated settlement conferences prior to filing future motions, but the Appellate Division determined that that was improper.  When parties need an issue decided and do what is necessary to have it decided, it should be decided. _________________________________________________________ Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com. Connect with Eric: Twitter_64 Linkedin

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F is for service- Facebook Style

Posted in Civil Unions and Domestic Partnerships, Divorce, Other, Practice Issues

The recent news concerning social media is all about the service of a divorce complaint via Facebook.  A New York judge recently granted permission to a woman to serve a divorce complaint via her husband’s page on the social media giant. This marks a perhaps first, but not surprising new step in the use of social media. First, the misconception- many people believe that this means that a divorce can be filed via social media.  It doesn’t.  What it means is that after the divorce complaint has been filed, it can be served online.  This method is a natural extension of what is known as substituted service, and in fact may be a more reliable method to getting actual notice to a defendant of an impending divorce.

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Once a plaintiff has filed a complaint for divorce, it must be served on the defendant. Typically, this is done by a process server or Sheriff’s officer. Sometimes, the defendant or the defendants attorney will accept service voluntarily. But when the defendant cannot be located, the court can grant permission for something known as ” substituted service.” This typically means publishing a notice in the legal notices section of a newspaper in the geographical area of which the defendant is presumed to be. The likelihood of an absent defendant actually reading the legal notices section of the newspaper can be slim to none.

In the New York matter, the plaintiff wife had no idea where her estranged husband was residing and all efforts to locate him had failed. He did however have a Facebook page and communicated on it regularly. The plaintiff wife successfully argued to the judge that the most likely way to provide notice to her husband of the divorce was to post onto his Facebook wall a notice that the matter was pending. The judge agreed.

Whether we like it or not, social media is here to stay. In this case, it was effectively used to overcome the procedural roadblock which could have prevented or at a minimum delayed a plaintiff’s right to the dissolution of her marriage.  One might expect, however, that people dodging service may start paying more attention to privacy settings.

SUPREME COURT RULES THAT EXPERT REPORT NOT BASED UPON EVIDENCE SHOULD BE SUPPRESSED – SHOCKING!?!

Posted in Practice Issues

It is not uncommon to get in an expert report from the other side that makes you scratch your head.  Maybe it is well written  Maybe it is very interesting.  Hopefully the math is right.  Maybe it is even very persuasive.  The reason why you are scratching your head, however, is that the factual basis of the report seems to have bare no relation to the actual, provable facts of the case.  Rather, the report relies on supposition, innuendo, theory, hypothetical facts, etc.  What it doesn’t rely on, however, is the actual facts of your case.

24082729_sSo what do we do?  We complain to the judge and maybe even file a motion to strike the report.  As lawyers, how often have we heard judges fudge the application of the rules of evidence and dismissively say, “I’ll let it in – your objection goes to the weight”?  That said, if it is true “net opinion” -meaning an expert opinion that cannot be relied upon, the objection is about whether the report and testimony in the first place, and not what weight the judge, as the trier of fact gives to it.

Yesterday, the Supreme Court reminded us what the proper standard is, and more importantly, that an expert report must be based upon the evidence in the case, in the case of Townsend v. Pierre.  Though this was a personal injury case, the same principles apply to family law cases. The facts in that case are not relevant for this discussion except for the fact that the ultimate facts were not in dispute.

As to expert opinions and net opinions, the Supreme Court reminded us that:

N.J.R.E. 703 addresses the foundation for expert testimony. It mandates that expert opinion be grounded in “‘facts or data derived from (1) the expert’s personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts.’” Polzo, supra, 196 N.J. at 583 (quoting State v. Townsend, 186 N.J. 473, 494 (2006)). The net opinion rule is a “corollary of [N.J.R.E. 703] . . . which forbids the admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data.” Ibid. The rule requires that an expert “‘give the why and wherefore’ that supports the opinion, ‘rather than a mere conclusion.’” Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013) (quoting Pomerantz Paper Corp., supra, 207 N.J. at 372); see also Buckelew, supra, 87 N.J. at 524 (explaining that “an expert’s bare conclusion[], unsupported by factual evidence, is inadmissible”).  …

The Court went on to note that:

The net opinion rule, however, mandates that experts “be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable.” Landrigan, supra, 127 N.J. at 417. An expert’s conclusion “‘is excluded if it is “‘based merely on unfounded speculation and unquantified possibilities.’” Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997) (quoting Vuocolo v. Diamond Shamrock Chem. Co., 240 N.J. Super. 289, 300 (App. Div.), certif. denied, 122 N.J. 333 (1990)), certif. denied, 154 N.J. 607 (1998). As the Appellate Division noted, when an expert speculates, “he ceases to be an aid to the trier of fact and becomes nothing more than an additional juror.” Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996), overruled on other grounds, Jerista v. Murray, 185 N.J. 175 (2005). By definition, unsubstantiated expert testimony cannot provide to the factfinder the benefit that N.J.R.E. 702 envisions: a qualified specialist’s reliable analysis of an issue “beyond the ken of the average juror.” Polzo, supra, 196 N.J. at 582 (citations omitted); see N.J.R.E. 702. Given the weight that a jury may accord to expert testimony, a trial court must ensure that an expert is not permitted to express speculative opinions or personal views that are unfounded in the record.

We next turn to the issue on about the use of hypothetical questions in expert testimony.  Under the Rules of Evidence, while lay witnesses are not permitted to be asked hypothetical questions, experts can.  However, the court made clear that the hypotheticals must relate to the evidence, as follows:

The use of hypothetical questions in the presentation of expert testimony is permitted by N.J.R.E. 705, “provided that the questions include facts admitted or supported by the evidence.” Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 705 (2014) (citing Wilsey v. Reisinger, 76 N.J. Super. 20, 25 (App. Div.), certif. denied, 38 N.J. 610 (1962)). As this Court noted in Stanley Co. of America v. Hercules Powder Co., “[t]he opinions of experts must be based either upon facts within their own knowledge which they detail to the jury or upon hypothetical questions embracing facts supported by the evidence upon which the expert opinion is sought.” 16 N.J. 295, 305 (1954) (citing Beam v. Kent, 3 N.J. 210, 215 (1949)); see also Savoia v. F. W. Woolworth Co., 88 N.J. Super. 153, 162 (App. Div. 1965). “Expert opinion is valueless unless it is rested upon the facts which are admitted or are proved.” Stanley, supra, 16 N.J. at 305 (citing Bayonne v. Standard Oil Co., 81 N.J.L. 717, 722 (E. & A. 1910)); see also State v. Sowell, 213 N.J. 89, 100 (2013) (holding that hypothetical question in criminal case must be limited to facts presented at trial); accord State v. Nesbitt, 185 N.J. 504, 519 (2006); State v. Odom, 116 N.J. 65, 78-79 (1989). Consequently, “a hypothetical question cannot be invoked to supply the substantial facts necessary to support the conclusion.” Stanley, supra, 16 N.J. at 305 (citations omitted); Wilsey, supra, 76 N.J. Super. at 25.

The last sentence of this quote bares repeating, a hypothetical questions cannot be used to supply facts necessary to support the expert’s conclusion where those facts don’t actually exist in the case.

The takeaway here is that attorneys should consider making motions to strike expert reports that are not based upon the provable facts that can be adduced at trial or at least be prepared to address this point at trial.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.
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E is for Exemption: Who Gets it?

Posted in Child Support, Tax Exemption

April 15th is bearing down on us, and as divorced and separated parents get ready to file tax returns, the question of the dependency exemptions comes up.  According to IRS rules, only one taxpayer may claim a dependency exemption for a child for a tax year. Two parents cannot split this dependency exemption.

Generally, the child is the qualifying child of the custodial parent.  In other words, the parent who cares for the child and has the child over 50% of the time is entitled to claim a child as a dependent on his or her tax return as a matter of right.

The practical answer, however, is that the dependency exemption is a typically the subject of negotiations, particularly if there is more than one child. Many times, as long as the non-custodial parent is paying child support, the exemption is split between children, or if there is only one child, alternated year to year.

One exception that should be considered is in situations in which one parent is in a tax bracket ( high or low) that the exemption does not make a significant difference.  In that case, the parent who gets a significant savings may want to have the exemption in all years.

Moreover, one condition that a custodial parent may want to consider when giving the exemption to the non-custodial parent is that the payor must be current on child support obligations in order to claim the child(ren).

In the event the custodial parent does allow the other parent to claim a child, two conditions must be met:

The custodial parent signs IRS Form 8332, Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent, or a substantially similar statement, and

  • The noncustodial parent attaches the Form 8332 or the statement to his or her return.

When negotiating support for a child, a consultation with counsel and an accountant is important to maximize dependency exemptions.

