NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Alimony, Child Support, Child Custody, Prenuptial Agreements, Essex, Morris, Mercer, Atlantic

Earlier this year, we blogged about  of our colleague, Aaron Weems' post on our firm's Pennsylvania Family Law Blog, which advised that any recommendations by a parent coordinator would be given a de novo review by a court.  A de novo review means that the Court is taking a completely fresh look at the issue and is not obligated to make or accept the same conclusions, interpretations, or issue the same Order as the prior level did (in this case, the Parent Coordinator); their job is to look at all of the information as though it is brand new to everyone and reach a decision based on the evidence presented.

This week, Aaron posted a piece entitled New Rule: No Parent Coordinators Allowed on that blog.  Aaron advises that the Pennsylvania Supreme Court enacted a new rule that stated:

Only judges may make decisions in child custody cases. Masters and hearing officers may make recommendations to the court. Courts shall not appoint any other individual to make decisions or recommendations or alter a custody order in child custody cases. Any order appointing a parenting coordinator shall be deemed vacated on the date this rule becomes effective (Editor’s Note: May 23, 2013)....

Aaron noted that this ended the quasi-judicial role of parent coordinators.  He also wondered whether this would result in increased enforcement and modification proceedings. 

As I noted when commenting on Aaron's prior post regarding the de novo review:

Isn't that was it supposed to happen in NJ? Under the now defunct Parent Coordination Pilot Program which we have blogged on many times in the past, recommendations of a parent coordinator, if accepted, were to immediately become a court order. However, either of both parties objected, either or both could bring the matter to the court for review. That said, it really wasn't a de novo review because the court would have the recommendation made by the parent coordinator. All too often, thought the judge is not supposed to defer to the parent coordinator, this is exactly what happened, 

So bravo to Pennsylvania for requiring a true de novo review, where judicial authority is not abdicated to a third party and evidence is actually considered. On the other hand, a malevolent party will object to every recommendation, totally vitiating the purpose of a parent coordinator in the first place, and causing the other party to incur fees, first for the parent coordination and then for the inevitable subsequent litigation.

As I blogged previously, New Jersey, while ending the pilot program, does not preclude the appointment of parent coordinators.  If courts defer blindly to the recommendations of parent coordinators, without thoroughly reviewing the issues, will New Jersey be next to totally bar their use? 

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Eric 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 practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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The number of college graduates living with their parents has almost doubled since 2007. Currently, over 45% of 26-year-olds live at home with their parents. The figures highlight the difficulty that many young Americans have had in establishing careers following the longest recession this country has faced since the Great Depression. Some children, although employed, simply lack the funds to move out and may remain with their parents, even well into their twenties.

As a Matrimonial Attorney, these staggering statistics present an interesting question as to a non-custodian’s obligation to continue contributing to the support of a child, though a college graduate and/or employed, is still ostensibly supported by his or her parents; at least with regard to shelter expenses.

In New Jersey, a parent is under no duty to contribute to the support of an emancipated child. In deciding whether to emancipate a child, a Court will generally examine whether the child has “moved beyond the sphere of parental influence.” When a child moves beyond the sphere of influence and responsibility exercised by a parent and obtains an independent status on his or her own, generally he or she will be deemed emancipated. As mentioned above, a curious situation presents itself where the child should be self-supporting, but the economy prevents him or her from obtaining lucrative employment.

A similar, yet instructive, situation was the topic of a recent (unreported) decision by the Appellate Division in Gall v. Gall. In Gall, the parties’ son, Brian, lived at home and intended to enroll as a full time student in the future. He worked full time, paid for his personal expenses including gasoline, clothes and food outside the home. However, his earnings were insufficient to allow him to move out of his mother’s home.

The trial court declined to emancipate Brian and awarded child support pursuant to the Child Support Guidelines. In addition, the non-custodial father was required to contribute toward Brian’s college expenses. The non-custodial father appealed.

While the Appellate Division “agree[d] in theory that a full-time college student is not emancipated as there is no ‘fixed age’ for emancipation…” it further found that because Brian was employed full-time and was only a part-time student, he should have been deemed emancipated. As a result, the Court reversed the order of child support as to Brian. In doing so, the Appellate Division set forth a bright line (although non-precedential) rule of thumb: “…a child over the age of eighteen, working full-time, and attending school only part-time, absent some unusual circumstances…is emancipated even if residing with a parent because his or her employment income is alleged to be insufficient to allow the child to live independently.”

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During the early stages of my legal career, I had the opportunity to work on a tragic case, Khan v. Rajput, which resulted in the unpublished appellate decision, which can be located here, http://law.justia.com/cases/new-jersey/appellate-division-unpublished/2010/a3122-08-opn.html  

The case centered around my efforts to facilitate the return of two young children to their father, Mr. Khan, after their mother removed them from New Jersey to Pakistan, without his consent. Ms. Rajput, then a medical student in the US, escorted the children back to her homeland to live with her family. After several months, she returned to the US without the children in order to complete her schooling. Upon arrival, she was arrested at the airport but patently refused to return the children to their father. She was subsequently released from custody, and we instituted trial court proceedings to ensure the children’s swift return. However, Pakistan’s unwillingness to be a party to Hague Convention meant that unless the case became a national story that it would be an uphill battle to compel their return.

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All over yesterday's news, including the Dallas Morning New, were reports that Deion Sanders won his custody trial.  As reported, Deion received sole custody of his two sons with his wife, Pilar.  The parties also were awarded shared custody of their daughter.  In English, Deion will make all educational, health and extracurricular decisions for his two sons, ages 11 and 13, and the parties will share that responsibility for their 9-year-old daughter

As these things tend to be, this was a nasty custody fight, with Pilar making allegations of abuse and Deion alleging that this was all about the money. 

For a New Jersey divorce attorney, what is also interesting about this case is that it was decided by a jury of 7 women and 5 men.  The concept of a jury deciding custody, or for that matter, any family law issue other than perhaps (but not always) a marital tort, is completely foreign in New Jersey and most jurisdictions.  In fact, other than perhaps Georgia, I am unaware of any other jurisdiction where there are jury trials for custody.  New York used to have jury trials to decide a contested divorce - i.e. whether the fault cause of action had been proven.  I suspect that this too is largely a thing of the past since no-fault divorce was recently enacted in New York, as previously noted on this blog.

In New Jersey, typically custody decisions take weeks if not months to get a decision from a judge.  In the Sanders case, the jury deliberated for less than two hours.  In New Jersey, the decision is determined less by the he said/she said, mud slinging, and more upon the testimony of one or more custody experts.  Moreover, as noted in my blog post last week entitled Custody - Back to Basics, the decision must consider the 14 factors set forth in the custody statute.

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Yesterday, my post on this blog was called "Alimony - Back to Basics."  Just like with alimony, over the years, we have had dozens of posts on this blog about custody and parenting issues.  However, just like with alimony, there are statutory factors that the court, as well as the custody experts, must consider when making decisions (for judges) or recommendations (for experts) related to custody and parenting time.

The following is a refresher on the custody factors set forth in N.J.S.A. 9:2-4 that must be considered:

1. the parents' ability to agree, communicate and cooperate in matters relating to the child;

2. the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse;

3. the interaction and relationship of the child with its parents and siblings;

4. the history of domestic violence, if any;

5. the safety of the child and the safety of either parent from physical abuse by the other parent;

6. the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision;

7. the needs of the child;

8. the stability of the home environment offered;

9. the quality and continuity of the child's education;

10. the fitness of the parents;

11. the geographical proximity of the parents' homes;

12. the extent and quality of the time spent with the child prior to or subsequent to the separation;

13. the parents' employment responsibilities;

14. and the age and number of the children.

These factors are not all inclusive but represent the minimum of what must be considered.  After you decide that you wish to seek custody (or perhaps before you decide to jump into that battle) you should go down each of these factors and review, as objectively as possible, how they would apply to your case.

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Eric 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 practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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An interesting case was recently decided by the United Supreme Court involving an international custody dispute, which has particular relevance for members of the military. For the case, click here. When there are allegations of parental kidnapping, or an unlawful removal of children to another country, there is an international treaty, known has the The Hague Convention on the Civil Aspects of International Child Abduction which provides an expeditious method intended to return a child removed by a parent from one member nation to another.   The primary intention of the Convention is to maintain the custody arrangement which existed immediately before an alleged wrongful removal thereby deterring a parent from crossing international boundaries in search of a more sympathetic court. The Convention applies only to children under the age of 16.

Unfortunately, not all countries are signatories to the treaty (most notably, the majority of Middle Eastern countries are not). However, those that are give litigants an important process to be heard when a child is unlawfully taken. The core premise of the Hague Convention is that custody disputes should be resolved in what is known as the child’s “habitual residence.” Recently, a father who had been denied relief by an American Court when it was found that Scotland was the habitual residence of his daughter had his case reinstated by the United States Supreme Court.   

The Hague Conventions requires the judicial or administrative authority of a signatory country to order a child returned to his or her country of habitual residence if the authority finds that the child has been wrongfully removed to or retained in the contracting country. The International Child Abduction Remedies Act (the name of the United States law which implements the Convention in the United States) also requires defendants to pay various expenses incurred by plaintiffs associated with the return of children. Generally, once a child has been return to his or her country of habitual residence, the case is considered concluded. However, this can, as the Supreme Court concluded, lead to inequities.         

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Early in case where children are involved, we discuss the different types of custody.  There is residential custody - i.e. who the children live with and the resulting parenting time for the other parent. Then there is legal custody which is decision making regarding issues of the health, education, religion and general welfare of the kids.  in 99% of the cases, the parties will share joint legal custody - it is usually a no brainer.  in fact, In the New Jersey Supreme Court’s seminal decision of Beck v. Beck, 86 N.J. 480, 497-501 (1981), the Court stated as follows with regard to whether joint custody should be awarded:

At a minimum both parents must be ‘fit’ that is, physically and psychologically capable of fulfilling the role of parent.

That said, the minimum requirement of joint legal custody is the ability to communicate and cooperate on some basic level as it relates to the best interests of the children.  The Court in Beck further noted:

The judge must look for the parents’ ability to cooperate and if the potential exists, encourage its activation by instructing the parents on what is expected of them. . . [W]hen the actions of [an uncooperative] parent deprive the child of the kind of relationship with the other parent that is deemed to be in the child’s best interests, removing the child from the custody of the uncooperative parent may well be appropriate as a remedy of last resort.

Again, in Beck, the Supreme Court of New Jersey has written:

The most troublesome aspect of a joint custody decree is the additional requirement that the parents exhibit the potential for cooperation in matters of child rearing. This feature does not translate into a requirement that the parents have an amicable relationship. Although such a positive relationship is preferable, a successful joint custody arrangement requires only that the parents be able to exclude their personal conflicts from their roles as parents and that the children be spared whatever resentments and rancor the parents may harbor. Beck v. Beck, 480, 498 (1981).

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There is never a shortage of new and interesting stories involving social media that impact upon our world of family law.  We have previously blogged about what NOT to do online, because there may be a spouse ready and willing to use such online postings, pictures and the like against you in your divorce proceeding. 

Apparently the Mom in the case of Melody M. did not read our blog posts. In a decision from a New York appellate court that garnered enough attention that I first read about it in the New York Daily News, Mom lost legal custody of the children for being mean to her oldest child on Facebook.

The basic facts were relatively straightforward.  The parties entered into a separation agreement in 2006 providing for joint custody of their three children, with "alternating physical placement."  In 2009, the parties stipulated to continuing joint legal custody, with Dad having primary physicla custody and Mom having scheduled parenting time for an evening each week and on weekends during the school year.  In 2010, Mom commenced the first proceeding to increase her parenting time.  Dad opposed the requested modification, and, among other things, sought his own form of modification by requesting that he be granted sole legal custody of the children.

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In the newly published decision of Benjamin v. Benjamin out of the Ocean County Family Part, which has released several reported decisions within the past few years, the court held that having a guaranteed job in another state is not a mandatory prerequisite for it to approve a custodial parent's request to relocate to another state with a child born.  The court did hold, however, that the "likelihood that the custodial parent can provide the child with a financially stable household in the new state, including obtaining employment as necessary is relevant in determining whether a proposed relocation is reasonable or inimical to a child's interests."

On first blush, the court's statement that the primary residential custodian has the right to seek relocation almost suggests that such a right is automatic.  A closer read of the decision and its ultimate holding, however, indicates that the standard fits within the existing relocation standard. 

The parties were divorced in 2008 and agreed in a settlement agreement that mom would be the child's primary residential custodian.  In 2012, mom filed an application to relocate with the child to North Carolina, which dad objected to by filing a cross motion seeking a transfer to him of residential custody.  One of dad's arguments was that mom did not have a job in North Carolina, which would inure to the child's financial detriment.

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Aaron Weems is an attorney in our Blue Bell (Montgomery County), Pennsylvania office and editor of the firm's Pennsylvania Family Law Blog wrote an excellent post entitled "Trial Court Must Conduct De Novo Hearings on Parent Coordination Appeals."  As Aaron notes:

 A de novo review means that the Court is taking a completely fresh look at the issue and is not obligated to make or accept the same conclusions, interpretations, or issue the same Order as the prior level did (in this case, the Parent Coordinator); their job is to look at all of the information as though it is brand new to everyone and reach a decision based on the evidence presented.

Isn't that was it supposed to happen in NJ?  Under the now defunct Parent Coordination Pilot Program which we have blogged on many times in the past, recommendations of a parent coordinator, if accepted, were to immediately become a court order. However, either of both parties objected, either or both could bring the matter to the court for review.  That said, it really wasn't a de novo review because the court would have the recommendation made by the parent coordinator.  All too often, thought the judge is not supposed to defer to the parent coordinator, this is exactly what happened. 

So bravo to Pennsylvania for requiring a true de novo review, where judicial authority is not abdicated to a third party and evidence is actually considered.  On the other hand, a malevolent party will object to every recommendation, totally vitiating the purpose of a parent coordinator in the first place, and causing the other party to incur fees, first for the parent coordination and then for the inevitable subsequent litigation.

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Eric 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 practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Very often, clients ask us how old their child has to be before he or she can choose which parent they want to live with.  The answer is not a simple one.  In most cases, absent undue influence or improper involvement of a child in the matter (or worse yet, alienation), once a child is a teenager, their wishes, while not determinative, should at least be considered.  Again, the age and weight given a teenagers wishes varies from judge to judge.

In fact, I tried a case a few years ago where it was undisputed that all of the children said that they wanted to spend more time with the father.  However, it was also undisputed that the father repeatedly improperly involved the children in the matter, or worse, and this, it was also undisputed that additional time with the father was not in the children's best interests.  As a result, his request for more time was denied.  About two years later, he tried to get more time again.  The motion judge (now a second judge hearing this issue) denied it because the submissions confirmed that the father was still improperly involving the children.  Two months later, with no new facts, and no evidence that more time was in the child's best interests, a third judge let the 17 year old go live with the father because it was this judge's belief that, unequivocally, a teenager can choose where they want to live.

This concept was recently discussed in the case of M.I. v. B.I., an unreported (non-precedential) Appellate Division decision released on January 23, 2013.  In this post-judgment case, the Appellate Division repeated the concept that the law requires that a teenager's (here a 15 year old) preference be considered absent evidence that the child was overly influenced by the parent with who she wanted to live.

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On the heels of my blog entry from earlier this week addressing the issue of parenting time with the other spouse's significant other comes the recently unpublished (not precedential) decision from the Appellate Division in R.C. v. P.J.C.

The parties entered into settlement agreement providing that mom would have primary residential custody, and dad would have parenting time as specified in the agreement.  The agreement provided that "[n]either party shall have a significant other in the presence of the children on an overnight basis for [six] months following [the] divorce."  It further provided that the parties should generally conduct themselves in a manner "consistent with the best interests of the children."

A few months following settlement, dad filed a motion alleging, in part, that mom violated the agreement by allowing her "significant other" to spend nights at her home in the presence of the children.  Mom admitted that her boyfriend did occasionally stay overnight at her home, and that her actions were justified because "in the grand scheme of things, [her] violation on this issue [was] a small infraction."  For a variety of reasons relating to the pending applications, the trial court interviewed the child as to his relationship with each parent, during which time the child provided that mom's boyfriend treated her nicely, visited the home several times per week, and takes him to sporting events.  He added that the boyfriend did not live in the home, only staying overnight on two occasions (once to protect the family, and the other time due to a hurricane).

On appeal, dad argued that the trial court failed to address his claim that mom violated the agreement by having her boyfriend stay overnight at her home in the child's presence.  Addressing the issue, the Appellate Division provided:

In our view, the trial court erred in failing to address this issue when it entered its  November 21, 2011 and February 22, 2012 orders. Although the PSA's provision regarding overnight visits by a "significant other" may no longer apply due to the passage of time, such visits may violate the other provision of the PSA if they are not in the "best interests of the children." The court should address this issue on remand.

The Court's commentary as to the "passage of time" was strictly based on the language of the agreement, leaving the trial court on remand to analyze whether the visits, while perhaps no longer in violation of the time provision, were not in the best interests of the children. 

While my prior post discussed changing social norms and greater acceptance of such parenting time, ultimately this case demonstrates that the best interests of the child must always be considered based on the specific facts and circumstances at issue. 

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Robert Epstein is an associate in Fox Rothschild LLP's Family Law Practice Group. Robert practices in the firm's Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com.  

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Clients frequently ask whether it is appropriate for his or her spouse to exercise parenting time with the children in the presence of the new significant other.  The questions usually go something like this:

• Can she be there when the kids are there?
• Should they be sleeping in the same room with the kids right down the hallway?
• How can he be there with the kids when I have not met him?
• Does this impact our custody and parenting time dispute?
• Are the kids going to get mixed messages?
• Should we bring this to the court's attention and, if we do, will the judge even care?

These are just a few of the questions that may arise when your spouse starts dating someone in the middle of the divorce and wants to introduce the children to that person, have parenting time with that person present and, perhaps, have overnight parenting time with the kids just a few feet away in the room next door. 

With the changing times come changing attitudes towards such parenting time.  Exposing the children to a new girlfriend or boyfriend is not nearly as taboo as it once was, and, at least in New Jersey, it is generally accepted.  While this is an issue that can always be discussed between the parties and counsel, and while there are always certain cases where a judge might think twice about exposing the children to a new significant other, such as if there is a suspected harm to the children in doing so, there is usually no longer an issue. 

I find that judge's are less willing, however, to allow overnight parenting time, at least during the divorce, depending on a variety of factors including, but not limited to, the circumstances surrounding the new relationship, the sleeping arrangements, and the like. On the more extreme end, I recently had a case where my client's spouse had an affair and then demanded to exercise her overnight parenting time with the children present where the kids were aware of what was going on.  Evaluating the circumstances at issue, the trial judge sensibly precluded the boyfriend's presence during the wife's overnight parenting time. 

However, as opposed to Alabama - as highlighted in Eric Solotoff's recent blog post - such conduct will also likely have little to no impact on a custody dispute.

Thus, while you may dislike the idea of your children meeting the new boyfriend or girlfriend, changing social norms dictate that it is more likely to be accepted than not.  With that in mind, divorcing parents should work together to make the children understand and feel comfortable with the changing situation.  The dating spouse should take caution in how, when and where the children should first meet the new person in their life.  Ultimately, courts are going to watch out for the best interests of the children, and any hint that the situation poses a negative to the children will be immediately addressed as necessary.

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Robert Epstein is an associate in Fox Rothschild LLP's Family Law Practice Group. Robert practices in the firm's Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com.  

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Every month, I get an email with entitled Case Update from the ABA Family Law section which contains blurbs from interesting decisions throughout the country.  This week, I got the December 2012 update and had to take two steps back when I read the following blurb:

Trial court may, in an initial custody determination, consider a parent's sexual conduct as it relates to that parent's character, without a showing that the conduct has been detrimental to the child; court may also consider fact that parent does not regularly attend church.

Wow!!!  Mind you, the case is from Alabama, not New Jersey.  In New Jersey, I doubt very much that conduct which is not detrimental to the child would be considered, whether it is gambling (and I actually had a case where a father, a bookie in his spare time, took his kids when he was meeting his bookie), use of pornography, affairs, an affinity for S&M, etc. 

That said, the blurb appealed to my "prurient interests" and hooked me in so I had to read the case.  I figured that there must be some crazy conduct going on.  I figured. at the very least, I may have a good story to tell.

Wrong!  The parties were divorced in 2007 but the ancillary issues, including custody were bifurcated.  The custody hearing took place in 2010.  What was the crazy sexual conduct that impacted the custody determination, you then ask.  The mother was living with her fiance',  The relationship, by the way, did not become sexual until 2009.  By the way, part of the reason for the delay in addressing custody was that the issue was put on the back burner in the divorce decree until the conclusion of criminal proceedings against the father for the alleged sexual abuse of the mother's child from a prior relationship.

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We don't typically post about DYFS (now DCPP) or similar type cases on this blog as we usually focus on divorce and related issues. That said, for fun, I was reading the new cases that were decided yesterday and came upon a case that I found compelling, both because it indicated some systemic problems in custody cases and because it had some real strong language about parental rights - that while stating the obvious, perhaps, did so in a powerful way and in a way that needed to be reiterated. 

The case I'm talking about is  C.D., A.P. and D.D. v. N.D.M.  and A.L.   which was an unreported (non-precedential) decision released by the Appellate Division on January 8, 2013.  In that case, the aunt and grandparents received temporary custody of her niece and a best interest evaluation, to be completed within 90 days, was ordered.  The parties ultimately agreed to a joint expert to do the evaluation,  That evaluation, which by court order was to be completed in 90 days, took more than a year to complete.

SYSTEMIC ISSUE #1:  All custody and best interest evaluations are supposed to take 90 days or so.  That almost never happens.  Rather, it is not unusual for it to take 6 months or longer to get a report.  If it is a joint or court appointed expert, the party who doesn't like the report has the right to get their own report so add another several months to the process.  As in this case, where the mother's custody with her own child hinged upon this report, the prejudice cannot be quantified.

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We have all grappled with the fact that former spouses move, and oftentimes, a residential parent wants to take the children with her or him. While we have previously discussed the issue of removal in other posts, a recent decision discusses the issue of which court a parent must look to in the case of a problem after the move.

In the unreported decision ( non-precedential)  of Horton v. Horton, at the time of the parties’ divorce in 2008, the father agreed that the mother could move to South Carolina with the minor children. She relocated between the time of divorce, and 2010. Sometime thereafter, the father encountered difficulties in exercising his parenting rights and sought assistance from the courts in New Jersey.  Because it initially entered the custody determination, the Family Part could modify its determination so long as it retained what is known as exclusive, continuing jurisdiction.   The Horton court noted that only a New Jersey court can determine that New Jersey has lost jurisdiction based on a lack of significant connection and substantial evidence.

When the issue of whether custody type decisions should be moved to a different state arises, the focus becomes  which state has the most significant connection with the children. This includes access to information about the children, including school and health records, location of witnesses with current information about the children, and location of experts who may be involved with the children. A court also must focus on the relationship between the child and the parent remaining in the state.  When that relationship becomes too attenuated,  jurisdiction is lost.   In short, substantial evidence is needed of the children's care, protection, training, and personal relationships within this state.

It was noted by the court in remanding to the trial level, in all likelihood, the children’s significant connections were in South Carolina. The lesson to be learned here is to be mindful of the fact that once a move occurs, the remaining parent will probably have to seek counsel or assistance in a state other than New Jersey in the event of an issue down the road.  This should be considered when negotiating a request to move.  Perhaps, you can demand that the agreement require that New Jersey retain jurisdiction and that the other party cannot ever seek to change jurisdiction if the left behind parent is still in New Jersey (though this may not be enforceable). 

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Back in 2009, we blogged about the possible inclusion of Parental Alienation Syndrome in the long awaited next version of the Diagnostic and Statistical Manual of Mental Disorders (DSM). 

In that post, I discussed a US News and World Report article that addressed a movement afoot to add "parental alienation" to the next addition of the DSM (ie. Diagnostic and Statistical Manual of Mental Disorders) published by the American Psychiatric Association.

However, as expected for some time, the American Psychiatric Association board of trustees has recently approved the DSM 5 which has will be released in May 2013 and it has been confirmed that Parental Alienation Syndrome will not be included in the DSM V.

I am sure that this is both a defeat to some and a happy time for others. As I noted back then, while there appears to be little debate on whether parental alienation in both subtle and not so subtle forms goes on, there is a debate as to whether it represents a mental illness. On top of that, there is concern that certain opposition to visiting with a parent could either be age appropriate (eg. a teenager being oppositional) or otherwise justified.

No matter where you stand on the debate as to whether parental alienation is a mental illness, it is clear that alienating behavior in whatever form, big or small, cannot be good for the children that are exposed to it.  That said, because it will not be in the DSM, the debate over the issue shall rage on.  Moreover, without a diagnostic code, it will be difficult to get insurance companies, where coverage for mental health issues is often challenging, to pay for treatment related to parental alienation.
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Eric 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 practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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This is not a perfect world we live and and few of us are perfect and free from vices.  There is, however, a difference between imperfections and either addiction and/or mental illness that could impair a person's ability to parent their children.  Often, when these issues arise, we try to build safeguards into agreements to protect the children where there is a history of alcoholism, drug abuse or significant mental illness.

These are always tricky cases because the infirm party often (1) is in denial or at least downplays the severity of the issue, (2) doesn't want their problem in writing in a written agreement; (3) there is no agreement as to whether there even is a problem; etc. As such, there are times that we do our best with agreements to put as much teeth as possible into agreements to avoid the cost of trial, not over the actual parenting time, but the protections to be put in place when someone falls off the wagon.  With compromise, however, comes the chance, not necessarily of actual risk to the children (thought that certainly is possible too) but the possibility of putting the kids in danger and being left to fix a problem after damage has been done.

The title of this post is came to me after reading the Y.A.B. v. A.C.B. unreported Appellate Division decision released on November 28, 2012.  In that case, despite evidence that he former husband, who had acknowledged alcohol issues, may have been drinking  (private investigator reports showing him buying alcohol, Facebook pictures of him holding a beer and a Certification from an ex-girlfriend regarding the husband's alcohol use), and protective language in the agreement, not only was his parenting time not meaningfully curtailed, but the ex-wife was seriously chastised for bringing her application.

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With the holiday season upon us, this is the time of year when matrimonial lawyers face all kinds of questions from our clients. Special situation arise which were unanticipated at the time of the break up arise, parenting time changes, as well as arguments about which parent gets to purchase certain presents for the children. 

New relationships often pose issues at the holidays which are at best, murky. When a new significant other practices a different religion, tough challenges are presented. Certainly, there are some religions, which while different, have such similar customs that   there are few issues presented. However, other situations involve practices which are far different, and pose such theological and philosophical differences, that the lawyers get called in. What happens, for instance, when there is an agreement between divorcing parents, put into the settlement agreement, to rise a child in the Christian faith, and then one parent ( let’s say Dad) marries someone who celebrates a different religion, and then he wants to include the child in the celebrations of step mom?

In New Jersey, as in most states, the primary custodial parent has the unquestionable ability to make religious determinations relating to a child. This is consistent with the philosophy that as a primary custodial parent, one has the right and indeed, the obligation, to make decisions which are in the best interests of the children.

More difficult questions arise, however, when the parents have reached an agreement, in a settlement agreement, which is a contract, which is impacted by religious celebrations.   While courts will generally enforce an agreement ( for instance, there are cases in which judges have compelled a parent to pay for parochial school when that obligation was part of a written agreement), judges cannot and will not make an individual take any action which is contrary to that person’s religious beliefs. 

Judges, however, are mindful of our multicultural families, and have at times, reminded litigants of the price that can be paid when children are placed in the middle of religious disputes. In one case, the trial court was involved in a situation in which a Jewish father had residential custody of three children.   The mother was Catholic. Part of the dispute between the parents was the fact that the older daughter wore a cross while in the father’s home. While the court’s order acknowledged that the father had the final say, he court had the following to say to the father:

I will not have them used to advance somebody else's agenda. I don't care whether its Hasidic. I don't care whether it's Jesuit. I don't care whether it's Muslim. I don't care what it is. The children will not be used as a vehicle. You cannot enforce your personal views in this situation to their detriment. They are being exposed to a multicultural reality. If you don't understand that, if you can't live with it, then you will suffer and they will suffer. That is not what I want to happen.

The Appellate court noted that the trial judge was not expressing a preference for the Catholic religion, but rather he was attempting to respect the religious freedom of the child.

Kids are exposed to many customs and practices through their friends, social media, and TV without having a negative effect on them.   As long as the child is comfortable, learning about a step parent, or significant other’s customs may not necessarily be a bad thing. The holidays are meant to be enjoyed.

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Yesterday, Judge Grant, the Acting Administrative Director of the Courts, announced that effective November 26, 2012, the Parenting Coordinator Pilot Program would be ending. The notice further provides that judges may still appoint parenting coordinators (PCs) and even provides model, but not mandatory, Orders for the their appointment. 

To those who oppose the use parenting coordinators, they may see this announcement as a victory of sorts.  However, I would not start jumping for joy, right away.  The good thing about the pilot program is that there were at least published guidelines approved by the New Jersey Supreme Court that could be followed.  In fact, as I wrote on this blog in September of this year we learned from the Milne v. Goldenberg reported decision that even in non-pilot program counties, if a PC was appointed, the Pilot Program guidelines had to be followed.  Query how this provision of the Milne case jibes with the above announcement but only time will tell.

If the Guidelines don't apply, are we going to return to a wild west environment like we had before the Guidelines?  In fact, I blogged about the pre-Guidelines madness all the way back in 2008.  As I noted then, over the years, judges began to make numerous appointments to attempt to, if not rid the courts, at least create a buffer for parenting and visitation issues that arose daily/weekly/monthly in high conflict divorce and post-divorce matters. Sometimes the professional was called a parent coordinator, other times it was a therapeutic monitor, a mediator, a parenting coach, etc. The role was generally the same, that is, to present these issues to a neutral third party that had either a legal or mental health background, or both, to assist the parties work out the differences and in many instances, make recommendations if they could not. 

The problem was that there was no uniformity to what this person, whatever they were called, could do.  Even Pre-Milne but post-Guidelines, I had cases where parent coordinators in non-Pilot Program counties were vested with incredible powers bordering on, if not crossing the line of the abdication of judicial authority, which is not supposed to happen.

Only time will tell whether the role of parent coordinator will go the way of the dinosaurs or go back to the free for all that existed pre-Guidelines.  Until then, we watch and hope that the dissolution of the Guidelines will not make things worse, instead of better.

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Eric 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 practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Aaron Weems is an attorney in our Blue Bell (Montgomery County), Pennsylvania office and editor of the firm's Pennsylvania Family Law Blog wrote an excellent post entitled "Emotional Abuse Just as Harmful as Physical Abuse."

While some of the local programs Aaron discusses for his county may not be available in New Jersey, the piece provides a good explanation of the issues and I encourage you to read it.

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Eric 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 practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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If I were to tell you that the victim of domestic violence was put out of the marital home and the abuser was granted temporary custody of the kids, you would say I was crazy.  The Appellate Division would agree and in reported (precedential) decision released on October 19, 2012 in the case of J.D. v. M.A.D.(ironically), reversed such a holding by a Camden County trial court. 

In this case, the defendant's discovery of the victim's infidelity lead to an act of domestic violence.  The victim, however, wanted to remain in and work on the marriage.  The defendant wanted "space" and somehow convinced the victim to leave the home and sign a document giving him primary custody of the children.  The parties later reconciled and the victim returned to the house.  However, unable to control his anger over her affair, a number of additional acts of domestic violence occur ed, culminating with the entry of a TRO against the defendant.  At the Final Restraining Order hearing, the judge then entertained argument "as to who should have possession of the marital home and as to who should have
temporary custody of the children."  The trial judge decided that it should be the defendant, finding that the anger only occur ed when the parties were together and as such because the defendant had been the primary caretaker, he was awarded temporary custody and the victim was excluded from the marital home. 

The victim appealed and the Appellate Division reversed, holding:

The trial court's findings, set forth in the beginning of this opinion regarding the events over the course of the seven months following defendant's discovery of his wife's extramarital affair, are supported by substantial credible evidence in the record and we do not disturb them. The facts as found, however, do not overcome the presumption embodied in N.J.S.A. 2C:25-29b(11), governing the court's award of temporary custody
in a proceeding under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, "that the best interests of the child are served by an award of custody to the non-abusive parent." Moreover, these facts cannot support an order granting exclusive possession of the marital home to the party the court has found to have perpetrated the abuse.

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An issue that has vexed us in the past is whether the rules enacted by the Supreme Court regarding parent coordinators were to be applied to all parent coordinators appointed by the Court.  In 2006, the New Jersey Supreme Court implemented a pilot program in four vicinages (Bergen, Morris/Sussex, Union and Middlesex) for parenting coordinators.  The link above provides the Supreme Court mandated guidelines and procedures which have also been discussed on this blog previously.

The problem arose when a parenting coordinator was appointed outside of one of those vicinages.  To my chagrin, I have heard judges state and lawyers argue that since their vicinage was outside of the pilot program, they did not have to follow the guidelines.  This was often in the context of a court improperly vesting a parent coordinator with authority which approached or could be argued to be an abdication of the judicial role. 

Finally, we have an answer to this question in the reported (precedential) case of Milne v. Goldenberg decided on September 12, 2012.  The case seems like a never ending, "war of the roses" type custody battle and also has some interesting discussion regarding the role of a Guardian ad Litem and procedures related thereto.  That said, the parent coordinate issue was addressed because the court appointed an attorney who was not on the court approved, pilot program parenting coordinator list. 

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While it doesn't happen in every case, from time to time there is a request made by a client or opposing counsel to tape the meeting between the opposing expert.  This happens more frequently in contested custody cases, but it could happen as to any expert, I suppose.  The general rule seemingly had been that these sessions can be taped (with notice - not surreptitiously).  Why do people want to do this?  Some people are not trusting.  Others want to make sure that they are not misquoted in an experts report.  Some even do this if an expert is known to ask leading types of questions suggesting a response that may then be used against the party being interviewed.

A question recently arose as to whether the experts can be compelled to tape all interviews, not only of the one party, but of the children too.  In a reported (precedential) trial court opinion in the case of Koch v. Koch which was decided last year but approved for publication last week, the judge refused to allow all interviews to be taped.  Specifically, the court concluded that concludes that a party has the right to record his or her own interviews with a psychologist or psychiatrist, but does not have the right to compel the other party’s expert to record interviews of the other party or the parties’ children.

As to the general rule noted above, the judge here was not so sure and the opinion included a threshold discussion as to whether expert interviews in a custody case could be taped since the case that lawyers generally relied on involved the taping of a session with a psychologist in a civil litigation.  Notwithstanding the conclusion, the judge noted:

Accordingly, a custody evaluation is an expert report where the court expects, and is
assisted by, the independent professional judgment of a licensed mental health expert.  Requiring recordings could undermine the very purpose of the evaluation. If the children know that they are being recorded, and know that their parents are in a custody dispute, the children might be less candid for fear that their parents will hear what they say to the evaluator. Such recordings effectively bring the parents into the children’s interviews and could distort the information needed to prepare an accurate and balanced evaluation.

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Fox Rothschild's New Jersey Family Law Legal Blog welcomes Kelly Sutliff, MA, LPC, NCC, a licensed professional counselor with Kelly Sutliff, LPC, located in Madison, New Jersey, as a guest blogger.

Having known Kelly for over ten (10) years and speaking at length with her about the trauma that many children suffer through as a result of divorce, I thought it would be helpful for readers to hear about the mental and emotional impact of this process from a mental health professional. Below is an excerpt from a piece written by Kelly to better help parents going through a divorce understand the impact on their child.

"It's my fault". "My parents don't love me anymore". "I lost my family". "I'll never see my mom/dad again". These heartbreaking comments are commonly mentioned by children affected by divorce. Although these comments may be unrealistic, the sense of loss a child may feel as a result of his or her parents' divorce can be overwhelming and devastating. It is important for parents to help their children to cope with the divorce as well as to seek outside professional help, if needed.

Divorce can be an emotionally traumatic experience that can have an impact on a child's feelings of safety, security, and stability. Frequently, the stress children feel as a result of their parents' divorce relates to the family structure changing. Children fear change and the amount of changes that follow a divorce can be overwhelming and frightening. Many children also feel a loss of attachment to one or both of their parents after a divorce. Changes in scheduling and how often they see a certain parent can cause a certain amount of distress. The fear of being abandoned is also a fear that many children of divorced families face. Often, they feel that because one parent has moved out of the "family home", they are likely to lose the other parent at some point as well. They may blame themselves, feel unloved, and worry that they are the cause of their parents' relationship ending. Another factor that can lead to children's feelings of stress is hostility and fighting between parents. Arguments and tension between parents may make children feel angry, guilty, and alone. Some children feel "put in the middle" of their parents' arguments and believe that they are being asked to choose sides. The internal struggle that these children face when feeling this way can have profound negative effects on their behavior.

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In these uncertain times, it seems as though everyone is talking about the impact of the economy.  We've posted many blogs about proving changed circumstances for an increase or decrease in child support and/or alimony as well as a modification of parenting time.  You can read a few of those blogs here, here or here.

The trend continues.  In the recent unpublished Appellate Division decision of Rosenthal v. Whyte, A-1776-10T4, decided December 5, 2011, stemming from two Orders from the Cape May County trial court, the Court affirmed the lower court's Orders denying Ms. Whyte's motions to modify custody and child support.  To put it simply, Ms. Whyte failed to meet her burden that enough of a change had occurred to warrant a modification of the parties' 2008 Property Settlement Agreement ("PSA").

The parties' 2008 PSA provided for an anticipated move by Ms. Whyte with the minor child to upstate NY, more than 500 miles from Mr. Rosenthal's Cape May county residence.  It also provided that Ms. Whyte was leaving her job as a school teacher to pursue a business opportunity in NY state.  Child support was set with these facts in mind.  Mr. Rosenthal's parenting time was set forth as one weekend each month and one continuous month every summer with an additional week over the summer.

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A few years ago, during a conference with a reasonably new judge used the term "off the shelf parenting plan" to describe what he assumed a normal parenting time plan should be.  This plan was alternate weekends, Friday to Sunday night, and one night per week for dinner.  While my client was happy, because she did not want her husband to have more parenting time, with all due respect to the judge who became a very good family court judge just in time to be rotated to another division, was he right?

If this was the 1970s, 1980s or before, perhaps he would be right - or at least that was the prevalent parenting plan at the time.  However, parenting roles, societal norms and more importantly, psychological and social science research have come a long way since then.  Time and again, you no read and hear that, in most cases, children benefit from as much time as possible with both parents.  This does not necessarily mean an equal schedule and also must be adjusted for the ages of the child(ren).  For instance, a proper parenting plan for an infant or toddler, is different than for an older child.  In fact, for infants, there is a lot of research suggesting that overnights are not appropriate, but that more frequent visits are appropriate.  Much of the literature breaks things up as follows:  birth to 2 years; 2 to 3 years; 3 to 5 years; 6 to 9 years; 10 to 12 years; and teenagers.

What is clear, however, if a non-custodial parent wants substantial overnights with their children, assuming that that the kids are over 5, more likely than not, an custody expert will more likely recommend some type of shared parenting schedule, including perhaps true, shared 50-50 parenting. What do I mean by shared parenting? Between 5 and 7 out of 14 overnights. 

As such, if one party is trying to restrict parenting time, I will often suggest that my client seek a custody expert (joint or their own expert) because of the likelihood that absent some problem (psychological issues, abuse issues, substance issues) or logistical issues (the parties live too far apart to make shared parenting work), most experts usually recommend some type of shared parenting because that is what the research suggests is in a child's best interests. 

Are experts making this recommendations only for super involved parents?  Not necessarily, though the more involved the parent has been, the more likely that they can get a 50-50 plan or 6 out of 14 overnights.  Because sometimes judges (as well as mediators and arbitrators) are not always aware of the current developments in the research, the attorney for the party seeking more time has to educate the judge, mediator or arbitrator.  Sometimes that means getting an expert.  Other times, especially if during a motion early in a case, it may mean filing a brief citing and attaching the articles.

The take away here is that it is rare that a parent has to settle for alternate weekends and one night for dinner if they seek more parenting time. 

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Eric 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, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501 or esolotoff@foxrothschild.com.

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I read an interesting article on The Wall Street Journal.com about the ever growing use of a a child's battle with obesity as a tool for leverage in custody battles to prove one parent is unfit and therefore, should not have custody or should have a reduction in parenting time.

In some cases, parents are blaming a grossly overweight child on the other parent.  In others, it is the use of a child's diet (too much soda, fast food, potato chips) as evidence of bad parenting.  There are also those cases where one parent uses the obesity of the other parent to argue that he or she is simply physically unable to care for the children.

According to a sample of family lawyers from across the country, arguments like the ones above are being heard and utilized more frequently in family courtrooms.  For judges in New Jersey, and many other states, the standard when deciding these issues is what is in the best interest of the child.  The state of Pennsylvania recently altered its definition of best interest to include the physical and emotional well-being of a child.

The article goes on to tell us that "according to the Centers for Disease Control and Prevention, approximately 17%, or about 12.5 million, of the nation's children and teens are obese. Since 1980, according to CDC statistics, obesity rates have nearly tripled."  The statistics are staggering.

Social scientists, legal experts and law professors agree that the rising statistic of both childhood and adult obesity will lead to continuing changes in the law, particularly as the law relates to custody and parenting time.  Thus far in New Jersey, no specific factor of weight or nutrition has been added to our best interest of a child definition/standard.  While there is no doubt that practitioners across the state have likely dealt with the issue in at least one facet, there is no published law which directly addresses these issues.  That said, the article raises an interesting perspective on how a child and/or a parent's weight and dietary habits may be considered in contested custody matters. 

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Keeping with our theme of custody and parenting related blog posts this weekend, I recommend that you read  Aaron Weems', an associate in our Bucks County office and editor of our Pennsylvania Family Law Blog recently post on that blog entitled "Handling the Holidays."

Family lawyers, judges, parent coordinators often don't look forward to holiday seasons because with them come often needless and petty disputes over holiday time.  Aaron's blog provides an interesting perspective on this.  Parents should want their children to remember holidays for the good times, not because their parents put them in the middle of such disputes.  More importantly, the children should not look towards upcoming holidays with dread, wondering if their parents are going to fight about them again.