 

Jennifer Weisberg MillnerJennifer Weisberg Millner is a partner in Fox Rothschild LLP’s Family Law Practice Group. Jennifer is resident in the firm’s Princeton Office, although she practices throughout the state. Jennifer can be reached at 609-895-7612 or jmillner@foxrothschild.com.

IS WILLFUL FAILURE TO COMPLY NECESSARY FOR AN ORDER TO BE ENFORCED?

Posted in Practice Issues

You see it all of the time.  In defense of an enforcement motion, a litigant says “I didn’t knowingly violate the Order”, “I didn’t willfully violate the Order”, “it wasn’t my fault”, “it was an honest mistake.”  In fact, just last week someone was trying to add the term “willful” to an agreement to essentially make enforcement impossible because he would just blame is non-compliance on oversight or some other excuse.  Worse yet, judges sometimes buy the excuse and fail to find a party in violation of litigants rights even though there is no dispute that an Order or Agreement was breached.

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But is “willful violation” actually the standard for enforcement?  Well yesterday, the Supreme Court reminded us that it was not the standard in In re Adoption of N.J.A.C. 5:96 & 5:97 by N.J. Council on Affordable Housing.   This case is not a family law case, mind you, but rather, another in the long line of affordable housing cases.  That said, the Supreme Court told us once again what the standard is, as follows:

Although Rule 1:10-3 encompasses the notion of civil contempt, we have expressly stated that “we view the process [under Rule 1:10-3] as one of relief to litigants.” In re Daniels, 118 N.J. 51, 60 (per curiam) (emphasis added) (citing R. 1:10-5, now R. 1:10-3), cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990). The focus being on the vindication of litigants’ rights, relief sought pursuant to Rule 1:10-3 does not necessarily require establishing that the violator of an order acted with intention to disobey. Indeed, courts have recognized that “demonstration of a mens rea, wilful disobedience and lack of concern for the order of the court, is necessary for a finding of contempt, but irrelevant in a proceeding designed simply to enforce a judgment on a litigant’s behalf.” Lusardi v. Curtis Point Prop. Owners Ass’n, 138 N.J. Super. 44, 49 (App. Div. 1975) (emphasis added); see also N.J. Dep’t of Health v. Roselle, 34 N.J. 331, 347 (1961) (“The Appellate Division correctly held that upon a litigant’s application for enforcement of an injunctive order, relief should not be refused merely because the violation was not willful.”).

It bears repeating in connection with this present application that our Court Rules generally are to be construed and applied to secure a just determination and to achieve simplicity in procedure. R. 1:1-2. That admonition has particular force when it comes to assisting a litigant in securing vindication of rights.

The Court Rules overall evince an intent toward flexibility when the enforcement of rights is at stake. They provide various means for securing relief and allow for judicial discretion in fashioning relief to litigants when a party does not comply with a judgment or order. In addition to the mechanism of Rule 1:10-3, Rule 4:59-2(a) provides related support for assisting a litigant in securing relief:

 If a judgment or order directs a party to perform a specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of such defaulting party by some other person appointed by the court, and the act when so done shall have like effect as if done by the defaulting party.

[See also Roselin v. Roselin, 208 N.J. Super. 612, 618 (App. Div.) (citing R. 4:59-2(a) when noting alternatives available to trial court for enforcing party’s rights), certif. denied, 105 N.J. 550 (1986).]

In Roselin, supra, for example, Judge Pressler invoked Rule 1:10-3’s predecessor rule when assessing the alternatives available to a trial court where a party failed to sign a contract as ordered. 208 N.J. Super. at 618. Highlighting the hardship that the failure was foisting on another of the contract’s parties, the panel observed that “[i]ntervening rights of innocent third persons have arisen,” id. at 617, and declared that the innocent’s “rights must be enforced,” id. at 618 (citing R. 1:10-5). Judge Pressler noted Rule 4:59-2(a)’s ability to secure relief through the directed actions of others, which adds to a court’s flexibility when vindicating the rights of litigants. See ibid.

In sum, then, although punitive or coercive relief under the Rule cannot be used against one who is not a willful violator of a judgment, see, e.g., Schochet v. Schochet, 435 N.J. Super. 542, 548-49 (App. Div. 2014) (citing Pasqua v. Council, 186 N.J. 127, 141 n.2 (2006), for same and noting “objective of [Rule 1:10-3] hearing is simply to determine whether . . . failure [to comply with an order] was excusable or willful”); Milne v. Goldenberg, 428 N.J. Super. 184, 199 (App. Div. 2012) (upholding imposition of community service under Rule 1:10-3 against plaintiff where record established willful noncompliance), that does not foreclose the vindication of litigants’ rights through other forms of non-punitive and non-coercive orders entered pursuant to Rule 1:10-3’s authority enabling the enforcement of rights.

Simply put, while a court may not be able to impose punitive sanctions unless there is a finding that the conduct is willful, it can certainly find the offender in violation of litigant’s rights and order enforcement.  Why is this important?  Because willfulness or not, if someone is entitled to enforcement they are entitled to enforcement.  Moreover, since it is not uncommon to see repeat offenders, the finding that someone previously violated litigant’s right may be useful if there is a subsequent motion (1) as to whether that conduct was “willful” and (2) as to the issue of counsel fees.  Moreover, since Rule 1:10-3 allows for an award of legal fees, if someone is required to come to court to get that which they are already entitled to, should not they be made whole by the other party who violated an Agreement or Order – even if it was not willful?  The policy reasons noted by Judge Pressler in the above quote suggest so.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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TRIAL OR RITUAL BLOODLETTING? CONTINUING TO FIGHT WHEN THERE IS NOTHING LEFT TO FIGHT ABOUT

Posted in Practice Issues

I recently spent a significant amount of time preparing for and then spending nearly four days in court for what was supposed to be a divorce trial.  While the court time was used to settle the case, the entire process was ponderous.  Due to both passage of time and a series of unfortunate events, there really wasn’t many issues left – and certainly none that should have not been so difficult to resolve.  Yet the case was not resolved until a few more wild (see false) allegations and un-provable (because they were false) suppositions were thrown out, literally in the court house.  Literally, countless hours were spent by both counsel who had thoroughly prepared to try the case, and literally, countless more were spent over minor issues or small dollar differences in the proposal.  The sayings “death by a thousand paper cuts” and “how many angels can dance on the head of a pin” came to mind, as at the end of the day, the few dollars in either direction were long since expended for counsel fees.

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How did we get here?  I have long said that trials only happen for a few reasons.  First, there is an unresolvable issue that requires a judge’s decision – for example, a bona fide, good faith custody dispute; an application to relocate with the children.  Sometimes there is an esoteric or novel issue with a lot a stake that cannot be resolved. Perhaps there is a bona fide valuation issue.  These few examples occur less frequently than, in my opinion, what is the most common reason that there is a trial, especially in the days when court do everything possible to get cases to settle.

The reason for most trials is that one or both parties are unreasonable and/or will not listen to their counsel or anyone else.  Either they are delusional or have so much anger and hatred that they must get their day in court – even if the end result is the parties’ mutual financial and emotional destruction.  Often the parties are a matched set – think of the movie The War of the Roses.  But all it takes, like my recent experience, is one party to be so far out of line to create a needless, and in some cases, tragic result.  At the end of the day, people are entitled to their day in court if they really want it – no matter what the cost.  Hopefully, in those situations, if it is really one party that is totally unreasonable (or worse), the court will award a hefty counsel fee.  But does it really make anyone whole?  Probably not.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Protecting Health Information in the Context of Divorce Proceedings and Domestic Relations

Posted in Divorce, Privacy and Confidentiality

My colleagues Michael Kline and Elizabeth Litten recently co-wrote a series of blog posts for the firm’s HIPAA, HITECH and HIT blog containing valuable information for individuals either undergoing divorce proceedings or navigating other domestic relations issues.

In their series, Michael and Elizabeth explore complex issues arising from the November 2014 ruling by the Connecticut Supreme Court in Byrne v. Avery Center for Obstetrics and Gynecology, P.C. The case has significant implications for individual health information (“IHI”) privacy in the context of domestic relations – both in the divorce or legal separation context and even in a less confrontational domestic environment.  While settlement agreements and divorce decrees often address healthcare and health insurance issues, especially where there are custodial children involved, addressing IHI issues is much less common. Michael and Elizabeth also discuss practical tips for individuals dealing with situations involving their domestic relationships.

I invite you to read all three parts of their series. Here are Part I, Part II and Part III.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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APPELLATE DIVISION ADDRESSES INCLUSION OF EXTRACURRICULAR ACTIVITIES IN CHILD SUPPORT

Posted in Child Support

Many divorce or support proceedings involve the issue of who is going to pay for extracurricular activities.  Who is paying for sports?  Band?  Social clubs?  Art?  Drama and more?