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Eric 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 practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Yesterday, I blogged about the constitutional protections given to parents when in a custody dispute with a grandparent, including whether a psychological parent receives the same protections that a biological parent receives in such disputes (the answer is no - but you knew that because you read yesterday's post.)

A related topic is what is the standard to apply when a biological parent is in a custody dispute with a third party.  On the same day that the Appellate Division decided the case I blogged about yesterday, they also decided the case of Schwear v. Prigge and Schwear though that case is unreported (non-precedential). This case involved a custody dispute between a natural mother and her child's paternal uncle.  I will spare you the tortured history of the case and focus on what the law is. 

Custody disputes between a natural parent and a third party are governed by Watkins v. Nelson, 163 N.J. 235 (2000).  As the Court in Schwear noted:

In such a dispute, there is a presumption in favor of the natural parent which arises from a parent's "fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution" and is "rooted in the right to privacy." ... The parent's right to custody is not absolute, however.The presumption in favor of the parent will be overcome by "a showing of gross misconduct, unfitness, neglect, or 'exceptional circumstances' affecting the welfare of the child[.]" 

When a third party seeks custody, the court must engage in a two-step analysis. First, the court must determine whether the presumption in favor of the legal parent is overcome by either a showing of "unfitness" or "exceptional circumstances."
If either is satisfied, the court must then decide whether awarding custody to the third party would promote the best interests of the child. (Citations omitted).

The rights of a parent have constitutional implications.  As such, whenever they might be abridged, there is a heightened scrutiny that much be applied.

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Eric 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 practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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For more than a decade, we have known that biological parents have certain constitutional protections that help them defend against grandparents or other third parties seeking visitation with their children.  In fact, in New Jersey, because a fit parent has a fundamental constitutional right to autonomy in child-rearing decisions, a grandparent who seeks a visitation order must show that visitation is necessary
to avoid harm to the child.

Some times, however, someone other than the biological parents have custody of children.  Often these people assume the role of "psychological parent."  A psychological parent is essentially a person whom a child considers to be his or her parent, even though that individual may not be biologically related to the child. Does a psychological parent have the same constitutional protections as a biological parent when dealing with a request by a grandparent for visitation?  Yesterday, in the case of Tortorice v. Vanartsdalen, a reported (precedential) decision released by the Appellate Division, the answer to that question was no.

In this case, the litigation involved the maternal grandparent, who had custody and claimed to be the psychological grandparent and the paternal grandparents who sought greater visitation.  In this case, the maternal grandmother argued for the premise there is parity created between legal parent and psychological parent which provides the psychological parent with the constitutional protections
enjoyed by a legal parent as to third parties.  In so arguing, she was relying on a case involving the lesbian partner of a biological parent who was given parity.  The Court distinguished the relationship be finding that the partner was invited to the realm of family privacy such that that parent's right to autonomy is reduced by their own act.  This was not the case here, though interestingly, the court found that the psychological parent would now be in parity with the natural parents of the child (typically, because of constitutional considerations, natural parents have protections as to other parties as it relates to custody of children.)  In this case, the harm standard is not appropriate but rather, the best interest of the child standard must be used.

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Eric 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 practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

_______________________________________

Eric 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 practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Oftentimes, issues of custody and parenting time are the most difficult and sensitive decisions that a judge in the family part must make. It involves deliberation of the ever-elusive “best interests of the child” – a question with no right or wrong answers. While the standard is ostensibly subjective, there are certain guideposts that a judge must look to in order make the difficult determinations that come along with issues of custody. Those factors, as set forth in N.J.S.A. 9:2-4(c), include: 

1. The parents' ability to agree, communicate and cooperate in matters relating to the child;
2. The parents' willingness to accept custody and any history of unwillingness to allow visitation that is not based upon substantiated abuse;
3. The interactions and relationship of the child with its parents and siblings;
4. Any history of domestic violence;
5. The safety of the child and the safety of either parent from physical abuse by the other parent;
6. The preference of the child if the child is of sufficient age and capacity to reason so as to make an intelligent decision;
7. The needs of the child;
8. The stability of the home environment offered;
9. The quality and continuity of the child's education;
10. The fitness of the parents;
11. The geographical proximity of the parents' homes;
12. The extent and quality of the time spent with child prior to or subsequent to the separation;
13. The parents' employment responsibilities;
14. The age and number of children.

As can be seen in the recent case of Vidal v. Gelak (an unreported/non-precedential decision), when judges do not examine these all-important factors, their decisions face reversal and remand on appeal. 

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Mark Ashton, a partner in our Exton (Chester County) office, and former editor of our Pennsylvania Family Law Blog, wrote on interesting post entitled "The Tangled World of International Custody; The Hague Convention" that was recently published on that blog.

Mark's post discusses that the May 13 edition of the Wall Street Journal featured an article concerning the internationalization of the home buying market. Mark notes that as our global economy shrinks, people are buying homes in far off places as a matter of convenience and investment. Mark posits that easy access to international residences, however, can have unintended consequences as a May 13th interview with Mr. David Goldman demonstrates.

We have blogged in the past about Hague issues and the tragic story of the Goldman custody fight involving the abduction of his son, by David's former wife, to Brazil, and the efforts ta ht she and her family took to prevent the return of the child.

As reported in the New Jersey Law Journal, two weeks ago, a New Jersey law firm was found liable to the ex-husband of a former client for giving her the child's passport which was supposed to be held by her attorneys per a court order - allowing her to abscond with the child to Spain.  The jury awarded the father $950,000 with potentially more in legal fees to come.

In cases where there could be ties to other countries, some discussion should be had to determine whether safeguards need to be put into place. Safeguards are not required in every case, but where a client has some concern, discussions about passports and international travel may be warranted. 

In any event, as usual, Mark's post provides some interesting food for thought.

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As reported in today's New York Post by Kieran Crowley, a Long Island woman lost custody of her daughters after plastering stickers around town calling her estranged husband a Hummer driving dead-beat who let his kids go hungry.  Judge Carol MacKenzie reportedly found the mother's testimony that she knew nothing about this to be "incredible."  More importantly, the judge also found that the mother had tried to "brainwash" the kids by lying about their father. The mother also allegedly had friends of her picket the custody hearings.  Her denial of knowledge of this stunt was found to be "ludicrous" by the judge.  As a result of the conduct, the Post reports that Judge MacKenzie refused the mother's request to have more than two days with her daughters until she got the psychiatric help "which this court concludes she badly needs."

Unfortunately, disparagement of one parent during or after a divorce happens far too often.  Many consider this a act of parental alienation, a topic we have written about in the past.  In fact, based upon a prior blog that we did where a New York judge threw a parent in jail for custodial appearance, it appears that New York courts may take this more seriously than the courts that we practice in in New Jersey (though this is a small sample of comparison, I know).  That said, we have also recently blogged on how parenting alienation played a large role in the Dwyane Wade custody decision in Chicago.  There has even been talk about adding parental alienation to the next edition of the DSM.

The bottom line is that disparagement of the other parent and/or parental alienation is damaging to the children and their relationship with the other parent.  The offending parent's anger, if not hatred. for the other parent clouds their judgment and poisons their conduct to the detriment of the children.  As seen by this case, if taken seriously by the court, the penalties can be devastating to the offending party.  Why shouldn't they be.

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 It is well-settled law in New Jersey that prior to the relocation of a child from the this state by a custodial parent on a permanent basis, the parent first must formally request leave from the Court. The court will then examine the move under the factors set forth in the seminal case Baures v. Lewis, which guides the court's relocation inquiry. In Baures, the Court recognized three now-established legal principals:

1. The relocation standard is based upon a custodial parent’s right to seek happiness and fulfillment, which in turn, benefits the child.
2. Upon relocation, the non-custodial parent’s communication and exposure to the child must be sufficient to sustain that relationship.
3. Finally, the custodial parent must provide proof that the child would not suffer as a result of the move.

While Baures is proverbial gospel when it comes to relocation from the State of New Jersey, an interesting question arose in the Ocean County trial Court in McKinley v. Naters, which was approved for publication (binding opinion) on April 13, 2011. Namely, the McKinley case examined whether the court should grant a contested application for a temporary removal of a child to another state for “extended vacation purposes” prior to a formal relocation hearing under Baures?

The parties in McKinley were divorced on December 10, 2002. They share one child together, whom the Court referred to as H.M. At the time of the divorce, the parties agreed to share residential (physical) custody of H.M.

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A New Jersey trial court recently held in the published (precedential) decision of McKinley v. Naters that it was appropriate under a given set of circumstances to allow for the pre-trial, temporary removal of a child to another state for what it described as “extended vacation purposes” to provide the child with a “reasonable opportunity . . . to experience living in the proposed new state prior to trial.”  When I read the court’s conclusion, which is briefly laid out on the first page of the Opinion, my first thought was the seeming tactical advantage that would inure to the parent seeking removal.   After a full review of the court’s conclusions and rationale, however, it seems that the interests of both parties were properly balanced so as not to provide leverage to one party over the other.    

The facts are relatively straightforward for a removal scenario.  The parties divorced in 2002 and the settlement agreement provided for shared residential custody of the child.  In May 2010, Mom filed a motion seeking to permanently relocate to Florida with the child.  She claimed that she and her present spouse sought to relocate there for employment reasons, the child would have greater educational opportunities in Florida, and he would “enjoy life” more in Florida than in New Jersey.  Dad opposed Mom’s motion and sought residential custody of the child.

A plenary hearing was scheduled to occur in August 2010 and, in the interim, the parties could attempt to mediate and conduct discovery.  A psychological expert was appointed by the court to perform a custody evaluation.  In June, Mom filed a motion seeking the court’s permission to “temporarily remove” the child from New Jersey to Florida for 4 weeks for “extended vacation” purposes, and so the child could obtain a “feel” for the new neighborhood in Florida.  Dad opposed the request.  Not surprisingly, each party claimed that the other’s position was nothing more than an effort to obtain an advantage in the litigation.

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One of the most difficult concepts related to custody and parenting time issues is the “change in circumstances” concept when a modification of custody or parenting time is being sought. We have blogged many times on the legal analysis the Court must complete in determining a party’s request to modify custody and parenting time. Legally speaking, custodial arrangements and parenting time may be modified on a showing of a change in circumstances sufficient to warrant an adjustment in the best interest of the child. However, in every day life, there are always changed circumstances especially if you are a parent with growing children. After all, people do not live their lives like robots and do the same things day after day. This is what makes the concept difficult. It is difficult for parents, attorneys and even judges.

In the recent decision of the New Jersey Appellate Division Ferstenfeld v. Ferstenfeld, the appellate division found that the trial court entered an Order granting a father’s application for a modification of supervised parenting time on what the appellate division indicated was a mistaken assumption about the basis for the Order being modified. In the Fernstenfeld case, the father had supervised parenting time because he suffered from seizures and because his ability to care for the child were affected by his medical condition. After being seizure free for over a year, the father sought a modification of supervised parenting time asserting that being seizure free was a change in circumstances warranting review of parenting time. The mother opposed the application asserting that despite being seizure-free, the father was nonetheless incapable of caring for the child and sought an order modifying the joint custody designation to a sole custody designation. The trial court accepted the father’s argument and granted his request. The trial court did not address the mother’s request for sole custody. The appellate division found that the court should have also considered whether or not there was a change in the father’s capacity to care for the child, regardless of being seizure-free, warranting a relaxation of supervised parenting time or warranting a change between joint and sole custody.

Clearly, when analyzing whether or not a change of circumstance exists to warrant a review and modification of parenting time, the fact that one change of circumstance exists does not automatically permit a modification. All circumstances as existing at the time an Order is entered must be compared to the circumstances present at the time of the application. 

The change in circumstance concept is difficult not because it takes a rocket scientist to complete the analysis. It is difficult because people encounter changes in their lives constantly. In the context of a modification of custody and parenting time, the hard part is picking and choosing those change in circumstances to present to a Court that will warrant a modification in the best interest of the child.

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As a matrimonial lawyer, I often get the question "how old does a child have to be to decide who they get to live with?"  There is a perception out there that there is a magic age where a child is empowered to decide which parent they get to live with.  This simply is not the case. 

Rather, a child's preference is only one factor a court must consider when deciding custody.  Why is the child's preference not absolutely determinative?  Because it is not always reliable and may not be in their best interests.  Maybe the child is too young or too immature for their preference to be relied upon alone.  Maybe one parent is improperly influencing or pressuring a child to express a preference that is not their true preference.  Maybe the child feels bad for and/or feels the need to take care of the parent because of some physical or mental infirmity of the parent or a feeling that the parent is the victim of the other parent.  Perhaps the child has been promised something by the other parent or is trying to play one parent against the other.  Perhaps the child (maybe a teen) feels that the other parent will give them more freedom. 

This issue becomes even more difficult after an initial custody determination is made or agreed to and then a child expresses a preference to live with the other parent.  That was the issue in the unreported (non-precedential) decision in the case of Traynor n/k/a Dallara v. Traynor decided on March 29, 2011.  In this case, the father appealed the denial of his motion to change the custody of his 11 year old daughter who allegedly decided that she wanted to live with him.

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With the advancements in technology, one of the buzz words we have begun hearing about "virtual visitation."   In fact, recently, Julie Ganz, an associate in our Chester County, Pennsylvania office did a piece on our Pennsylvania Family Law Blog on "virtual visitation" and how it is being approved for use in a number of states.  Clearly, with cameras on computers, video chatting, Skype, Face Time on Apple products and the like, the quality of parenting time that a non-custodial parent can have with their children is improved.  Put another way, it seems that being able to actually see children, while not in person, and to have them see their parent, is still better then a phone call, email or text.

At least one court in New Jersey has followed the trend.  Specifically, in Margueron v. Baik an unreported Appellate Division opinion decided on March 21. 2011, a trial court's Order requiring the mother to cooperate with establishing a SKYPE account to enable the father to see and communicate with his child by way of the internet. was upheld.  The facts in the opinion are scant but what is known is that the father was returning to France.  The order also provided that father  have extended parenting time with the child in August each year, one additional week each year, and extended time at Christmas in alternate years. The Appellate Division held that "The judge crafted a schedule that allows communication between father and child that accounts for the geographical distance between them." 

While in this case, the issue was one of distance, the question remains as to whether distance should be a prerequisite to using the new technology, or whether it should be used in every case, no matter the distance.  A complaint, if not painfully sad lament from many non-custodial parents is that they used to get to see their children every day but now they can go days without "seeing" them.  While "virtual visitation" will unlikely ever be a replacement for the real thing, if available, why not use it?  We shall see what the court's do with this going forward.

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Last week, the news reported the decision in the custody case involving Miami Heat guard, Dwyane Wade's, children, after one of the longest custody trials ever in Cook County.  Apparently, a large part of Mr. Wade's decision to seek sole custody of his children was allegations regarding his wife's alienating behavior.  In the decision issued by Judge Renee G. Goldfarb, the Judge held:

This court finds that (Siohvaughn Wade) has embarked on an unstoppable and relentless pattern of conduct for over two years to alienate the children from their father, and lacks either the ability or the willingness to facilitate, let alone encourage, a close and continuing relationship between them.

We have previously blogged many times on issues regarding parental alienation.  Though I do not believe that it has yet occur ed, we discussed the movement to have "Parental Alienation Syndrome" included as a diagnoses in the new edition of the DSM. We have also discussed programs that deal with parental alienation as well as different cases addressing whether there can be tort liability for parental alienation.

What the Wade case shows is that when a parent embarks upon a course of conduct to alienate children from the other parent, and shows little desire, if not an utter inability to foster and encourage a relationship between the children and the other parent, that parent risks losing custody.  Parents divorce each other.  They don't divorce the children.  We cannot ignore the danger of harm to the children when a parent seeks to prevent or destroy the children's relationship with the other parent.  The research is clear that children need both parents in their life.  However, when a parent seeks to destroy the children's relationship with the other parent, they risk having their own time with the children limited in order to mitigate and/or prevent the opportunity for further damage being caused.

The results of parental alienation can be tragic.  It is encouraging to see a court take it seriously and spend sufficient time exploring the issue.

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One of the hardest questions to answer for a client is why a Court doesn't enforce their own Orders.  The next hardest questions to answer are if they found the other side in violation of litigant's rights, (1) why weren't there any real consequences for the violation of the order and (2) why didn't I get counsel fees.  The Court Rules suggest that a litigant is entitled to counsel fees if they are required to come to court to enforce an Order.  In addition, the court rules in the family part also include numerous provisions, including the imposition of monetary sanctions and counsel fees, for violation of a parenting time (visitation) Order. 

As such, it was interesting to see the unreported decision in the case of Friedman v. Friedman decided on March 7, 2011 wherein an awarded of sanctions for violating a parenting time order was affirmed by the Appellate Division.  In this case, the father asserted that the mother violated the parties' parenting schedule when she "signed both children out of school and drove them to [Virginia]." As a result, the father sought sanctions against the mother "for making unilateral changes" to the parenting schedule "and for failing to cooperate with the recommendations of the Parenting coordinator."  The trial judge found that  the mother violated the parties' parenting schedule and the recommendations of the parent coordinator by extending "the children's time with her, in Virginia."  As a result, the mother was ordered ordered to pay the father $500.00 as a sanction plus reimburse him for his costs to file and serve the motion.  The decision was based upon the court's finding that the mother had a history of failing to cooperate with the plaintiff.  In addition, the mother's request to relieve the current parent coordinator was denied.

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Previously, Sandra Fava, a contributor to this blog, did a piece on preparing for the initial divorce consultation with a lawyer.  The process, however, starts even before that.  On our web site, we have an advice piece entitled Preparing for the Divorce Process. 

Since it is linked to this post, I will not repeat everything contained in the piece.  However, the topics contained in that piece are as follows:

1. Speak to an attorney now, not later
2. Selecting the right attorney (including how to get referrals for an attorney)
3. Gathering documentation
4. Preparing for the initial meeting
5. Telling the truth
6. Keeping a diary; and
7. Trusting your attorney for legal advice (as opposed to friends, family members, co-workers, etc.)

Do I stay or do I go? This is not an easy question to answer. However, if you are even
contemplating a divorce, divorce planning (and not in the nefarious way that often goes with this phrase) is essential, especially in difficult economic times.  Divorce can be a long, highly charged, expensive process - emotionally and economically. Being prepared and keeping
perspective, at least as much as humanly possible, can help you save time and legal fees
while protecting your and your children's interests.

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 Previous blogs on this site have dealt with arbitration of various aspects of matrimonial disputes. N.H. v. H.H. is another in the developing law of arbitration of family law issues.   This article will deal with the subject of arbitration in the context of children issues, as the financial issues raised on appeal are less timely and more routine (as the law is well-developed in this area) as the issues relating to the children.

By way of background, the parties’ agreement in this case provided that they would be bound by the recommendations of an appointed psychologist who had been retained by them to conduct a custody evaluation and to render written report. Their agreement articulated that they desired this procedure in order to avoid “ . . . lengthy, protracted and divisive litigation over custody and parenting time issues . . .” In such posture, they agreed “. . . to be bound and to abide by the recommendations set forth in [the psychologist’s] report and to implement said recommendations immediately upon receipt of [the] report.”

The foregoing agreement came about in the context of the alternative dispute resolution method known as mediation in which the parties had first engaged the services of an extraordinarily well-respected former judge who had extensive experience in both the Family Part and the Appellate Division in reconciliation, but then switched his role to one of mediator.

After his investigation, the psychologist rendered a ninety-three page evaluation. In viewing the report, the Appellate Division went on for pages to describe in excruciating detail the methodology employed by the psychologist. The parties, the mediator, and the psychologist thereafter met to discuss the report. During that meeting, additional events concerning the issue of the wife’s consumption of alcohol in front of the children came to light. Thereafter, the psychologist supplemented his report in which he opined that the wife was in need of inpatient treatment, and recommended supervised parenting time with the children.

In response, the wife sought a judicial determination whereby the court would adopt the psychologist’s initial report, but reject the supplemental report. That application was denied by the court, effectively leaving both reports intact. Thereafter, the husband requested a determination that the agreement was enforceable and sought economic relief, and the wife cross-moved for various forms of relief including setting aside the agreement. Upon consideration, the court denied her application relative to the economic aspects of the agreement, but granted her request to set aside the custody and parenting provisions.

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Being a divorced parent and attempting to relocate to another state can be a difficult proposition.  N.J.S.A. 9:2-2 provides that children cannot be removed from the state without the consent of both parents unless the court otherwise orders. The statute’s intent is to preserve the rights of the noncustodial parent and to ensure that children are able to maintain their familial relationship.  Although the statute is stated simply enough, the process of relocating without the consent of the noncustodial parent can be extremely trying as evidenced in a recent published New Jersey Supreme Court decision, Morgan v. Morgan (n/k/a Leary).

In Morgan, the Court reviewed a decision denying a divorced mother’s request to move with her children to another state after the children’s father objected to the relocation.  These parties were married for 13 years and had two children when they divorced in 2005.   The final judgment of divorce incorporated the couple’s Property Settlement Agreement (PSA), which provided for joint legal custody of the children and which indicated that mom would be the party of primary residence. Under the PSA, dad would have the children alternate weekends, every Tuesday evening, every Thursday night until Friday morning, and for two weeks of vacation.