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While settlement agreements commonly have a separate payment allocation for such expenses from the basic child support obligation – commonly in proportion to the parties’ respective incomes, the New Jersey Child Support Guidelines actually include predictable and recurring activities and lessons the category of “entertainment” in the basic child support obligation.

Entertainment” includes:  Fees, memberships and admissions to sports, recreational, or social events, lessons or instructions, movie rentals, televisions, mobile devices, sound equipment, pets, hobbies, toys, playground equipment, photographic equipment, film processing, video games, and recreational, exercise or sports equipment.

Expenses that are not “predictable and recurring” should not be included in the basic obligation but, rather, should be shared by the parents in proportion to their respective incomes.  As can be read from the definition of “Entertainment”, it would seem that most extracurricular activities would fall into the realm of predictable and recurring.  Since application of the Child Support Guidelines is presumed, a court must explain why any deviation therefrom is appropriate.

In Elrom v. Elrom, a newly published (precedential) decision from the Appellate Division, the appellate court found that the trial court failed to explain why it deviated from the Guidelines by adding extracurricular activity costs as supplemental support.  There was no indication by the trial court – in requiring the parties to equally divide the payment for extracurricular activities beyond the basic support obligation – as to why such activities were to be separately paid for from the basic support obligation.  Put another way, there was no indication by the court as to why the activities at issue were somehow deemed other than predictable and recurring.  As a result, the Appellate Division ordered a limited remand to the trial court.

Thus, whether you are negotiating or litigating the issue of extracurricular activity payments, be sure to consider whether such activities are predictable and recurring and, thus, should be included in the basic support obligation, or whether such payments should be made separately therefrom.

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Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group. Robert practices throughout New Jersey and is based in the firm’s Roseland, New Jersey office.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

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CUSTODY WITH PSYCHOLOGICAL PARENT DEEMED IN CHILD’S BEST INTERESTS OVER FIT BIOLOGICAL PARENT

Posted in Custody, Grandparent Visitation

Custody disputes are often an emotionally trying process where litigants are advocating for what they deem to be in the best interests of the child caught in the middle.  Even with the opinion of a custodial expert and months, if not years of litigation, the decision is a difficult one for a trial judge to make.

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A custody dispute between two fit parents requires a court to determine the issue of custody based on the best interests of the child.  When the dispute is between a fit parent and a third party, however, only the “fit parent is presumed to be entitled to custody,” because the rebuttable presumption is that the child’s welfare will be protected.

A third party can overcome the presumption, however, by satisfying the standard required for termination of the rights of a non-consenting parent – unfitness, abandonment, gross misconduct or so-called “exceptional circumstances.”  This is a 2-step process:

  1. Application of the parental termination standard or a finding of “exceptional circumstances.”  Exceptional circumstances may be satisfied by establishing that the third party has become the child’s psychological parent.
  2. If the parental termination standard or “exceptional circumstances” component is fulfilled, the court must decide whether to award custody to the third party in the best interests of the child.

As part of Step 1, to determine if there exists a “parent-like” relationship between a third party and a child, the following 4 prongs must also be fulfilled:

  1. The biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child.
  2. The petitioner and the child lived together in the same household.
  3. The petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation [a petitioner’s contribution to a child’s support need not be monetary].
  4. The petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

Only after this test is fulfilled under the “exceptional circumstances” option can the best interests standard be applied under Step 2.

In J.F. v. R.M., an unpublished (not precedential) Appellate Division decision, the biological father, was denied residential custody of the child in favor of the child’s great-grandmother despite him being deemed a fit parent.  Without getting into too much detail about the facts, the child lived with his maternal great-grandmother after his birth in 2007.  Dad was not involved in his life until 2011, claiming that he did not know the child was his son.  The mother lived with great-grandmother on and off for three and a half years before departing for good.

In early 2011, great-grandmother filed an action seeking custody of the child, which was granted.  She also sought to establish dad’s paternity and his obligation to pay child support.  Dad was granted “open and liberal” parenting time, and he exercised time regularly with the child, including overnights.

In later 2013, dad filed an application for full custody of the child.  Great-grandmother opposed the application, arguing that there was no basis for a change.  After a hearing, the trial judge denied dad’s application and recognizing that, because there was no allegation of parental unfitness or gross misconduct by dad, the law required great-grandmother to demonstrate the existence of “exceptional circumstances” – such as “psychological-parent” status to retain residential custody of the child as a non-parent.