In late 2005, in anticipation of an application by mom to move with the children to Massachusetts, dad filed a motion seeking a re-determination of custody based on “a substantial change in circumstances.” He contended that he should be designated the parent of primary residence because he saw the children more than the PSA provided and was very involved in their school and recreational activities. Mom opposed this motion and filed a cross-motion seeking permission to move with their children to Massachusetts or, alternatively, a plenary hearing. In support of her request to relocate, mom pointed to the fact that Massachusetts is her home state; her entire family resides there; she was by then engaged to a Massachusetts resident; that her marriage would enable her to forego employment and become a “stay-at-home” mother; and that the PSA was not based on her promise to remain in New Jersey.  As a result of these filings, a plenary hearing was held with both sides presenting fact and expert witnesses.

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Julia Ganz, an associate in our Exton, Pennsylvania office, and a contributor the firm's Pennsylvania Family Law blog, wrote an interesting post on that blog entitled "Virtual Visitation."

The post talks about how technology can be used to enhance, if not foster parenting time between children and the non-custodial parent.  With the advent and improvement of web cams, Skype and other methods, there are more options than ever. The new Iphone allows for video calling.  In fact, technology such as this can often be used as a method of maintaining contact in relocation cases (while no one is suggesting that it is the same and actual, in person parenting time.)  Julie's post discusses cases from a few jurisdictions which required the use of this type of technology is such case. 

While particularly useful in relocation cases, it is not hard to imagine that the use of this technology will become more prevalent even when both parents live close by.  With that, there will probably be disputes over this well, how much is too much, too often, etc. Stay tuned.

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Following on the heels of Eric Solotoff's recent blog entry addressing the use of parenting coordinators, a new published (precedential) decision from the Appellate Division talks about grievances against parenting coordinators, parenting coordinator fees, and the need for a plenary hearing to address such issues.  In Segal v. Lynch, the Appellate Division addressed these issues in the context of a long, acrimonious history of events simply regarding the parenting coordinator's involvement in the highly contentious matter.

Soon after the trial court appointed the parenting coordinator pursuant to the Parenting Coordinator Pilot Program, the plaintiff called for the coordinators removal from the matter because the coordinator had contacted the trial judge to clarify the terms of an order.  In response to the plaintiff's indication that he would file a motion to have her recused, the coordinator pointed plaintiff to the Grievance Procedure outlined in the Pilot Program Guidelines, which required that plaintiff specifically outline his grievances to the coordinator before notifying the trial court.  A major issue of contention at both the trial level and on appeal was the parenting coordinator's indication that she would charge the plaintiff for her time taken to respond to his numerous grievances. 

After the grievances could not be resolved, the plaintiff submitted his grievance letter to the trial judge, who issued an Order to Show Cause why the coordinator should not continue in the matter and why plaintiff should not pay the coordinator's fees owed.  The trial judge ultimately found for the coordinator, concluding that the plaintiff's grievances were without merit and that the coordinator herself had acted "professionally and admirably" under very difficult circumstances.

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Mark Ashton, a partner in our Exton, Pennsylvania office, and a contributor the firm's Pennsylvania Family Law blog, wrote an interesting post on that blog entitled "Is Parent Coordination for You?"

Parent Coordinators in New Jersey are nothing new and have been an arrow in the quiver of judges for years to address high conflict divorce cases. I have blogged about the use of parent coordinators and the use of other professionals to assist with custody and parenting issues in high conflict divorces before and they prove a use way to avoid litigation for issues that either require an immediate resolution and/or for issues that require some other way to address the complexities.  I recently had a parent coordinate involved overseeing things in a case where there were some serious mental health issues as to one of the parents, as well as medical issues related to a child.  The parent coordinator was able to gather and distill information and make recommendations.

Parent coordination is not a panacea and not a replacement for a judge.  Judges cannot abdicate their judicial decision making duty nor can they send enforcement issues to a PC.  In fact, that was something that the Appellate Division reiterated in my case of Parish v. Parish which was a reported decision (which we previously blogged about.)

In any event, Mark's blog gives us another perspective of the types of issues you might want to use a PC for and some of the upsides and downsides of doing so.

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Recently, on a miserable cold day, my husband and son were watching a marathon of the original “Twighlight Zone” series. For those of you who may not know, this was Rod Serling’s popular science fiction series that ran from 1959-1964. I walked into the room just as the episode “ The Bewitchin’ Pool” episode was beginning. The episode begins as the family is sitting outside by their in ground pool with the parents dropping that they are getting a divorce, and, in  angry voices, mom and dad tell the children that they have to decide who they want to live with. The fact that the children then jump into the pool and travel through a magical portal and meet a kindly old woman is not relevant to this story.

What is relevant is the next day, Monday, I came into work to a message from a client as to the interaction that had occurred with children of my client. And I realize that sadly, parents in a divorce have not evolved for the better in the 47 years that have passed since the episode aired. My client had informed be that in the midst of a rage, his spouse had told the kids that she had never liked their father, they were getting a divorce, and who do you want to live with? At that point I felt as if I was the one swimming underwater.

Just stop it. The answer is easy. The child or children want to live with both parents. They do not want to move from their house, and they want to have dinner with both parents at the table. And most of all, the kids do not want to feel that they are the ones who have to make the decision of who to live with. With all due respect to the many talented Ph D’s in child psychology that I work with regularly, it doesn’t take a rocket scientist to figure this out.

So what to do? Keep your children out of it! If they ask, let them know that you as parents, with help from the judge, will decide what is best for them. If they have to go through a custody evaluation and meet with someone, just tell them that that person is going to ask them things about what they like, and what they do during the day, and that they do not have to choose. And make sure they know that no matter what happens, you will both love them. Judges and custody evaluators are smart; they clearly know when a child has been coached, and in addition to being unfair to the child, all that coaching is going to do is look bad on the parent who does it. If one parent is acting poorly, don’t rise to the challenge; rise above it. Maybe not now, but at the end of the road, the kids are going to know which parent was the one who acted fairly, and which one did not.

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Visiting a divorce attorney for an initial consultation can be a difficult and intimidating proposition.  For some, it is the realization that their marriage may be over.  For others, it is simply the discussion of such deeply personal matters with a stranger.

Nerves or trepidation aside, the main purpose of the initial consultation is to learn about the process and understand what your rights and obligations could be.  The law is never black and white but has many shades of gray.  A good consultation will explain the black and white and touch upon the relevant areas of gray. 

The initial consultation is also important because this process lets you interview your potential counsel.  Not only is it important that you find the attorney you plan to hire to be competent and best able to represent your interests, but its important that you also like your potential counsel.  Sounds trivial but keep in mind that your divorce lawyer is someone who is quickly going to learn the good and the bad of you and your most personal relationship, your marriage.  Secrets aren't helpful and a level of trust is required.

So what can you do to make sure you get the most out of this initial consultation and at the same time provide counsel the relevant and important information needed?  Here are some suggestions:

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Last year, in the Fawzy decision, the New Jersey Supreme Court put procedures in place approving parents' ability to arbitrate child custody opinion.  This specifics of this decision was the subject of a prior blog at the time of the decision.  One of the procedural safeguards required by Fawzy was a verbatim record of the proceedings so that there could be meaningful review of the decision by a court.  Yesterday, the Supreme Court revisited this issue in the case of Johnson v. Johnson.  In May of this year, I previously blogged about this case though at that time, we all thought that the bigger issue for the court's consideration was whether Fawzy could be retroactively applied.

In Johnson, there was no verbatim record as was required by Fawzy, for the simply reason that the parties had agreed that there was not going to be a verbatim record.  They did, however, agree that the arbitrator would provide detailed findings of fact.  In fact, the arbitrator did provide extremely detailed findings both in the initial opinion and upon a motion for reconsideration.  After Fawzy was decided, an appeal ensued and the arbitration award was set aside for no verbatim record. 

The Supreme Court in Johnson started by reminding us of what Fawzy requires with regard to an agreement to arbitrate:

must be in writing or recorded in accordance with the requirements of N.J.S.A. 2A:23B-1.
In addition, it must state in clear and unmistakable language: (1) that the parties
understand their entitlement to a judicial adjudication of their dispute and are
willing to waive that right; (2) that the parties are aware of the limited circumstances under which a challenge to the arbitration award may be advanced and agree
to those limitations; (3) that the parties have had sufficient time to consider the
implications of their decision to arbitrate; and (4) that the parties have entered into
the arbitration agreement freely and voluntarily, after due consideration of the
consequences of doing so.

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War of the Roses style divorces do not just involved money.  Very often, they involve disputes regarding the children, pick up and drop off, inflexibility regarding changes to schedules, etc.  Is the proper remedy to reduce the amount of parenting time one party has to reduce the exchanges and thus reduce the change for conflict? As noted in the unreported (non-precedential) opinion in the case of Weiss v. Weiss, decided on November 24, 2010, one trial court said yes - the Appellate Division said no.  The Court reaffirmed that parenting time cannot be modified without a plenary hearing.

In this case, during the divorce, the parties had a noted child custody expert conduct a custody evaluation which was implemented, as were post divorce recommendations by that expert.  Apparently, due to the high conflict in the case, there was also a parent coordinator involved.  The expert had crafted a schedule such that the children never went more than 4 days without seeing their father. 

However, much conflict continued and much post-judgment litigation ensued.  The mother, who the father alleged was causing the problems, asked that the court change the parenting schedule causing a reduction in the parenting time the father enjoyed.  This reduction was contradictory to the expert's opinion and was not recommended by the parent coordinator either.

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We have blogged about the issue of relocation (removal) with children after a divorce and the standards that a court must follow.  To see our prior posts, click here, here and here.  The considerations are different if the parties have a truly shared parenting plan or if the non-custodial parent has something less than 50-50.  In the latter instance, the move must be made in good faith and not inimical to the child(rens) best interests (and there are numerous factors set forth in the Baures v. Lewis case that a court must consider. For true shared parenting cases, moves are more difficult because a more stringent best interests analysis is employed. On top of that, it is not enough that the parties designate their arrangement as joint or shared custody, the case law post-Baures made clear that it was the actual parenting time that mattered not what the parties described to to be.

Against that backdrop, we turn to the unreported (non-precedential) Appellate Division in the case of Walsh-Morales v. Morales decided on November 5, 2010.  In this case, post-divorce, the mother sought to re-marry and move to Texas with the parties' daughter.  The father moved to bar the move, seeking sole custody if the mother moved.  The mother asserted that she was the primary residential parent- the father asserted that there was true shared parenting.

The trial court determined that there was true shared parenting, denied the mother's request to relocate and directed that the father be the primary parent if the mother moved.  The mother appealed not necessarily as to the law applied, but rather, as to the factual determination that the parties had true shared parenting.

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Mark Ashton, a partner in our Exton, Pennsylvania office, and a contributor the firm's Pennsylvania Family Law blog, wrote a thought provoking post on that blog entitled "Revenge of the Fourteen Year Olds"  To read that post, click here.

In Mark's thought provoking piece, he discusses an unusual trend he has seen of empowering a teenager so is in conflict with a parent during a divorce.  Specifically, where a child states that they don't want to see the non-custodial parent anymore.

The key in these cases, if possible, is to try to get to the genesis of the problem.  Is this a situation where a teenager, who is understandably upset, is also using this to manipulate one or both parents to get what they want?  Is it a situation where the custodial parent is upset and the child knows or perceives that the custodial parent will be upset if the child maintains a relationship with the other parent?  Is the custodial parent bad mouthing the other parent to or in front of the child?  Worse yet, is the custodial parent actively and intentionally alienating the child against the other parent (some of the prior things, while intentional and inappropriate acts, may be done without any improper motive) ? 

In any event, the trend Mark describes is troubling and must be handled carefully, but with a focus on repairing the relationship, no matter what the genesis of the troubles.

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This post was written by Jessica Goldberg, a new associate in the Family Law Practice Group in the Roseland office and also, a new contributor to this blog.

The recent Appellate Division’s decision in Dunn v. Willis, although unpublished and therefore not precedential, brings up some interesting issues regarding custody disputes. First, it is important to note that when a judge is asked to consider a change in custody, that judge must first find that there has been a change in circumstances warranting further proceedings. In Dunn v. Willis the Judge concluded that the mother, who was seeking custody of her son, had failed to show the necessary changed circumstances. The Appellate Division agreed with the Family Court Judge and within its’ decision a warning can be construed about the dangers of too often involving the Court in family matters.

The history of this case is as follows: Mom, unmarried, had an alcohol abuse problem and although she had stopped drinking by November 2002, she was participating in an inpatient rehabilitation program and the Division of Youth and Family Services was involved with the family. In January 2003 the Court entered a consent order, signed by mom, the child’s maternal grandparents, and the child’s paternal grandparents. This consent order gave custody to the maternal grandparents and visitation rights to the paternal grandparents with the condition that the child’s father not be present during their visitation time. In August of 2003 mom was awarded parenting time with her child. In 2004 mom’s stability begins to become apparent – she is out of rehab, she has a full-time job and she has bought a home near the child’s school. In October 2004 mom makes a motion for a change in custody, but the Court denies this motion. In May 2007 mom gets a bachelors degree in nursing. In December 2007 the Court enters an order increasing mom’s parenting time, however, the Court again denies mom custody. Finally, in April of 2008 mom is awarded joint legal custody with her parents, the child’s maternal grandparents. Another order is entered in June 2008 restricting mom from making unilateral decisions without approval from her parents with whom she shares custody.

Then, in June 2009, mom files a motion, now the subject of this Appellate decision, to obtain custody of her son. By this time mom is working full-time as a nurse and is about to receive her Masters Degree in nursing. Her relationship with the child’s father has improved to the point where they are communicating and the child is building a relationship with his father and the father’s younger son. During this entire time the child has lived with his maternal grandparents and an older half-sister, however, the half-sister is now going off to college and mom asserts that the child, now eleven years old, wants to live with her. The Court, however, denies mom’s request to interview the child or appoint an expert to evaluate whether a change would be in the child’s best interest. The Court denies mom’s motion on the grounds that mom has failed to show the necessary changed circumstances.

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In an interesting unreported (non-precedential) decision released on October 13, 2010, the Appellate Division held that it was error to dismiss a case simply because a litigant was not ready to proceed on the date of a final hearing because they sought their own expert in a custody matter. 

In McCain v. Schultz the court, which had a detailed if not convoluted procedural history that delayed the matter somewhat, the court had appointed a custody expert to prepare a report.  When the report came in about 3 weeks before the final hearing date, the father's lawyer wrote to the Court requesting an adjournment so that the father can obtain his own expert, as is his right under the Rules of Court.  The mother opposed the request allegedly given the age of the matter (but probably because the report was favorable to her position).  Rather than adjourn the matter, citing "rules" regarding timing for completion of "non-dissolution" (typically family court matters regarding custody or support between unmarried litigants) matters, the judge dismissed the matter without prejudice.  This appeal ensued.

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I suspect that anyone that read my last blog might think that I am against shared custody or that I believe it to be impossible.  That is not the case.  Rather, my point in that post was to address possibly bad faith requests for joint custody by those people who have historically neither spent a lot of time with the children nor did much of the actual parenting.

But shared parenting time is not an impossibility.  Supposedly, it requires parents who have the ability to communicate and cooperate.  That said, I have seen parents who cannot have a civil word with each other effectively co-parent. 

Shared parenting, by New Jersey standards, is anything between 28% (104 overnights) and 50% of the overnights with the children.  Curiously, these definitions actually stem from the child support guidelines.  When the newest iteration of the Guidelines came into being in 1997 or 1998, they had two different worksheets - a sole parenting worksheet and a shared parenting worksheet (104 overnights and over).  While non-custodial parents now got child support reductions with each overnight, the credit was greater using a shared parenting worksheet. As a result of the new guidelines, negotiations over additional overnights began, in many cases for obvious reasons.

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Picture this scenario.  Parties are married - perhaps even happily - for 14  years.  They have three kids - 12, 10 and 6.  Wife has been a stay at home parent for the last 12 years. Husband is the Type A, master of the universe, over achiever type.  He works in New York City, leaving the house at 6 am and coming home at 7 p.m. The wife took the children to most of their medical and dental appointments, most of the play dates, most of the activities, attended most of the school events, etc.  Maybe the husband went to some, maybe he didn't.  Maybe the husband played his golf or tennis on the weekends - maybe he was part of the suburban shuttle taking the kids to the vast myriad of activities and sports kids are involved in - or both.  In very much of a traditional marriage, the wife was responsible for the kids and the house and the husband was responsible for making the money.  This is not meant to be a social commentary - just a description about how the parties divided the labor and defined their roles in the marriage. 

Fast forward - now the parties are getting a divorce.  A discussion of custody and parenting time has to be had.  One would be surprised about how many times I have seen the husband in these matters demanding 50-50 shared parenting with the kids, almost as if the historical status quo never happened. All too often, this demand is coupled with an attack on the wife's mental health and/or parenting abilities.  This of course leads to the obvious question - if she was so crazy/unstable/incompetent, etc. why did you leave the children in her care for the last X years?

This is not to say that shared parenting is presumptively not reasonable or in the children's best interests. But what is the genesis of the request.  Is it power, control, the desire to pay less child support, the desire to hurt the spouse for having the audacity to divorce them?  Is it a sincere belief that this is what is best for the children, whether it is or not?  Is it a combination of a realization of the time lost with the children in the past coupled with a fear of losing them completely?  Is it revisionist history and/or an exaggerated or grandiose belief regarding the person's actual involvement in the historical parenting of the children?  It is probably an amalgam of many of these things. 

The first question to ask is can the parent actually exercise the time that he is seeking?  If not, the resolution is easy.  Often in the cases, I have seen the parties go through stressful and expensive custody evaluations, with the obvious result - i.e. that the mother is recommended to be the primary custodial parent.  Custody then settles rapidly after that - with the father able to save face and say "I tried." 

That said, I have seen many parents become more involved parents after the divorce.  Maybe this was done for all of the wrong reasons.  Funny thing is that despite the reason, if their relationship with the children strengthens and their involvement increases, that may not be a bad thing either.

This blog is not meant to perpetuate stereotypes or dissuade good faith custody disputes. In fact, I have represented many fathers and have been successful in obtaining custody or shared parenting of some type for them.  On the other hand, before putting your children through a custody evaluation (or several if both parties get their own experts) and spending tens of thousands of dollars on the process, people should think long and hard about what they really want and what is really best for the children. 

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We have numerous prior blogs about the “changed circumstances” analysis employed by the Court in determining whether there should be a change in custody from one parent to the other. However, sometimes, litigants misunderstand the “changed circumstances” concept. Litigants often make the mistake of assuming that personal improvements in their lives will bring about a change in custody. However, the focus is not always on the “changed circumstances” of the parent but whether or not there are “changed circumstances” as to the welfare of the children to warrant a review and trial of the custody arrangements and whether such changed circumstances call for a change in custody. 

Recently, in the unpublished decision of Fischer v. Fischer, a recovered substance abuser incorrectly assumed that she was entitled to a custody trial and to a transfer of custody because she was a recovered drug addict and because she improved her financial circumstances. The Fischer litigation commenced when the mother of two children voluntarily transferred custody to the father as a result of her drug addiction. During the next four years, the mother filed applications with the Court seeking a change in custody. Ten months after father obtained custody, mother filed an application seeking a change in custody presumably because at that point she was drug free. At that point the Court found that no changed circumstances existed “as to the welfare of the children”.   Five months later, she filed another application for a change in custody which was also denied because the Court was “not satisfied that [the mother] demonstrated significant changed circumstances to warrant a change in custody”. Approximately sixteen months later, again the mother filed an application on the basis that her circumstances had changed because she was then drug-free and because her financial circumstances improved allowing her to be a stay-at-home mom. Again her application was denied and the mother filed an appeal.

The Appellate Court found that first, there was no change in circumstances as to the welfare of the children and second because there was no changed circumstances, the mother was not entitled to a custody trial. Specifically, the Appellate Court stated “Defendant’s life and circumstances have happily changed for the better, but that alone does not suffice given that the children have resided with [the father] for several years.” The mother’s changed circumstances were not enough to warrant a review of custody or a custody change because the children were doing well with the father and none of the changes alleged related to the children’s welfare. 

Litigants should always ask themselves before proceeding with a request for a change in custody if the “changed circumstances” relates to the welfare of the children. In order to get to a custody trial and prevail on a custody change, the answer must be in the affirmative.  Otherwise, the application will likely be denied.

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New Jersey adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in 2004, replacing the Uniform Child Custody Jurisdiction Act (UCCJA) in an effort to facilitate cooperation between courts of other states to ensure that the state best able to decide a given custody matter actually makes that decision.  The UCCJEA was recently at the forefront in Dalessio v. Gallagher and Jacobs, a new reported (precedential) decision from the Appellate Division.

To ensure that the state most capable of deciding a custody matter has jurisdiction to hear the case, the UCCJEA gives priority to the "home state."  The statute provides as to the "home state" definition:

a.  . . . [A] court of this State has jurisdiction to make an initial child custody determination only if:

(1)  this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

(2)  a court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction . . . and:  (a)  the child and the child's parents, or the child and at least one parent . . . have a significant connection with this State other than mere physical presence; and (b) substantial evidence is available in this State concerning the child's care, protection, training and personal relationships[.]

b.  Subsection a. of this section is the exclusive jurisdiction basis for making a child custody determination by a court of this State.

The "home state" is defined by the New Jersey law as "the state in which a child lived with a parent or person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding." 

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The following entry was prepared by Eliana Baer, an associate in our Princeton office.

We previously blogged on the United States Supreme Court’s decision in Abbott v. Abbott, which addressed the meaning of the “right of custody” under the Hague convention. There, the Supreme Court reversed the decision of the Court of Appeals for the Fifth Circuit to the extent that it ruled that it a noncustodial father who had regular visitation rights with his child, shared in the right to determine the child’s residence, which constituted a right of custody under the Hague Convention sufficient to invoke enforcement under the Hague. As to the issue of the child’s removal over international borders, however, the Supreme Court the Court did not automatically order the child’s return to Chile. Rather, the Court remanded the for a determination by the trial court. Parents from New Jersey and other states are put in similar situations on a daily basis trying to have their children returned to them from foreign nations.

One such recent case is Fuentes v. Fuentes which arose under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"), which is a statute that determines jurisdiction in custody disputes. In Fuentes, the Father, a United States citizen, appealed from a Family Part order that registered an order of the Venezuelan Court, obtained by the Mother, a Venezuelan citizen, and ordered her to return the parties' son, born in the United States, to Venezuela. The Mother, who was born in Columbia, and Father, a citizen of Venezuela, were married in New Jersey in June 2003. Unbeknownst to the Mother, however, at the time of the parties’ marriage, the father was still married to another woman. The parties’ son was born in September 2003. Approximately three months later, they moved to Venezuela with their child so that the Father could operate a business he owned there. Both parties maintained that the move was temporary.

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On June 28, 2010, the Appellate Division released the unreported (non-precedential) opinion in the case of "O.R. v. H.S."  In this case, the Appellate Division reversed the trial court's Order, rendered without a plenary hearing and where there were disputed facts, granting the defendant joint legal custody. 

In this case, the parties were never married. While the plaintiff was pregnant with the parties' child, she obtained a domestic violence final restraining order against the defendant.  Four years had passed and the parties were now in court dealing with emergent custody and parenting time issues.  The defendant's attorney requested that joint legal custody be ordered and plaintiff's attorney objected, contradicting defendant's account of his support of the child and noting defendant's history of drug use.  Plaintiff also noted the FRO, her fear of the defendant and that defendant presented no proof regarding his relationship with the child.  Notwithstanding, the Court issued an Order granting the parties joint legal custody and designating the plaintiff the parent of primary residence.

Plaintiff appealed and the Appellate Division reversed noting that a decision like this, where there was contradictory information presented, required a plenary (evidentiary) hearing.  The Appellate Division also noted that the parties' relationship had been strained for year, as noted by the FRO, and that along with the FRO goes a presumption in favor of awarding custody to the non-abusive parent.  In addition, the Court noted that the plaintiff's fear as well as the defendant's drug use need to be considered at the hearing. 

This case reminds us of two things.  First, court's cannot decide major issues without having plenary hearings if there are material facts in dispute.  Second, court's must be mindful of findings of domestic violence when addressing the issue of custody, including legal custody, considering the statutory presumption of custody favoring the non-abusive parent.  Fundamental to the notion of joint legal custody is the parties' ability to communicate and cooperate which is why a review of the history of domestic violence is so important.

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In today's New York Post there was an article about a Long Island woman getting jail time for her repeated interference with her ex-husband's time with the parties' children.

The article describes how the woman tried to keep the father and his daughters apart for weeks at a time and that she even falsely alleged that he groped one of his daughters.  The story goes on to say how the mother went on expletive filled tirades about the father in front of the children.  Further, she often scheduled last minute trips and events meant to frustrate parenting time.  The father was forced to either consent to not disappoint the girls and when he did not, she would berate him.  The judges stated that she. "... is a vengeful roadblock, the barbed wire standing in the way of her two daughters and their desperate dad."

All of the above acts are very typical acts of parental alienation.  In the past we have blogged about programs dealing with parental alienation and the fact that there is some consideration to adding parental alienation as a diagnosis to the next DSM.  Parental alienation syndrome is a very polarizing term because the person who coined the phrase, Dr. Richard Gardner, was self-published and the scientific bases to his conclusions were questioned.   His proposed remedies to alienation were also severe and there were a few notorious cases where his recommendations were followed by tragic results.  On the other hand, there is more and more research about parental alienation and its insidious effects.  The alleged conduct of the mother above contains some classic alienating behavior.

But what is the remedy.  We have recently blogged that the NJ Appellate Division rejected tort damages for emotional distress as a remedy. in most cases.  There are criminal statutes to prevent interference with custody orders but, anecdotally, they rarely seem to be used.  Similarly, there are court rules allowing for sanctions for interference with parenting time.  However, all too often, this becomes a he said/she said situation and court's rarely hold hearings to get to the bottom of this much less impose sanctions.  In fact, often this kind of conduct results in the appointment of a parent coordinator, often adding another level of costs even though the Appellate Division, the the recent reported case Parish v. Parish (which was my case) has made clear that parent coordinators should not be dealing with enforcement issues. 

While jail is a drastic remedy and probably not appropriate in all cases, it is refreshing to see that a judge got tough with repeated custodial interference.  Perhaps this will serve as a deterrent to others, but probably not because many people who do this feel justified and/or believe that they are protecting their children.  We can only hope. 

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The following blog has been written by Eliana Baer, an associate of the firm resident in our Princeton office.

In our increasingly mobile society, it is no surprise that the issue of international child abduction has emerged as one of the new “hot topics” in family law.  On May 17, 2010, the United States Supreme Court issued an opinion in Abbott v. Abbott, involving different aspects of international abduction and custody. Sandra Fava, an associate in our Roseland office previously blogged about this case.

In Abbott, Timothy Abbott, a British citizen, and Jacquelyn Abbott, an American citizen, obtained a divorce in the Chilean courts.  Mrs. Abbott was awarded custody of their son, and Mr. Abbott was awarded visitation rights. At Mrs. Abbott's request, the Chilean court entered an order prohibiting the child's removal from Chile by either party without prior mutual consent. When about one year later, Mrs. Abbott removed the child to Texas without Mr. Abbott's consent, Mr. Abbott filed suit in the Federal District Court in Texas, seeking an order requiring his son’s return to Chile under the Hague Convention on the Civil Aspects of International Child Abduction (Chile and the United States are signatories to the Hangue Convention). The district court held that the child's removal did not constitute a breach of the father's "rights of custody" as defined by the Hague convention. The U.S. Circuit Court of Appeals for the Fifth Circuit affirmed and an appeal was taken to the Supreme Court of the United States.

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Aaron Weems is an attorney in our Warrington (Bucks County), Pennsylvania office and editor of the firm's Pennsylvania Family Law Blog wrote an excellent post entitled  Social Media Evidence.  We have blogged about the use of evidence from social networking sites on this blog in the recent past.  We have also noted news stories on this topic.

Aaron's topical posts discusses how evidence from social media sites turns up in family court.  We have used posts on Facebook, MySpace, LinkedIn and other places, as well as emails, text messages for different purposes in our case. 

People must remember that what they put on the internet may be there forever.  People must also be careful about the types of things that they put in emails and texts, where the detachment may allow people to be more bold in their statements.  Moreover, as was a problem in a recent case, while the client did not have a Facebook account, his girlfriend did and she did not hesitate to post the details about her relationship.  Needless to say, that enraged his wife and made her disbelieve many things that he said. 

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The Supreme Court has granted certification and will hear argument in the case of Johnson v. Johnson.    In essence the Supreme Court has agreed to decide whether retroactive application is warranted of its ruling in Fawzy v. Fawzy  that parents can arbitrate child custody issues if a thorough record is kept. We have blogged on the Fawzy decision in the past.

In Johnson, the Appellate Division held that Fawzy v. Fawzy, 199 N.J. 456 (2009), should be given pipeline retroactivity "where it will serve the interests of justice by permitting currently litigating parties to resolve their claims on the merits."   However, they would not apply the ruling to all previously arbitrated cases because "... application of full retroactivity risks sig­nificantly and negatively impacting the administration of jus­tice by inundating the courts with motions for vacation of arbi­tration awards regarding child-custody and parenting-time issues that resulted from procedures deviating from those outlined in Fawzy, ... yet which had been reasonably satisfactory to the parents."

When the matter is decided, we will report back.

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The online edition of today's New York Post reported that Tiger Woods and his wife Elin have resolved the issue of custody.

The details were not really set forth in the story nor are they really important.  Assuming all that has been reported on is true (and quite frankly if even if only some of it were true), if there is ever a spouse that had a right to be really mad it is Elin Nordegren.  Yet even these people were seemingly able to put aside the anger, lack of trust, resentment, etc. that is likely to exist to do what is best for their children.  From all accounts, it does not appear that the children were used as pawns. 

So if this story is try, these people should be commended and serve as an example to others (at least as to this issue and maybe golf) on how to put aside the emotional issues surrounding a breakup and potential divorce and put the children first. 

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After a Parenting Time/Visitation Order is entered, as time goes, often there are variations in the parenting schedule.  For example, the children's activities or a parent's work schedule may warrant modifications of parenting time between the parties.  It is often mistaken that such variations may be enough to return to Court and obtain a switch in custodial parents.  While true that a variation of the schedule may be considered a "changed circumstance", such variations may not be significant enough to warrant a change in custody.

In the recent unpublished Appellate Division decision of Picone v. LoSapio, the mother mistakenly assumed that because there were variations in parenting time and an increase of her time as compared to the actual schedule in the Court Order, the Court would award her custody of the children.  At the time of the parties' Final Judgment of Divorce, the mother was awarded extensive parenting time with the children albeit the father had more parenting time and was designated as the Parent of Primary Residence.  After the Order was entered, by agreement of the parties, mother's parenting time increased.  Mother then filed an application with the Court arguing that she spent 51% of the time with the children and therefore she should be designated as the Parent of Primary Residence.  Notably, the Trial Court sensed that the mother was placing way too much significance in counting the time she spent with the children noting that she "appears to be inordinately fixated on the time that she is spending with the [children], as if it has become an agenda in itself.  This very fixation on the amount of time spent with the children, to the exclusion of all else, is the primary focus of the Court in rejecting her application, and denying even a plenary hearing at the time".  The mother appealed the Trial Court's denial.  However, the Appellate Division agreed with the Trial Court's findings and found that the mother had not met her burden that there exists a 'substantial' change in circumstances that affect the welfare of the children."

The moral of the story is that counting every minute with the children and comparing the minutes the children spend with the other parent does not necessarily get you points towards an award of custody.  In fact, doing so, may backfire on you.  In every application for a change in custody on the basis of a change in the parenting schedule, there must still be a showing of substantial changed circumstances and the focus is as the Appellate Division noted in Picone v. LoSapio whether the "increase of ...parenting time affects the children's safety, happiness, or welfare."

EDITOR'S NOTES:  While the Appellate Division was critical in the counting of the days, the number of overnights may be relevant for at least two reasons.  First, the number of overnights is considered in the child support guidelines.  The person who has more than 50% is deemed the parent of primary residence.  This could significantly impact support.  In addition, pursuant to the case law, even where there is joint legal custody (decision making), in the case of a deadlock, the presumption of the final say usually goes to the primary custodial parent.  ERIC S. SOLOTOFF

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Previously, we blogged about a trial court opinion that allowed a parent to seek damages for interference with custody/parental alienation.  In fact, we noted the conflicting trial court opinions released in the last year or so, one of which (in Hudson County) allowed a suit for intentional infliction of emotional distress in these matters, and another (in Morris County) which denied this relief for failing to state a claim.The Appellate Division weighed in on the Morris County case on May 3, 2010, affirming Judge Rand's decision to dismiss the case in Segal v. Lynch.  This was a reported, thus precedential opinion.

While rejecting the trial court's decision to dismiss the case based upon the "Heart Balm Act" which prohibited suits for interference with a marital relations, the Appellate Division nonetheless decided that the suit was barred based upon best interest and public policy considerations.  In doing so, the court held:

We acknowledge with equal force, however, that plaintiff's cause of action raises profound questions of public policy concerning the propriety of permitting a parent to utilize a child's loss of affection for him or her as grounds for civil liability against the other parent. On its face, such a cause of action has the potential to deteriorate into an abusive process; it can be wielded like a sword by an emotionally
distraught parent with little to no consideration of how the litigation will affect the child. Most alarming is the potential for great harm such a cause of action would pose to the child.

Our overarching consideration in all matters concerning children involved in the judicial system is "the best interests of the child." This principle is embedded in the doctrine of parens patriae, which authorizes the court to intervene when necessary to prevent harm to the child. Application of this principle to the case at hand leads us to one inexorable conclusion: plaintiff's cause of action for intentional infliction of emotional distress must be barred as inimical to and irreconcilable with the best interests of the children
involved in this suit.

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Once again from the Windy City, another article from Manya Brachear of the Chicago Tribune reports on a child's religious upbringing post-divorce in an interfaith context, this time discussing a decision from a Cook County judge who decided that a father could take his daughter to church services to "expose" her to his religion during his parenting time.  From my search of this case on the Internet, it seems to be making headlines in Chicago.  Apparently, the parents divorced, the mother was Jewish and the father then returned to his Catholic roots (after having converted to Judaism once the child was born).  As part of this return, he began taking the three-year old child to church with him, even having her baptized without mom's permission.  Dad argued that they never agreed to raise the child Jewish, did not keep kosher at home and infrequently observed the Sabbath.

The court ruled in favor of dad in what it deemed was in the child's best interests.  In so doing, it also ordered that dad could have parenting time with the child on Christmas and Easter each year.  Notably, the order also stated that mom would always have parenting time on Rosh Hashanah, Yom Kippur and Passover.  The order lifted restrictions on the father from a prior restraining order preventing him from exposing the child to any "non-Jewish" religious activity.  Apparently dad still faces potential penalties for violating the restraining order.

As we blogged earlier this week, also discussing an article from Ms. Brachear on the substantially higher rate of divorce amongst interfaith couples, in New Jersey it is the child's Parent of Primary Residence - the primary caretaker - who makes the ultimate decision of a child's religious upbringing/education.  While the other parent - the Parent of Alternate Residence - can expose the child to their own religion, similar to what the father in the Cook County case can do, there may not be an educational aspect to such exposure without the primary caretaker's consent.   

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Religion in both marriage and divorce is often a very delicate issue that can strain family relations and put family members at odds with each other.  The strain can be even greater when the parents are each of a different religion.   An interesting article from today's Chicago Tribune by Manya A. Brachear called Religion Used as Weapon in Divorce focuses on the issue of a child's religious upbringing post-divorce in light of increased interfaith marriages.  Notable figures cited in the article include a percentage increase of interfaith marriages in the Jewish community from 17% to 47% from 1970 to 2000, and that interfaith households are 3 times more likely to end in divorce as those where both parents share the same faith. 

In New Jersey, the primary caretaker of the child (the Parent of Primary Residence - defined as providing a residence for a child for more than 50% of overnights annually or, if sharing is equal, providing the residence for the child while the child is attending school) has the right to determine the child's religious upbringing and education.  The rationale is to allow the primary caretaker to decide the issue should there be a disagreement because that parent might know the child better than the other based on greater day-to-day exposure with the child.  By contrast, the other parent (the Parent of Alternate Residence) may only choose to expose, but not educate the child in another religion.  What does expose mean as compared to educate?  Exposure generally includes taking a child to religious services during the non-primary caretaker's parenting time, but not enrolling him or her in religious training or classes. 

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Today's Daily Record has a story of a parenting time dispute that happens all too often. The story, written by Peggy Wright, tells a of a visitation/parenting time fight because a father wanted his 10-year old daughter to attend his birthday party instead of participating as a flower girl in her godmother's wedding. 

In ruling that the child should be permitted to participate in the wedding, the judge said that she believed the  girl should have the experience of wearing a special dress and shoes and eating the cake and hearing wedding music.  The article further states:

"A birthday party happens every year. A wedding is once-in-a-lifetime," Whipple said.  Saying she didn't mean to diminish the importance of a child celebrating a birthday with a parent, Whipple nonetheless said the wedding experience — and accompanying her bridesmaid mother down the aisle — would be unforgettable for a little girl. Addressing Miller directly, the judge asked: "Do you really want to say 'no dress, no cake, no wedding, no bridesmaid, no band? You have to go to my birthday party.' Do you really want to take that away from her?"

Though in one respect, the father had a right to be upset because the wedding was taking place during his scheduled parenting time, this is a typical example of divorce or divorced couples failing to be flexible and having a tug of war with their children, to the detriment of their children.  A simply remedy may have been to trade weekends or otherwise provide for make up parenting time.  Moreover, it was unclear from the story, but depending on how much notice the father had of this wedding, perhaps his birthday party (which was not on his actual birthday) could have been scheduled for a different do so that there was no conflict.  On the other hand, if the mother did not give the father adequate notice, as is often the case in these situations, then she too could have been responsible for this dispute.

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The old adage is that “He who represents himself has a fool for a client.” Family law by nature is an emotional area of the law - custody, alimony, equitable distribution, visitation, child support – these things impact peoples’ lives. As a result, when a party disagrees with the decision by the trial court, they have the right to appeal. When the Appellate Division issues a published decision, that decision becomes binding on all trial courts in the State. Thus, family law is constantly changing and evolving. 

For instance, in a recent unpublished appellate decision, a pro se litigant appealed a post-judgment order relating to alimony and custody. In R.K.B. v. C.W.B., App. Div., decided February 8, 2010, Docket No. A-1613-08T1, a pro se defendant, CWB, appealed from an order that: 1) denied his request for a hearing on custody of the parties' son; 2) found defendant in violation of litigant's rights and ordered him to pay plaintiff the sum of $5,000 due as reimbursement alimony; 3) restrained him from discussing court proceedings with his son; and 4) directed him to pay $1,750 to plaintiff as attorney's fees. The Appellate Division affirmed the trial court decision, finding that the trial judge did not abuse his discretion. In addition, the Appellate Court noted that the defendant failed to present sufficient facts to justify a hearing on child custody.

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Aaron Weems, an associate in our Bucks County office and editor Fox Rothschild's Pennsylvania Family Law Blog wrote an interesting entry entitled "Parental Alienation:  Programs Seek Solutions to Parent/Child Discord." 

The post discusses two programs that deal with parental alienation.  One is Overcoming Barriers Family Camp in Natick, Massachusetts,  The other is the Rachel Foundation for Family Reintegration located in Kerrville, Texas.

There is also a psychologist in New Jersey, Dr. Amy Baker, who has written and lectured extensively regarding this issue. 

We have blogged about this topic several times in the past, both on whether Parental Alienation will be added to the DSM, to Appellate cases addressing this issue, to the possibility of a cause of action in tort being considered, as well as several abduction cases.  We will continue to address this important topic whenever we can provide relevant information about it.

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On February 3, 2010, the Appellate Division issued a reported (precedential) opinion in the case of Parish v. Parish.  This case is near and dear to me because I represent Mr. Parish and we made new law. 

In this post-judgment litigation we filed a motion seeking enforcement of the parties' divorce agreement because the ex-wife interfered with his parenting time with the children and to fix a parenting schedule for the next several months. The schedule was supposed to be arrived at with the assistance of a parenting coordinator but the issuance of a domestic violence temporary restraining order against Mr. Parish's ex-wife delayed that process. After the restraining order was dismissed, the parties went to the parent coordinator who made recommendations prior to the return date of the motion. Mr. Parish agreed with them - he ex-wife would not state if she agreed or not, waiting to see what the court would do.

The trial court denied Mr. Parish's motion as moot, ordered the parties back to the parent coordinator to deal with the issues in the motion and required that the parties attend settlement conferences before filing any future motions, even enforcement motions.

We appealed arguing that (1) the trial court unconstitutionally impaired Mr. Parish's access to the Court and (2) the court improperly abdicated its responsibility to a parent coordinator who cannot, by Supreme Court directive, address enforcement issues in any event.

The Appellate Division agreed in a 2-1 decision. In doing so, they crafted new requirements before a family part litigant's access to the Court can be restricted.

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I recently read an article about post-divorce parenting. The article made suggestions that I thought were important to echo. In my practice, I see and meet all types of people and parents. Divorce often brings out the worst in people. It’s an emotional time - separation from a partner, equitable distribution, visitation, sale of the marital home, separation from children, moving, dividing of assets, alimony, infidelity, child support, negotiations, court, motions – the list goes on and on. Hopefully, these things will be resolved at some point. But the most important thing when all is said and done is that the children of the marriage are emotionally and mentally unharmed and continue to have a good relationship with both parents. 

 Without reciting the whole article, I thought I would make some observations about the matters I have handled. One thing I often see in a divorce is when a parent begins to treat their child like a friend.  Parents going through a divorce should not tell their child the intimate details of the divorce as if they are an adult. Divorce is an adult matter. Parents should avoid discussing the legal intricacies of a divorce with their child. It is important to explain to the child that you will be living apart and that both parents still love the child and it’s not the child’s fault. But there is no need to explain who will be receiving the retirement accounts or how much alimony will be paid.

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When to seek change of residential custody can be a difficult and costly decision to make. Obviously, when the safety and well-being of a child is in question, efforts must be made by the non-residential parent to seek custody (even if temporary) of the child. In a recent unpublished decision, Gorski v. Young, Appellate Division, Docket No.: A-2707-08T3m, decided January 8, 2010, the Appellate Division affirmed the decision of the trial court, when it decided if a ten-year old boy was in danger with his mother who had residential custody. In this case, Gregory Young filed a motion for a change of residential custody of the parties’ ten-year old son, Brian (fictitious name). Gregory alleged that Brian’s mother, Angel Gorski, was too mentally unstable, which resulted in Brian receiving “tardies” from school and culminated in an alleged suicide attempt by Angel – a fact Angel denied. Gregory’s motion was denied without a plenary hearing.