After concluding that she was the child’s psychological-parent based on her bond with the child, and that the child used her as a parental figure even though he knew she was not his mother, the court then applied the “best interests of the child” standard in denying dad’s application.  In so holding, the trial court noted that because great-grandmother was deemed a psychological-parent to the child, she was held on equal footing with dad as a parental figure and, as a result, the best interests standard applied.  Ultimately, the court found no basis to change the custodial arrangement, despite noting that dad was doing “a great job as a father,” because there was no dispute that the child was doing great.

Dad appealed, arguing that great-grandmother was not a psychological-parent and, as a result, the trial court should have applied the “parental fitness” test, rather than the best interests standard.  The Appellate Division disagreed.  Primarily, he argued that he did not consent or foster the child’s relationship with great-grandmother under Step 1 of the psychological-parent test detailed above because he did not know for certain that he was the father.  The Appellate Division, however, noted dad’s concession to knowing mom was pregnant, he never sought to determine paternity until great-grandmother sought child support, and then 2 more years passed before he sought residential custody.  As a result, his actions/inactions were deemed “tacit consent” to great-grandmother’s relationship under the first part of the 4-part test.

Interestingly, the Appellate Division also found the fourth part of the 4-part test fulfilled as to the length of the child’s relationship with great-grandmother because parts two and three were fulfilled with the child living with her throughout his entire life and her being the primary caretaker.

As a result, the Appellate Division affirmed the trial court’s finding that great-grandmother was the psychological-parent and use of the best interests standard in denying dad’s application.  Custody disputes are very fact sensitive situations.  The facts and circumstances here were certainly of no exception in denying a fit biological father’s request for residential custody of the child.

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Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group. Robert practices throughout New Jersey and is based in the firm’s Roseland, New Jersey office.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

*photo by supakitmod courtesy of freedigitalphotos.net

VALENTINE’S DAY – A TIME FOR LOVE, LAUGHS, AND DIVORCE??

Posted in Divorce

It is that time of year – snow is on the ground (at least here in Jersey), the temperatures are bone chilling, football is over, many women are already lining up to see Fifty Shades of Grey and what else?  Oh right, Valentine’s Day, where men scramble for the perfect gift, the ideal box of chocolates, and something inspirational in a card to say other than “Happy Valentine’s Day.” I was reading a list of the top Valentine’s Songs the other day and “Endless Love” topped the list.  If you are going through a divorce or are already divorced, however, you likely want to delete this Diana Ross and Lionel Richie ballad from your iTunes account because Valentine’s Day need not be the reminder of better times that most think it should be.

HEART

Instead, it can be thought of as a fresh start for the newly divorced, or a reminder that that you moved on from that previously bad situation.  Valentine’s Day is completely commercialized anyway, right?  Maybe you were waiting for the 14th to pass, or that huge blow up finally occurred that broke the camel’s back.  In fact, while most stories focus on the rise of divorce filings in January or in September after the Summer comes to a close, filings also rise soon after VD.  It may be more of the so-called “new year” effect carrying over into mid-February, where people first meet with attorneys and get their documents together in January, and then file before March.  I have also previously blogged about how divorce filings are actually at the highest point in March each year.  So either there is a trend, or divorce filings are simply higher at all times of the year except for the Summer when people are with their kids or traveling more frequently.

Being mentally prepared to move on with your life and cast aside memories of the annual gift of roses is critical.  Going through a divorce or a post-divorce matter is not just about getting your documents in order and having your lawyers draft vehement arguments and advocate in your favor.  Rather, it is also about being psychologically willing and able to stand up to the other person who will do everything that can be done to make a final termination of your relationship as difficult as can be.  This may go well beyond the litigation in and of itself.  Oftentimes, a therapist may be the right move to get you into the right frame of mind to move on with a healthier life from an unhealthy situation.

Valentine’s Day need not be about remembering the champagne, candy and teddy bears.  Rather, it can be seen as that true clean slate or fresh start that you need it to be.

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Robert A. EpsteinRobert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group. Robert practices throughout New Jersey and is based in the firm’s Roseland, New Jersey office.  He can be reached at (973) 994-7526, or repstein@foxrothschild.com.

Connect with Robert: Twitter_64 Linkedin

*photo courtesy of freedigitalphotos.net