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Nearly everyone I know from the state of New Jersey has heard about the horrific battle Sean Goldman faced trying to have his biological son returned from Brazil where he was being cared for by his step-father after the unexpected death of his mother.  Recently, at the end of December he was finally reunited with his son, seemingly only after the case caught nation and worldwide media attention.  What some people may not know or fail to realize is that there are Sean Goldman's all over this country.  Parents from New Jersey and other states are faced in a similar battle trying to have their children returned to them from foreign nations.

One such case is the matter of Abbott v. Abbott scheduled for oral argument before the United States Supreme Court on January 12, 2010.  The Abbotts were married in England and later had a child in Hawaii.  They moved to Chile where they separated in 2002 and were later divorced.  The Chilean court granted the mother custody and father visitation rights.  In 2004, at the mother's request, the Chilean court issued a ne exeat order prohibiting either parent from removing the child from Chile without mutual consent of the other. 

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One would have hoped that Sean Goldman's return to the United States with father David Goldman would have been the end of this years-long international saga.  Sadly, however, that may not be the case.  News reports yesterday indicated that 9-year old Sean's Brazilian family will fight to regain "custody" of Sean, which is interesting since the family's actions and that of the boy's now deceased ex-wife really constituted an international abduction, thus leading to the boy's ultimate Court-Ordered return. 

After the family previously indicated that the fight was over, lawyers for the family will push to have the Brazilian court hear the boy's wishes after all - indicating as much on the same day that the boy returned home to Tinton Falls, New Jersey, claiming that it was "our home" when seeing the house where he will live once again.  Since the Supreme Court in Brazil does not convene until February, it would not be able to hear the family's arguments before then.

How the Brazilian family's ongoing legal actions will impact their likely future claim for visitation is unclear, as even their decision to publicly parade Sean through the streets in Brazil on the way to the United States consulate on Christmas Eve has been roundly criticized and, according to David Goldman, was a traumatic experience for Sean.  The family, however, has substantial financial resources and will likely fight this losing battle, seemingly at the wishes of Sean's maternal grandmother, until there is no avenue untapped.  For an additional prior blog post on this topic regarding Sean's return, click here as well.  Stay tuned for further details.

EDITOR'S NOTE:  We have previously blogged on grandparent visitation on several occasions.  Grandparent visitation is difficult to obtain in New Jersey following the US Supreme Court's decision in Troxel v. Granville and the New Jersey Supreme Court's decision in Moriarty v. Bradt and the cases that followed it.  Given the constitutional protections of the rights of a parent to parent their child(ren) free from interference from third parties, grandparents now must prove actual harm to the child if they do not receive visitation.  While on one hand, the death of a parent (as was the case in Moriarty) would be a factor in the grandmother's visitation request here on one hand, the abduction and the history in this case may mitigate that factor.  Moreover, one wonders whether, despite the harm that may be able to be proved in this case, given the circumstances surrounding the child's alleged bond with the grandmother and step father, that visiitation with these people who were allegedly part of the ordeal that kept father and son apart for several years, would overcome the harm.  ERIC S. SOLOTOFF

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Five years after David Goldman commenced his legal fight for the return of his now nine-year old son Sean, the boy finally returned to the United States for good on Christmas Eve.  As reported in today's Star Ledger, the pair traveled together on a private jet to Orlando, Florida, where they will first vacation together before returning to New Jersey.

In what can only be described as an unbelievable, chaotic scene in Brazil yesterday morning, Sean's stepfather, grandmother and maternal uncle paraded the boy through the streets leading up to the United States Consulate where David Goldman waited for the exchange to take place.  The boy wore a shirt bearing a Brazilian flag and tearfully clutched his stepfather while being mobbed by throngs of reporters trying to catch a picture of the boy in his final emotional moments in the foreign country.  Instead of accepting the Consulate's offer to bring the boy privately inside through an underground garage, the attorney representing Sean's Brazilian family admitted to staging the horrific spectacle in protest for David's reported refusal to allow him and the maternal grandmother to accompany them back to the United States.  One can only hope that this conduct will be considered by a court should the Brazilian family seek visitation in the future.

As recently reported on this blog, the Brazilian Supreme Court had Ordered Sean's return to his father, affirming the decision of a lower federal court in a matter that captured the world's attention and placed great focus on the Hague Convention, which states that children abducted should be returned to their "habitual residence," in Sean's case, the United States. 

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Last week news broke the Jon and Kate Gossellin, stars of the Lifetime television program “Jon and Kate Plus Eight,” were divorced in Pennsylvania. Judge Arthur Tilson entered an Order making it official.  To read previous blog entries on this celebrity divorce click here.

While many news articles reported that the couple used an arbitrator, few actually differentiated or explained the roll of the arbitrator. Sometimes divorcing couples use an arbitrator to decide issues in a divorce rather than go to the Court. While in New Jersey only a Judge can enter an Order actually divorcing a couple – hence dissolving the marriage, an arbitrator can decide almost any other issue, including alimony, child support, equitable distribution, college expenses, graduate school costs, medical expenses, counsel fees and tax-related issues. (The only caveat is that both parties must agree that the arbitrator has the authority to decide the issue.)

In NJ when it comes to custody and parenting time arbitration, there are specific requirements for this process that our Supreme Court has set forth in the Fawzy v. Fawzy matter. To read prior blog entries on this case and arbitration, click here or here.

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In the latest development in the ongoing international custody saga that has garnered the world's attention and involvement from the Obama Administration, the Brazilian Supreme Court has ordered the return of 9-year old Sean Goldman to the United States.  The Court specifically concluded that the child was to be given a say in whether he stays or returns to the United states with his father, David Goldman, a New Jersey resident.  This a few days after a federal appeals court ruled that the child must be returned to Mr. Goldman and also after a judge on the Supreme Court had then stayed the child's return.

For those not familiar with this years-long story that began dominating headlines and political attention within recent months, Mr. Goldman has been fighting to obtain Sean's return since 2004, at which time his former wife took Sean on what she indicated was a vacation to her native Brazil.  While in Brazil, the wife then divorced Mr. Goldman, stayed in Brazil and remarried, only to pass away in 2008 during child birth. 

Mr. Goldman deemed the act one of international child abduction and the United States has indicated that Brazil has failed to abide by the Hague Abduction Convention designed to address such international custody issues.   It was initially in 2004 that a New Jersey Superior Court held that the former wife's taking and keeping of Sean in Brazil was wrongful.  In 2005, a Brazilian court concluded that, while the former wife's actions were illegal under New Jersey law, the Hague treaty set forth that Sean could remain in Brazil if it could be established that he was settled there.

Earlier this year in June, a similar scenario unfolded where the Brazilian Supreme Court stayed the order of a federal judge to return Sean to Mr. Goldman.  Considering that Sean is only 9 years old, the Brazilian Supreme Court's decision to place such weight on where the boy wants to live is intriguing, only further heightening the attention associated with this matter.  News reports are indicating that the family in Brazil has and will file several more applications to delay the child's return yet again.  Stay tuned for further updates on this blog as they unfold.

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I have blogged several times about the celebrity divorces that have been in the news, from John & Kate, to Christie Brinkley, to Stephanie Seymour, to Jim Nantz, to the McCourts who own the LA Dodgers and others.

Every day for the last few weeks, Tiger Woods has been front page news regarding what he first called "indiscretions" and now calls "infidelity."  We have heard in the news about potential sweeteners to his prenuptial agreement if his wife stays, to rumors that she will leave him and so on .  Obviously, since the information from Tiger and his wife is limited, people are left to speculate and gossip.

 As a New Jersey Divorce Lawyer, the best that I can offer is to give some comments on how New Jersey divorce and family law would apply to the facts (hypothetical, speculation or true facts that have been reported). 

In New Jersey, marital fault is largely irrelevant except in limited circumstances.  Though not particularly necessary anymore since we have no fault (irreconcilable differences) divorce, the fault ground of adultery can still be plead as a divorce cause of action.  That said, receiving a divorce based on adultery does not get you anything more financially.

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This week, another mother was sent to prison for interfering with custody. On January 8, 2009, Patricia Schafer, 38 and her two children, John, 13 and Jessica, 3, were reported missing by Schafer’s husband, Douglas Schafer. Several days later, after a massive search, Patricia Schafer and her two children were found safe in Maryland. They were located by police exiting the Towson Town Center, a mall located in Towson, Maryland. Schafer was charged with interference of custody for failing to inform the children’s father, her husband, of the location of their children. She was also charged with racking up $20,168 on credit cards that belonged to a relative and friend.

Unlike the case of Maria Jose Carrascosa, which was previously blogged on by Apple Sulit-Peralejo, and parental abductions generally, which was previously blogged on by Jennifer Millner,  Patricia Schafer pleaded guilty to the charge of interfering with custody. Schafer was expected to stay out of prison by enrolling in the county’s Drug Court program. She was a candidate for Drug Court because of her addiction to painkillers as well as her bipolar diagnosis. However, Schafer rejected the prospect of Drug Court and was chose to be sentenced to prison. Superior Court Judge John Dangler imposed a four year sentence.

Schafer’s husband was disappointed by his wife’s choice of prison over Drug Court. During his victim impact statement, Douglas Schafer indicated that he did not believe his wife was going to get the help she needs in prison and that the kids will need her down the road. He also spoke of how her actions have devastated their family.

What is interesting about this case is that the Schafers were not going through a bitter divorce where custody was hotly contested. I say this because most interference with custody cases involve nasty disputes over custody. Clearly, the State of New Jersey takes these types of cases very seriously, regardless of the children’s parents’ relationship.

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During the course of a litigation where children are involved, the parties will often come to an agreement as to custody and parenting time.  By settling on this understandably emotional issue, the parties avoid having to go to trial, where the trial judge would have decided for them who has custody and what the parenting time schedule will be.  Depending on when settlement occurs during the course of the litigation, the time and expense of obtaining a custody evaluation, which involves the children in the process as well, may also be avoided. 

However, oftentimes after settling the issue and coming to an agreement, one or both parents will change their minds about what they just entered into for whatever the reason may be.  He or she wants to change the agreement or simple rescind on its terms.  We are actually involved in a litigation where the parties agreed to a holiday parenting time schedule with a parenting coordinator, the Court subsequently entered the terms of the Agreement in an Order, and the husband is still trying to back away from the agreement, having just filed a motion with the Court and leaving our client with no choice but to incur legal fees to respond.

The question then becomes, can they change the schedule so easily if they want to?  The simple answer is no.  A parent seeking a modification of a custody and parenting time agreement must show changed circumstances from when the agreement was made that the agreement is now not in the best interests of the children.

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THE HOLIDAYS.   For some people, the holidays are a joyous, festive, and happy time of the year - filled with family, friends, and well wishes.   For the rest of us, the holidays are stressful, hectic, and at times depressing.  Another year has come and gone - little has changed. I am a year older.  I have not lost those 20 pounds I swore I would lose at the beginning of the year - and now I have to lose that 20 plus an additional 15!  Ahh yes..... the holidays. 

For those people on the midst of a divorce these feelings can be exacerbated and even compounded further when children are involved.   During a divorce or immediately following, will be the first time children and both parents are not celebrating the holidays together.  Old traditions may be broken.  No longer will certain in-laws be seen, some you may have actually liked.  This can be hard on everyone involved, especially the children.

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I have previously blogged on the standard courts consider when asked whether a custodial parent can relocate outside of New Jersey. 

In our global economy with the economic times being what they are, more and more often I hear people asking if they'll be allowed to move with their children after the divorce.  Recently, the Appellate Court in New Jersey issued an unpublished decision in what appears to have been a hotly contested divorce and relocation trial.  In Hryack v. Hyrack, A-1321-08T4, A-3645-08T2 (two consolidated appeals) decided October 29, 2009, the court gave its thorough analysis of the relocation issue as it pertained to this family.

The first question for a court to answer when faced with an application for relocation outside of New Jersey is whether the physical custodial relationship between the parents is one where one parent is the primary caretaker and the other the secondary caretaker. O'Connor v. O'Connor 349 NJ Super. 381, 385 (App. Div. 2002). If a court does find that the relationship between parties is one where one parent is the primary caretaker and the other the secondary caretaker, the request to relocate must be analyzed further with the standard set forth in the New Jersey Supreme Court case of Baures v. Lewis, 167 N.J. 91 (2001).

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Yesterday, my partner, Apple Sulit-Perelejo wrote about the case of Maria Jose Carrascosa, who  was found guilty of eight counts of interference with custody and one count of contempt of court. Carrascosa had taken her daughter, Victoria, to Spain in 2005 while involved in a custody dispute with her ex-husband. A family court judge in August 2006 then granted sole custody of the girl to Innes and ordered Carrascosa to bring her back to New Jersey within 10 days. She failed to comply though and was arrested in November 2006 for contempt of court. She has remained in jail since then and has since been charged with the more serious, criminal offence of interference of custody. She can receive a sentence of up to ten years.   Yet, as Apple pointed out, the child’s father does not have custody due to a jurisdictional dispute between the United States and Spain, and the child is with neither parent.

This case brings to mind what was truly one of the most upsetting times in my career as a family lawyer.  While I have been involved in several international parental kidnapping cases, approximately ten years ago, I represented a father of a teen age son whose mother absconded with the child to South America, to a country which is not a signatory to the Hague Convention, the international treaty which deals with these types of situations.  The parents had shared parenting time, and during a period during which the mother had the child, they left the country and fled to the jungles of South America. Many, many months later, after Herculean efforts by investigators,  the United States and the consulates of several countries through which the mother had passed, the pair was located and returned to my client. Sadly, while in South America, the child had been mistreated by the mother, sent to the jungles to work and returned with various emotional issues. Fast forward several years later, and luckily, the teenager had completed therapy, was in college and had reunited with his family. His mother was sentenced to a prison term for her actions.

While these types of extreme actions are rare, they are real, and children are injured both emotionally, and in some cases physically.  It is always difficult when faced with a situation in which your client believes that a child may be of risk to be kidnapped by the other parent.  Angry parents often say things in the context of custody dispute in order to disparage the other parent. Yet in some cases, the fear is warranted, and appropriate steps must be taken in order to protect the child in question. The National Center for Missing and Exploited Children (www.missingkids.com), has resources for parents. Additionally, there are steps that parents can takew ith the assistance of their counsel in the context of their divorce or custody proceedings in order to prevent a parental abduction, or at least be prepared in the event it happens.

The biggest concern, of course, is the effect on the children are the victims of these situations. Parental abductions represent parental alienation at its worst, and the victim is always the child.  

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After serving almost three years in jail for failing to comply with a Family Judge’s Court Order, a Bergen County, New Jersey jury found Maria Jose Carrascosa guilty of eight counts of interference with custody and one count of contempt of Court. The guilty verdict could result in another ten years of jail time for Carrascosa.

In early 1999, Carrascosa married Peter Inness in her native country of Spain. Carrascosa had resided and worked in the United States since 1992. Inness was an American citizen. After their marriage, they returned to the United States and resided in North Jersey. On April 17, 2000, the parties’ daughter, Victoria, was born. 

By early 2004, the parties had separated and shortly thereafter, Carrascosa filed for a religious annulment with the Ecclesiastic Tribunal of the Archdiocese of Valencia Spain. 

In October 2004, the parties entered into a written agreement, through counsel, indicating that Inness would have parenting time with Victoria and prohibiting Victoria’s removal from the country. 

In December 2004, Inness filed a divorce complaint in the State of New Jersey seeking among other things, custody of Victoria. The Complaint was served upon Carrascosa in early January 2005 and within seven days of being served, Carrascosa left for Spain with Victoria snowballing into two years of litigation in the New Jersey Family Court, New Jersey Appellate Division, Spain and the Appeals Courts of Spain.

In the New Jersey Family Court proceedings, Carrascosa was ordered on a number of occasions to return Victoria to New Jersey and at no point did she comply. Carrascosa argued that New Jersey did not have jurisdiction to handle the matter and that pursuant to an Order of the Court in Spain, Victoria was prohibited from leaving Spain until her eighteenth birthday. However, the New Jersey Court and the New Jersey Appellate Division rejected Carrascosa’s arguments.  After a trial, the New Jersey Court entered one last Order requiring return of Victoria to New Jersey and granted Inness sole and residential custody of Victoria. Carrascosa appealed the Order but the Appellate Division affirmed the rulings of the Trial Court. The Order further directed that should Carrascosa fail to comply with the Order, she would be incarcerated until such time as compliance was met. Victoria was not returned to New Jersey and Carrascosa was arrested on November 13, 2006 pursuant to the Family Court Order.

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We have blogged in the past about parental alienation and "Parental Alienation Syndrome."  There was an excellent article in US News and World Report on line posted on October 29, 2009.  To read the article, click here.  To view some of our prior posts on this topic, click here and here.

The article discusses a movement afoot to add "parental alienation" to the next addition of the DSM (ie. Diagnostic and Statistical Manual of Mental Disorders) published by the American Psychiatric Association.  The new edition is scheduled to be published in 2012. 

While there appears to be little debate on whether parental alienation in both subtle and not so subtle forms goes on, there is a debate as to whether it represents a mental illness.  On top of that, there is concern that certain opposition to visiting with a parent could either be age appropriate (eg. a teenager being oppositional) or otherwise justified.  The people of this view are concerned that making parental alienation a mental illness could be invoked by an abusive parent to gain visitation with a child that has good reason to oppose contact.

No matter where you stand on the debate as to whether parental alienation is a mental illness, it is clear that alienating behavior in whatever form, big or small, cannot be good for the children that are exposed to it.

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Mark Ashton, a partner in our Exton, Pennsylvania office, and the editor of the firm's Pennsylvania Family Law blog, wrote an excellent post on that blog entitled, "Custody Evaluation". To read the post, click here.

I have previously blogged on this topic, as well.  To review my prior post on How to Prepare for a Custody Evaluation, click here.

Though Mark is in Pennsylvania, much of what he says would apply in NJ too.  However, while he says that the evaluations typically cost between $5,000 and $7,500, while that is not an uncommon "retainer" for an evaluation in New Jersey, it is rare that the costs do not exceed the retainer, and that is just for the report.  It does not include fees for testimony at trial or a deposition. 

However, in New Jersey, I think that typically, judge's do find the reports useful, especially if the expert is a joint or court appointed expert.  That said, a judge is required to make independent fact findings and cannot simply defer to and/or abdicate judicial responsibility to the expert.  There are times that you have to fight the deference to the expert.  In those cases, you may need to get your own expert.  Given best practices,  judges do not always allow you to get a new expert if the expert is a joint expert.  If it is a court appointed expert, a party has a right to get their own expert.

At Fox Rothschild, our family law group is capable of handling the most complex and/or contentious custody litigation.  I have also previously blogged on the new American Psychological Association Guidelines for custody evaluations.  To review that post, click here.  Similarly, I have blogged on other "experts" for custody/parenting issues in high conflict divorces.  To review that post, click here. 

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The scene is not all that uncommon.  Two people marry and have a child.  The relationship ultimately breaks down and, for one reason or another, one parent leaves the home without the child and tries to establish a new place to live.  If a custody order is entered during that time period, will a court consider the living situation of the parent who left the home in rendering a custody determination?

First and foremost, public policy in New Jersey favors relationships with both parents after separation/divorce, and that both parents share in the responsibilities in raising the child.  In the eyes of the law, both parents are treated as equals.  One aspect of a given situation that the court is to consider is the "stability of the home environment offered."

In Betancourt v. Spratley, the child's mother left the primary home without the child, leaving him with the father.  The husband filed an application with the court for custody, which was granted because the mother testified that she was essentially homeless at the time.  The court told the mother, however, to file for a custody modification based on a "significant change in circumstances" when her living situation had stabilized.  She ultimately did so one month later, providing as evidence her lease and a description of her roommates, living space and neighborhood.  She also provided evidence that she had resumed employment and that her employer provided for child-care planning.  The court, however, denied her requested relief. 

On appeal, the Appellate Division concluded that the mother should not have had to prove a significant change in circumstances.  Rather, considering the tumultuous circumstances surrounding the first custody order and the close time within which the mother filed to modify the custody arrangement, the Appellate Division found that the first order was really rendered to maintain the status quo for the child.  As a result, the Court ultimately held that the the mother was entitled to a review of the custody situation under the factors listed in New Jersey's custody statute (N.J.S.A. 9:2-4), and did not have to prove changed circumstances.  Such a review was to include a look at how and when the mother could be in a position to demonstrate that she had achieved stability; she was to have the opportunity to mediate the situation and have her living arrangements investigated; and another proceeding was to be scheduled in the future to determine custody and parenting time issues.

The custody determination has at its heart the best interests of the child.  A consideration of where the child will live is logically an important part of any custody determination made pursuant to New Jersey's custody law.  It is therefore critical that the parent establish that the home is a safe and loving place for the child to live. 

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Last Friday, I was sitting in a courtroom, early for my case, when the judge called the two attorneys on the case before mine into his chambers.   As the time passed, what interested me was the reaction of both of the clients that were left behind. Both clients were disturbed that they were left alone in the courtroom while their lawyers and the judge were “in the back.” Oftentimes, judges will ask the attorneys to come back to his or her chambers, or office, for a multitude of reasons.  And I realized, that in an already stressful situation, not knowing what was going on was just another worry for the litigants.  

On many occasions, the reason can be something as simple as the judge wanting to schedule something in the case and needs to look at the court calendar. For that matter, most attorneys will have more than one case in front of the same judge and they may wind up speaking about another case entirely for a brief period ( for example, “ by the way, have you been able to settle the Doe v. Doe case you were here on last week?” “ Not yet, judge, but I think we are close to a resolution.”).  I was in a judge’s chambers several weeks ago, and it was nothing more than a scheduling conference as my adversary and I were trying to schedule a next day of trial. Between the two lawyers, we had five cases in front of the judge.  It took quite a while to find a common day that both lawyers and the court was available!

The court may want to get a sense of what discovery it still outstanding and what a realistic time frame is for getting a case ready for trial.  Other times, the judge wants to speak about an aspect of the case and ask the lawyers for their position on a legal issue, and may explore whether the issues should be the topic of further research. Priority of issues in a case may be a topic of conversation as well. Which issues are ones which will take a longer time at trial and which are not. Are there any issues in a case which may reasonably settle prior to trial? And speaking of settlement, the court may want to know how far apart the parties are to a settlement.

Some judges will become more involved than others when settlement is being discussed.  Most issues have come in front of a judge before, and he or she knows that “range” a decision will be in. If one side is being completely unreasonable, the judge may be able to help the parties move towards a settlement. The judge may have some creative ideas for compromise that it wants to share with the attorneys.  The court may want to give the attorneys his or her initial reaction in order to focus an argument.

My point is, there are many reasons why the judge may call the lawyers to chambers. Whatever the reason, it is not unusual for the lawyers to get into chambers, and the court’s staff has a pressing matter to speak to the court about, and the attorneys have to wait.  In any event, the lawyer, should, upon coming back to the client be forthright about the topic of conversation, however mundane it may have been.  It is just one of the ways an attorney should effectively communicate with the client.

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Driving around town this weekend, I saw many lawn signs, like those you would see for a political candidate, advertising a "Free Divorce Seminar." The old adage, "you get what you paid for" comes to mind. 

While I am aware of the phenomena of these "seminars" over the last several years, putting aside potential conflict of interest issues that could perhaps be created, is this the type of thing that one contemplating a divorce should be attending?  Or rather, should a person schedule an honest to goodness divorce consultation with an attorney to which they have been referred or otherwise have researched? 

There is no privacy or anonymity at the seminar - you may see neighbors, parents of your children's classmates, etc.  There is no confidentiality or privilege at a seminar.  You have these things at an initial consultation. 

You cannot ask confidential questions at a seminar; maybe you cannot ask questions at all (and the smart attorney probably would not take questions for risk of prematurely creating an attorney client relationship.)  You cannot show the attorney any pertinent document for the same reason.  And how can you develop a rapport with a speaker at a seminar?  The seminar can never be tailored to your special circumstances because one size never fits all. At a seminar, you cannot really probe the presenter's experience, depth of staff and other resources of the firm, ability to commit to your case, etc. 

At the end of the day, a one-on-one consultation, even if you have to pay for it, will be far more worthwhile to protect your dignity and get the attention and information you deserve.

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Earlier this year, I blogged on the Houseman v. Dare case decided by the Appellate Division in a reported (precedential) opinion that held that  the special subjective worth of a pet to a party must be considered . Similarly, there were allegations there there was a specific agreement that one party would keep the dog, which was breached by the other party and Appellate Division remanded, as well, to consider whether there was an agreement. 

To see the prior post, click here.  To see the full text of the Appellate Division's decision, click here.

During the remand that was recently decided, the trial court,  in a somewhat Solomonic fashion, decided that the dog was to spend equal time with each party.  This seems to ignore the contract aspect of the case.  If more facts come out about this, we will update this post accordingly.

Per news reports, the trial judge stated that this was not a "custody arrangement" because, dogs are not children and do not get the same consideration. Despite the Appellate Division ruling, the judge reiterated that the dog was really no more than property.

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In my opinion, perhaps the saddest and often most heart wrenching part of a family law matter is a fight over children.  Custody disputes are so personal and important to each side that if the right people aren't involved they can get downright nasty and last many years.  This is especially so when children are young at the time the divorce begins. 

Like it or not, once children are involved parties are connected to one another for life.  While not always possible, children are best served when parents can put their differences aside and the children's needs and best interests first.  Typically that means being the bigger person, taking a few deep breaths and staying focused on the goal at hand- the children.  While this may be easier said than done, parties who cannot agree or who engage in bitter custody battles can spend years in the court system not to mention thousands of dollars on experts, court appointed or otherwise who become involved to help the parties resolve their issues.

There are several experts who can become involved in a litigated custody matter.  Forensic psychologists, psychiatrists and/or social workers can either be court appointed or selected independently by a party.  Their function can be to provide a medically based opinion of each party and the child(ren) and the interrelationships in the family.  Through a series of tests and interviews, the psychologist can offer a medically based, informed opinion as to the best interests of the child(ren).  They can also function in a therapeutic setting to repair, re-establish or reunite a parent's relationship with a child.

Parent coordinators can either be psychologists, attorneys or even licensed social workers.   Their function is to serve as a neutral third party to effectuate communication between parents as to child centered issues.  Often, parent coordinators refer to themselves as referees as they can offer insight and a perspective from an outside vantage point.  Parent coordinators do not have authority to make the final call and either parent can still raise an issue to the court for determination.

An attorney appointed to represent the interests of the child(ren) acts as an independent legal advocate for the best interests of the child(ren) and takes an active part in a hearing.

A guardian ad litem acts as an independent factfinder, investigator and evaluator as to the best interests of the child(ren).

The same person cannot serve as the guardian ad litem for the child(ren) and a court appointed attorney.

Once some or even all of these professionals are involved and a resolution is not reached, the issue of what's best for the child(ren) is placed before the court for determination.  A plenary hearing must be conducted "when the submissions of experts show there is a genuine and substantial factual dispute regarding the welfare of the children, and the trial judge determines that a plenary hearing is necessary to resolve the factual dispute." "In child custody cases, a 'plenary hearing is virtually a necessity...unless there are overwhelming admitted facts (e.g. child abuse).  Such a hearing must be held...where serious and long standing effects on the life and well-being of the child may result.'" 

For an in depth discussion of guardian ad litems, court appointed attorneys for the child(ren) and the court's role in making the decisions, see Bell v. Bell, A-0308-06T3, Decided August 10, 2009.

Through the judicial system parents are given opportunities and tools to resolve these issues between them.  However, the best decisions are the ones that parties can agree to amongst themselves as they are the most likely to be followed.

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Last week we blogged about a recent unreported Appellate Division case where I was the attorney for the winning party at trial and on appeal.  To view the prior post, click here - to view the Appellate Division opinion, click here.  In last week's post, I blogged about the importance of credibility.  There were other interesting parts of the decision.

In this case, the parties agreed that they would have joint legal custody but that the wife would have the children about 60% of the overnights.  The husband, however, in what we deemed a game of semantics, would not agree that the wife was the Parent of Primary Residence (PPR), though by definition, since she had the children more than 50% of the time, she was the PPR.  There is case law that says that the PPR has final say if parents deadlock on major decisions for the children.  Despite this being the law, this was an unresolved issue at trial.  The trial court essentially acknowledged the law.  The husband appealed claiming that the custody agreement was modified.

The Appellate Division held:

Defendant initially argues that the trial court erred in "setting aside material portions of the Consent Judgment to elevate plaintiff's decision-making authority" respecting the parties' two children. We disagree.
This was a bitterly contested divorce as evidenced by the extent of the record and the expense of the litigation. The court recognized that the parties "dispute[d] how to make decisions related to their children" and "recognized the parent of primary residence to be the parent in the better position to make those decisions." The court held that as "primary caretaker," plaintiff "shall decide in the best interest of the children their medical needs and treatment, schooling, expenses, and even religious instruction" because it was not in the children's interest to "be in the middle of parental conflict" when decisions concerning their welfare needed to be made. The court left intact the parties' agreement to "confer on all important matters concerning the children's health, education and general well being" and to use a mediator to resolve disputes that might arise concerning the children. The court concluded that "[t]he parties shall be bound by the terms of their consent judgment fixing custody and parenting time subject to the plaintiff's authority as parent of primary residence." With respect to extraordinary medical treatment, the parties were to consult each other in advance, except in cases of emergency, and "[n]either party shall unreasonably withhold consent."

We agree that the trial court's modification of the parties' consent judgment is in the children's best interest, considering the hostility between the parties. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). Should the parties come to a resolution of their hostilities and be able to deal reasonably with each other regarding the children, they may seek to amend the judgment in respect of the custody provisions pursuant to N.J.S.A. 2A:34-23. In the meantime, irrespective of the parties' agreement, the court properly exercised its "supervisory jurisdiction as parens patriae," in the children's best interests. Sheehan v. Sheehan, 38 N.J. Super. 120, 125 (App. Div. 1955).

To the extent that parenting agreements are unclear, or there is a dispute as to what joint legal custody means, this case provides some guidance.

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Previously both Jennifer Millner Weisberg and I blogged on a highly publicized New Jersey family law case, Fawzy v. Fawzy.  To read my prior post on this case, click here.  To read Jennifer's post, click here. 

For those of you who may not be familiar with Fawzy, this matter involves parties who opted to participate in binding arbitration as to all outstanding issues in their matter, including a determination of custody and parenting time, as opposed to proceeding with a trial.

Alternate dispute resolution is another method by which parties who have outstanding legal issues between them can select a mutually agreeable individual to serve as a mediator and decide the issues, rather than sit through and bare the expense of an expensive and often lengthy trial.  Alternate dispute resolution methods, such as arbitration, are available in nearly every area of the law and not limited to family law matters. People prefer arbitration because it may resolve issues more expeditiously than otherwise having a trial.  In addition, the arbitration process can be more informal than deciding issues in a courtroom before a judge.  Our courts encourage arbitration as a substitute for litigation.  Arbitration conducted by an individual of the parties' own choosing is often less antagonistic than litigation and may minimize the harmful effects of divorce litigation on a family.

In Faherty v. Faherty, 477 A.2d. 1257 (1984), the New Jersey courts approved the arbitration of alimony and child support issues.  So when the Fawzy's decided to arbitrate the issues of custody and parenting time- what was the problem?

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Custody disputes are often the most emotional part of any divorce litigation.  Determining what the physical and legal custodial arrangement will be is a fact-specific analysis that puts at the forefront the best interests of the child.  While both parents start out with a presumpton of equal rights in a custody proceeding, fostering a child's relationship with both parents is of utmost importance, as is encouraging both parents' involvement in raising the child. 

N.J.S.A. 9:2-4(c) provides for several factors that a trial court must consider in determining whether to award joint custody, sole custody or an alternative that works in the child's best interests.  These factors include, but are not limited to, the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody; and the needs of the child.  The Appellate Division recently addressed these factors in the context of a physical and legal custodial dispute in Elliott v. Prisock-Elliott, decided June 2, 2009. 

For a joint physical and legal custodial arrangement, the New Jersey Supreme Court has held that the children must recognize both parents as sources of "security and love," with a desire to continue both relationships; both parents must be fit and willing to accept custody; and the parents must demonstrate a "potential" for cooperation analyzed outside of the divorce context.  A parent involved in such a dispute should understand, though, that he or she need not have been as involved as the other parent in the child rearing process for joint custody to be appropriate. 

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We have previously blogged on the issue of whether a separate tort cause of action exists for parental alienation.  At present there are at least  two cases in the Appellate Division addressing this issue.  In at least one of the cases, there is the direction that parental alienation should be dealt with in the family court, but not as a tort. 

In an unreported Appellate Division decision dated June 5, 2009 entitled Cole v. Cole one of the issues raised in an application was parental alienation on the mother's part.  Specifically, the father alleged hat the mother seeks to alienate the children from him. He made a number of
general allegations that defendant was not abiding by the parenting schedule fixed by court order, including contentions that on multiple occasions defendant refused to allow court ordered parenting time or to permit the children to speak to him on the phone.  In her responsive certification, the mother denied  that she interferes with the father's.   She stated that the children were "well, adjusted, healthy and normal, both physically and emotionally," although she did indicate problems with the children when they returned from defendant's home.

The trial court did not change custody or even give a hearing.  The judge did find that certain additional parenting time should be considered for the father but denied his motion without prejudice.  The father appealed arguing among other things that the decision condoned the mother's bad acts. The Appellate Division affirmed.  In doing so, there was a very interesting quote, as follows:

After a careful review of the record, we concur with the trial judge that defendant has not made a sufficient showing that changed circumstances have occurred and that "a genuine and substantial issue" of custody is present. Certainly, the hostility between these parents does not benefit the children. In a divorce setting, oftentimes the greatest test of a parent's love for the children is to foster, in the face of adversity, the children's love for and relationship with the other parent and to work with the other parent in a civil manner to benefit the children. It is a circumstance that forces a parent to dig deep into himself or herself and put that love for the children ahead of the bitterness felt toward the former spouse. However, defendant's proposal to change custody will not accomplish that nor remedy any problem here.

If, indeed, parenting time is being denied, enforcement remedies should be sought. If defendant seeks additional parenting time, such as an additional weekday dinner as suggested by the trial judge, that relief can be requested from the trial court if the parties cannot agree. The record does not indicate that the circumstances here are so deleterious to the children that "a genuine and substantial issue" of custody
is present.

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In this day and age, marriages involving people of different religious in no longer uncommon.  In some of these families, the parties choose one religion to raise the children in.  Sometimes even, one parent converts to the other's religion.  In other cases, the parties and the children observe both religions.

The question is what happens when the parties divorce?  What happens if one parent converts to another religion post-divorce and wants the children to similarly convert.  Though it seems as though this would be a complicated issue, in reality, the answer to the question is relatively easy. 

Specifically, under NJ law, the primary caretaker has the right to determine the religious upbringing of the children in their custody and courts will not interfere in that parent's decision regarding religious training for the children.  The policy behind this judicial reluctance to interfere with the religious training of children is that it is in the best interests of the children that the custodial parent be allowed to determine their religious upbringing. 

This principle was confirmed by the Appellate Division in a case where the parties were Protestant and raising the children in that religion before the divorce.  After the divorce, the mother converted herself and the children to Orthodox Judaism.  The mother, however, was not allowed to use the religion to interfere with the father's time with the children.  Moreover, the father could expose the children to his religion when they were with him but was not allowed to educate them in his religion.

Simply put, the custodial parent can determine the children's religion - the non-custodial parent can expose, but not formally educate the children in that parent's religion. 

The Court's have been clear that this has nothing to do with the preference of one religion over another. Rather, it is consistent with the law in general that gives custodial parents final say in decisions regarding children, even where there is joint legal custody, because that parent is presumed to know more about and be more in tune with what is in the children's best interests.  This principle has been applied to disputes ranging from religion to those involving elective medical procedures such as a nose job. 

While this issue does not come before the Court all that often, as noted above, the law is well settled in this area and pretty straight forward.

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Last week, I authored and released a Family Law Alert regarding the new Guidelines for Child Custody Evaluations in Family Law Proceedings issued by the American Psychological Association Issues. To view a PDF version of the alert, click here.  The full text of the alert is as follows:

The American Psychological Association (APA) notes that parties resolve child custody issues amongst themselves in 90 percent of the cases. When parties cannot resolve custody and visitation issues (called “parenting time” in New Jersey) amongst themselves or after a court’s early intervention program, the next step is to have a child custody evaluation performed by a forensic psychologist. In some cases, the court will appoint this expert. In others, the parties may agree upon a joint expert. In bitterly contested cases, parties often have their own custody expert - and there may also be a court appointed expert.

In 1994, the APA developed Guidelines for Child Custody Evaluations in Divorce Proceedings. The APA issued updated guidelines effective February 21, 2009, which are effective for the next 10 years. These Guidelines consist of 14 individual guidelines that are meant to be aspirational in nature, and not mandatory. Rather, the Guidelines are intended to facilitate the continued systematic development of the profession and a high level of practice by psychologists. The Guidelines were not intended to be exhaustive nor replace the judgment of the psychologist. That said, they provide fodder for cross-examination during a custody trial if the expert is not aware of the Guidelines and/or fails to follow them. A rationale and application is provided for each of the following 14 Guidelines:

1.  The purpose of the evaluation is to assist in determining the psychological best interests of the child. Since the ultimate standard in deciding a custody case is “the best interests of the children,” the Guidelines reinforce that the psychologist should be focusing on the psychological best interests of the children, which is what the Court expects. The Guidelines encourage the expert to weigh and incorporate family dynamics and interactions; cultural and environmental variables; relevant challenges and aptitudes for all examined parties; and the child’s educational, physical and psychological needs.

Litigants going through the process of a custody evaluation should provide the expert with all relevant information regarding these factors. In reviewing the expert report, make sure that the expert has addressed them all. If it is your own expert, you may want to inquire why these issues are not included. If it is a neutral or adverse expert, it is a potential issue to be raised on cross examination. With the neutral expert, you may not want to wait until trial. If any of these factors are important enough to impact the final recommendation, you may want to ask the expert to reconsider his or her recommendation in light of this information.
 

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With technology, the Internet, mobility and information overflow, post divorce individuals often wonder if they can relocate to another state for personal or business related reasons.  The easy answer is sure, so long as there are no children or if your divorce judgment or agreement addresses this issue.

What happens when children are involved and the agreement or divorce judgment does not address the issue of relocation of a custodial parent.  The custodial parent seeking to relocate can file an application with the Court for an Order granting them permission to relocate.  The controlling statutory law is N.J.S.A. 9:2-2 and the precedential case in the state of NJ is Baures v. Lewis, 167 N.J. 91 (2001). 

Recently, the Appellate Division revisited this issue in the unpublished matter of Cathrall n/k/a Greenberg v. Cathrall, IV, decided March 18, 2009, Docket Number A-4085-06T3.  This appeal stemmed from a post judgment order denying relocation, which resulted from a post judgment motion requesting permission to relocate from New Jersey to Florida, filed by the mother/custodial parent. 

The parties were divorced in 2003.  Since their separation, plaintiff/mother had custody of the two minor children born of the marriage.  Defendant/father had supervised parenting time due to admitted issues with alcoholism and had a strained relationship with the minor children.  A year after the divorce was finalized plaintiff/mother remarried.  She was also the owner and operator of a children's clothing store in Stone Harbor, which was operated as a seasonal business during the summer months.  Plaintiff/mother filed an application in early 2004 seeking permission to relocate to Marathon, Florida.  Her desire was to open a similar store in Florida to operate during the winter months and return to NJ during the summer months to operate the store in Stone Harbor.  Defendant/father opposed this application, however by way of an Order dated April 8, 2004, the trial court granted the request.

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Mark Ashton, a partner in our Exton, Pennsylvania office, and the editor of the firm's Pennsylvania Family Law blog, wrote an interesting post on that blog entitled "A Test of Character And A Savings In Cost." To read the post, click here.

Unfortunately, the scenario Mark wrote about is all too common in divorce cases.  Parents often put their children in the middle of financial issues.  How many times to do we hear, as I did as the child of divorce, to "ask your father for it."  Or "I have no money", "I can't afford it, ask your father" or worse yet "your father doesn't give me enough money for this."  I am sure that there are other variations or permutations.  What about when a parent expects to exercise their parenting time (visitation) on the regular days, but there are parties, outings, events, etc. planned for that time.  Does that parent become the bad guy when the child can't go?  Can the other parent do something to make it "alright" for the child to miss an event or do they inflame things by saying "it's your father's fault you cannot go." 

Sadly, these things are typical in divorces.  The people who do it (divorce) right, try to limit this.  The ones that don't risk doing damage to their kids and running up their legal fees.  At the worst end of the spectrum, the conduct can result in parental alienation.

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The Division of Youth and Services ("DYFS") is this state's prosecutorial agency for children who suffer from abuse and/or neglect at the hands of their caretakers.   DYFS is not an agency that many are or want to be familiar with.  For others, they are all too familiar with DYFS and the effect its involvement can have on their family's life.

In a recent published Appellate Division decision, the Court reminded us of the standard of proof to be demonstrated by DYFS in a proceeding where they are seeking to terminate a parent's rights to a child.  In DYFS v. A.R., A-5079-07T4, decided March 4, 2009, the Court set forth a detailed opinion and case history where DYFS failed to meets its burden of proof and thus lost its application to terminate the parental rights of A.R.

Some brief background of this case involves A.R. and her four children.  A.R.'s involvement with DYFS began in 2005, when the children were first removed from the home.  A.R. was married to an individual who was a known crack cocaine user.  A.R. herself had been a crack cocaine user but had entered and completed a rehabilitation program and was sober at the time this opinion was rendered.

After the first removal of the children in 2005, several months later the trial court entered an Order allowing for reunification.  This reunification did occur.  Not but two months later, the children were again removed as A.R. had allowed her husband back into the home and to be with the children while he was actively using drugs.  Two months after this removal, reunification was once again ordered.  One month later, the children were removed for a third time because A.R.'s husband was found in the house high on crack cocaine.  This time the children were placed under the care and supervision of DYFS and a law guardian was appointed.

DYFS filed a complaint for guardianship of the children.  At a hearing, the trial court ordered a bonding evaluation, which never took place.  A trial took place over a two month period.  The trial court denied the termination and guardianship application stating that DYFS did not satisfy its burden of proof.  The Appellate Division affirmed.

A parent's right to "raise a child and maintain a relationship with that child" is constitutionally protected under the federal and state Constitutions.  Id. at pg. 15  "As a result, the State's rights "is limited to situations in which the State has demonstrated that the child's parent or custodian is unfit...or the child has been neglected or harmed."  Id. at pgs. 15-16.  DYFS has the heavy burden, by clear and convincing evidence that this harm has not been cured, that the parent or custodian will continue to cause such harm and that terminating parental rights is in the best interest of the child. 

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There are times when litigants, without first seeking the advice of an attorney or at times, disregarding the advice of counsel, will file, on their own, motions to the court seeking to change or modify certain aspects of a previously entered agreement reached in resolution of a divorce proceeding or order entered by a court.  For example, an application seeking to change the custodial arrangement for a child.  Certainly individuals have open access to the courts and can choose to represent themselves in court in any type of proceeding.  However, this may not always be the best choice without first knowing, understanding and appreciating the ramifications of the action.

That said, in the recent unpublished deicion of Cacici v. Gallagher, A-4890-07T1, decided February 25, 2009 the parties had been divorced since 1997.  They had previously agreed to joint legal custody of their child and the defendant was designated primary residential parent.  This lasted for some time with plaintiff enjoying liberal visitation with the child.  Initially, after the divorce, the parties got along amicably and had a high level of communication with regards to issues involving their child.

In 2006, defendant was diagnosed with stage-four cancer and underwent surgery.  As a result of her serious illness, she was unable to care for the child and other issues related to the child emerged.  Plaintiff took residential custody of the child and on February 15, 2007, he was granted temporary residential custody of the child due to her difficulties in dealing with defendant's illness.  The child was having documented difficulties in dealing with her mother's illness that affected her school work, her moods, her personality, etc.  These changes were noted by the school's counselors and the child's therapist along with plaintiff.

In 2008, defendant filed, Pro Se (representing herself) an emergent application requesting additional parenting time with the child, alleging that plaintiff was alienating the child and that plaintiff would not allow the child to attend a pre-planned vacation with her  This application was denied and converted into a motion. Plaintiff filed a cross motion alleging several infractions of the parties' Property Settlement Agreement and requesting a denial of defendant's requests regarding parenting time and custody issues. 

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Jane Lessner, a partner in our Philadelphia office, wrote an interesting post entitled "How Many are Too Many" on the firm's Pennsylvania Family Law blog.  The addresses legal issues raised by "Octomom" type situations. To see the full post, click here.

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On Tuesday, February 3, the New Jersey Supreme Court heard arguments on the Family Law case of Fawzy v. Fawzy. This case was originally reported by Sandra Fava of our Roseland office this past summer when the Appellate Division determined that a court did not have the ability to permit parents to submit to binding arbitration on the issue of custody. To read Sandra's original post, click here.  To read the full text of the Appellate Division's decision in the case, click here. 

The Supreme Court granted certification. Both sides offered excellent arguments for and against the issues.

In this case, Mr. and Mrs. Fawzy agreed, in the courthouse, and in front of a judge, to submit the issue of custody to an arbitrator.  As Sandra mentioned, the parties were scheduled for a trial date in early 2007.  When they appeared in Court on this date, they agreed to submit all issues in contest to an arbitrator for binding, final, non-appealable arbitration pursuant to this state's statute governing arbitration (N.J.S.A. 2A:23B1 to 32).  They, along with their respective attorneys appeared before the judge that same day and placed this agreement on the record.  The judge clearly advised them that the arbitrator's decision would be final and could not be changed.  The parties agreed and went forward. They went to a well respected arbitrator who specializes in family law. Subsequently, Mr. Fawzy, who did not like the way things were going, moved to vacate the arbitrator’s decision, contending that issues such as the custody of children could not be subject to arbitration. The Appellate Division agreed. 

But what of the future? Arbitration can proceed with the same formality as a court trial or in some cases, with a more relaxed structure. However, the process is something that is agreed to by the parties in advance order to insure fairness. In a nutshell, the strong public policy in New Jersey is such that the Courts favor settlements between parties through alternative dispute resolution, of which arbitration is one example. In arbitration, the parties agree to have an arbitrator, rather than a judge, decide issues. There are many instances other than the matrimonial context in which arbitration is utilized and has been for many years in New Jersey. There are laws concerning the use of arbitration. However, it is only in the relatively recent past that arbitration has been commonly used to resolve matrimonial issues. This is obviously due to the sensitive nature of family proceedings. At the current time, there is no statute which specifically governs arbitration in family cases.  Utilizing arbitration for custody seems to be the next logical step in alternative dispute resolution for matrimonial cases.

The central issue is whether a judge, who stand in a parens patriae, or protective role, can in effect delegate his or duty to make a determination as to custody to an arbitrator. There have been previous cases in which the courts have been prohibited from allowing a parenting coordinator from making decisions as to custody and parenting time. Is it right for  litigants to be able to agree to allow a third party other than a judge the authority to make a custody determination on these issues? There are certainly arguments for and against.

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So often I hear this statement from a client in a case in which custody is an issue. The next question is usually, “can my child tell the judge what he (or she) wants? The answer to that question is a definite maybe. 

The New Jersey Court Rule 5:8-6 provides that when a court finds that custody of a child is a bona fide issue, the Court may, at the request of a party, or on its own, conduct an interview of the child. This interview is to be conducted in camera, which means the child will be alone with the judge for the interview. Although the interview is conducted by the judge alone with the child without the parents or the attorneys present, it is done on the record, meaning the entire interview is recorded, and the parties are entitled to a copy of the transcript of the interview. Additionally, counsel for the parties must be permitted to submit questions to be asked of the children ahead of the interview. If the Court decides not to ask that questions that have been submitted, the judge must tell the party submitting the question the reason for the decision not to ask the question.

The current rule is a change from the prior rule which had mandated an interview when custody was an issue. However, in 2002, the rule was changed to make the interview discretionary. In the event that a judge decides not to conduct an interview, the judge must place its reasons for not doing so in the record.

Judges often have good reason for not wanting to conduct an interview. Sometimes it may have to do with the particular facts of a case, when, for example, a judge feels that he or she has enough information and an interview may be unduly stressful to the child. Other times, the court may feel that a child is too young to be able to provide accurate information, or that the child is being influenced by one or the other parent and the wishes expressed may not be valid.

On the other hand, some judges simply do not feel comfortable with the interview process. In one case, Mackowski v. Mackowski, 317 N.J. Super. ( App.Div. 1998), one of the Appellate Division judges stated that he believed that judicial interviews of children were in fact harmful to the child and actually had a risk of being destructive to parent-child relationships. He thoughtfully expressed his belief that no matter how sensitive a judge tries to be, there is nothing that judge can do to convince the child that he or she is not responsible for the ultimate outcome of the case.   In his comments, Judge Kestin noted his belief that it is far better to leave the job of an interview to a mental health professional who has years of professional training and experience.  

Certainly, there will be cases in which it is appropriate to have a court conduct an interview of a child in connection with a custody dispute. However, Judge Kestin’s insightful comments are ones which all attorneys and litigants should keeping mind when experiencing that automatic impulse to ask a judge to conduct an interview with a child.    

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My clients often ask “will I get the same thing that my neighbor received in his divorce” or “why can’t my ex share in transportation-- my cousin has to share with her ex” or “my friend earns so much more than me and his support is much lower than mine”. I always tell my clients that as a rule, don’t compare your situation with the situation of someone else. 

While the same laws concerning family law actions are applied to each case, each case is different and therefore, the outcomes are different. It is true that many cases have similar factual patterns but most of the time they are not exactly the same. Using one of the examples above, while someone may be earning more but paying less in support than another litigant, it could be that the ex-spouse of the litigant had other available resources generating income like an inheritance or the ex-spouse could have received more of the family assets as a trade-off for less support. While it is very tempting to compare your situation with that of another person, keep in mind that more likely than not, you are not getting the full story from that person. Also, sometimes misery loves company and it could be that the only part of the story you are getting is what the other person painfully remembers the most.

Also important to note is that in New Jersey, the statutory factors for an award of support or for a custody determination are numerous. The Courts apply each factor to the given situation and then completes a balancing of all of the factors prior to rendering a determination. It is in this application of the facts that results in different determinations among cases. Moreover, litigants should also recognize that Judges are vested with a certain level of discretion in weighing the factors which is yet another reason why the outcome of cases differ. 

Notably, if one was to review a significant amount of family law decisions published by the Court concerning the same exact issue (child support, alimony, custody, etc.), it is very unlikely that a person would find a decision with the same exact fact pattern as their given situation. 

In short, save yourself some frustration and make it a rule not to compare your family situation with that of someone else during a litigation and focus on your facts with your attorney.   After all, as I tell my clients, it is your facts that we will be presenting to the Court and not the facts of your neighbor, cousin or friend.

EDITOR'S NOTE:  i once had a client who used to say that no one could believe how much temporary support he was paying and that it was the most anyone ever heard of.  My answer was, "Do they make a million dollars a year like you? No.  Do they make a half a million a year?  No  Do they make $250,000 per year?  No.  The moral is that he was talking to people whose finances had no similarity to his and reacting to their shock.   That goes exactly to Apple's point - while friends and relatives are good for support and a shoulder to lean/cry on, they are not usually a good source of legal advice or information.           ERIC S. SOLOTOFF

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I am currently preparing for trial in a case in which there is a special needs child. These cases bring another layer of topics to the already crowded plate. No divorce is easy, and when children and custody issues are involved it is more difficult. However, when a special needs child is involved, there are complex issues which arise and which must rise above the parent’s anger, emotions, and anxiety, of the process.  

 First, one primary issue is that of the expenses associated with the child. If the child is receiving governmental assistance, it is imperative that a divorcing parent consult with counsel that is familiar with special needs trusts as well as special education. What is it they say about “the best laid plans???” Parents trying to plan for the future with the best of intentions may create now, a situation which will later impede the child’s ability to qualify for and receive benefits. That having been said, it is critical to anticipate, to the extent possible, the current and short to mid term custodial and financial needs of the child so that an appropriate parenting schedule and amount of support can be set in order to avoid an expensive trip back to the courthouse later in order to make modifications or to obtain an increase in support.

Another issue which needs to be addressed is the bona fide day time needs of the child. I was involved in a case several years ago in which the father thankfully realized that due to the severity of his son’s problems, the mother, who was otherwise employable and capable of supporting herself, needed to be available to take care of the child during the day. I have had other cases in which a parent has essentially tried to “exploit” a child’s otherwise minimal disability in order convince a judge that employment outside of the home was impossible. In the vast majority of cases that are filed in New Jersey, both parents have, or will presumably have to work outside the home. In a case when there is a special needs it is imperative to accurately assess the true needs of the child. This may often involve the retention of an expert who is familiar with the particular disability of the child in question.

Divorce is stressful under the most “ideal: situation. However, when the parties have a special needs child, it is critical to make sure the parents are considering all aspects which carefully consider the present and future needs of the child.

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The rights of individuals who have children to parent is one of the most precious and protected while at the same time vulnerable and subject to termination when state agencies, including the courts are involved.

In November, Robert Epstein blogged on the procedural safeguards that must be in place when custody is at issue.  To read more on this blog, click here.  In conjunction with that blog entry, the Appellate Division just last week handed down another  published decision, which scrutinizes the burden of proof required by DYFS and that must be considered by trial courts when determining whether parental rights are to be terminated.

In DYFS v. M.C. III, In the Matter of M.C. IV and N.C., a father who had custody of his two children after a divorce from their mother was accused of physically abusing the children.  The father testified at trial that an argument arose with the children, who were at the time ages 15 and 13, over their use of the Internet.  From that argument the father admitted to pulling at his son's shirt and accidentally falling on his daughter, after his son jumped on his back and pushed him to the ground.  On the day in question, the police came to the home twice, neither time reporting any signs of abuse or injuries.  Subsequent to the second visit, the children went to an aunt's home, where they called their mother and took a train to see her.  Their mother then brought the children to a nearby hospital and DYFS received a report from the hospital.

At trial, rather than providing live, in-person testimony, DYFS presented as evidence written reports created by the doctor at the hospital, but not part of the hospital's file.  Rather, these reports were written on DYFS intake and procedure forms by DYFS workers, relaying what the doctor had allegedly reported to them.  In addition, the DYFS caseworkers who worked on the file did not provide their own live, in-person testimony.  Rather, other caseworkers testified as to the contents of reports prepared by other caseworkers.  These reports contained statements made by the children, police and hospital staff.  Since the caseworkers who prepared the reports themselves nor the doctor were available to testify, the trial judge accepted hearsay and double or even triple hearsay as substantial, credible evidence in finding abuse and neglect on the part of the father and terminating his parental rights.

On appeal, the Appellate Division held that given the serious impact a finding of abuse and neglect has on an individual and family's life, credible evidence must form the basis for a finding of abuse and neglect.  It is incumbent upon DYFS to provide such credible evidence, in conformity with New Jersey statutes, case law, Rules of Court and Rules of Evidence when presenting a case requesting the termination of parental rights.  Citing the law set forth in In re Guardianship of Cope, 106 N.J. Super 336 (App. Div. 1969), "it is of great importance that the evidence upon which judgment is based be as reliable as the circumstances permit and..the answering parent be given the fullest possible opportunity to test the reliability of [DYFS]'s essential evidence by cross-examination."  Id. at 343. 

As such, the Appellate Division held that the admission of DYFS created documents was "clearly capable of producing an unjust result" because the trial judge relied directly upon that evidence in finding that the children had been abused and neglected.  Those documents did not provide a reasonably high degree of reliability as to the facts contained therein.  Further, DYFS workers should only be permitted to testify to facts within their own first-hand knowledge of a case.

This case provides further guidance as to the standard of proof and credible evidence that must be presented in a case addressing a request to terminate a parent's rights.

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On appeal from a decision rendered by the now-retired Judge Camp of Essex county, the Appellate Division's affirmation of Judge Camp's decision in the matter of Robert Goldman v. Gail Mautner is one that details and describes the unfortunate but all too common realities that occur during contested custody trials in the family court., though this case appears to be almost as bad as it gets.

This appeal stemmed out of defendant's displeasure with Judge Camp's determination that the parties should share joint legal and physical custody of the children despite defendant's allegations that plaintiff was an unfit parent and unfounded allegations of abused by plaintiff on the children.

After a 29 day trial limited solely to the issues of custody and parenting time, Judge Camp rendered a detailed 33 page opinion whereby he determined that it was in the best interest of the children to have shared legal and physical custody with their parents.

During the trial, both parties initially sought sole custody of the two children of the marriage.  Plaintiff later changed his position to joint custody while defendant remained steadfast for sole custody.  This litigation commenced in 2003 after the parties had been married for approximately 10 years.  Defendant claimed  that plaintiff was abusive to her as well as the children.  DYFS conducted an investigation and hired an outside expert to evaluate the parties and children.  After such an evaluation it was determined that there was no abuse substantiated by the plaintiff against the children and rather that the children had been programmed to allege same without fully understanding or appreciating the effects of their allegations.  Supervised parenting time was recommended by the DYFS expert only  so that plaintiff would be protected against further baseless allegations.  Testimony was offered during the trial by the supervisors relating to incidents where the children made unfounded allegations of abuse during times when the supervisors were present and noted that these allegations were fictitious.

Defendant's appeal raised several issues relating to alleged bias of Judge Camp against her, error by the trial court in not permitting the live testimony of lay witnesses on defendant's behalf, error by the trial court for not interviewing the children, and alleged error by the trial court for not requiring the experts to update their reports prior to trial. 

In it's unreported (non-precedential) opinion, the Appellate Division found defendant's claims of bias by Judge Camp unfounded and unsupported by the record below.  They also found sound Judge Camp's decision and rationale for prohibiting the testimony of defendant's lay witnesses as these witnesses were only to provide testimony based on information provided by defendant, to which she had already provided her own live testimony.  Furthermore, Judge Camp allowed defendant to submit proffers as to these witnesses testimonies and allowed the proffers into the record without providing plaintiff the benefit of cross examination. 

Lastly, the Court noted that there is no requirement in the Court Rules that a trial judge interview children in a family matter or experts retained in a family must update their reports prior to trial.  As to the interview of the children, both parties' experts testified that at this point interviewing the children would be counterproductive as they had been through many years of extensive therapy related to this litigation.  The Court also noted that since the parties had privately retained their own experts in this matter, it was not incumbent upon the court to require those experts to submit updated reports.  If defendant felt that new pertinent information was available for her own expert to review, she could have had her expert update her report, which she did not do.

An interesting portion of the Appellate Division's decision noting Judge Camp's decision were the portions that related to the credibility of the parties upon their testimony and demeanor during the trial.  Whenever the scrutiny of the court is upon a litigant, judges are carefully observing demeanor and judging credibility.  In the midst of highly contentious trials, such as this one appeared to be, clients may forget the all too simple tenants of civility, however it is in their own best interest not to.

EDITOR'S NOTE:  This case evidences some of the absolute worst that can arise in family court cases.  There was a finding by the trial judge that the wife actively tried to alienate the children from their father.  There have been several recent posts on this blog regarding parental alienation.

In addition, it is rare that one sees that a parent's parenting time is supervised to protect that parent from wrongful allegations.  In this case, it appears that the alienation was so bad that allegations arose even when supervisors were present.  In this case, it appears as though the father's parenting time with the children was compromised for years.  The damage that this could seemingly cause to the relationship seems unthinkable.  Moreover, the legal and other costs associated with had to be staggering. 

It would appear that the cause of action for intentional infliction of emotional distress raised in the prior blog posts and recently approved by Judge Galipoli in Hudson County, appears as appropriate in this case as in any other.  It seems hard to imagine that the father here can ever get back what he has lost.  Should there not be some kind of monetary punishment here - an award of legal fees just does not seem to be sufficient.    Perhaps that will be an issue in the financial aspect of the case which was apparently not resolved.                                                                     ERIC S. SOLOTOFF

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In the recently published Appellate Division decision of J.A. v. A.T., the Court faced a complicated decision regarding whether to overturn the trial court's opinion as to which court, as between NJ and Greece had jurisdiction to decide custody of minor children.

In this complicated and seemingly tortured case's history, where three litigations where taking place at the same time, one in NJ, one in Greece and one in the Federal courts, it's difficult enough to keep track of the role each court should be playing and the primary goal of what is best for the children.

J.A. and A.T. were both born in Greece but naturalized as U.S. citizens.  They married and resided in NJ, where two of the children were born.  After four years of marriage, the parties decided to return to Greece, where they had a third child.  After living in Greece for approximately eight years, J.A.(father) returned to NJ with the two sons.  A.T. remained in Greece with their daughter.  Divergent stories begin at this point as A.T. claims that J.A. returned to NJ with the boys only for a short visit.  J.A. claims it was the family plan for him to relocate to NJ with the boys and that A.T. would later join them with their daughter.

After J.T. and the boys had been in NJ for nearly three months, A.T. filed an application in Greece seeking temporary custody of all three children.  The Greek tribunal held a hearing whereby J.A. was represented by a designated representative.  The Greek tribunal entered an Order granting temporary custody of all three children to A.T. 

J.A. claims that he was never served with this Order.  Several months after the Order was entered by the Greek tribunal, A.T. also filed a Complaint in Greece for divorce and custody.  She later also filed an action under the Hague Convention (International Child Abduction), which was two years later dismissed by consent of both parties.

Nearly one year after A.T. filed her applications in Greece, J.A. filed a Complaint for divorce in NJ and sought custody of all three children.  A.T. was served in Greece with a copy of this Complaint and responded by filing a Notice of Limited Appearance, seeking to stay or postpone J.A.'s Complaint and dismiss his custody application.  The NJ courts denied this application and found it had subject matter and personal jurisdiction over the divorce action.

The NJ court subsequently entered two additional Orders, which were also subject to A.T.'s appeal regarding payment of counsel and expert fees.  However, the published Appellate Division opinion focuses on the jurisdictional and custody aspects of the lower court's decision.

The matter eventually proceeded to trial in the NJ courts.  A.T. did not appear in NJ for trial, did not provide her testimony or any witnesses nor did she introduce any exhibits.  A.T.'s argument was based on the theory of comity, which argued that the NJ court had to defer to the earlier Greek order because J.A. had voluntarily submitted himself to the jurisdiction of the Greek tribunal by authorizing a designated representative to appear on his behalf.

Counsel for the parties agreed to allow J.A.'s custody expert's report into evidence in lieu of her testimony.  J.A. also testified, produced three witnesses on his behalf, and introduced evidence.  The trial court awarded sole legal custody to J.A.

On appeal, A.T. made several arguments as to the court's award of sole legal custody to J.A., centering around the main argument that the NJ court erred by not deferring to the jurisdiction of the Greek tribunal.

Pursuant to N.J.S.A. 2A:34-57(c), NJ courts are to give full faith and credit to child custody orders issued from foreign nations except when "the child custody law of a foreign country violates fundamental principles of human rights or does not base custody decisions on evaluation of the best interests of the child."  A.T.'s argument was that because the Greek tribunal was the first court to address the issue of custody of the children involved, that decision should be given deference. The Court in this opinion distinguished the general rule long adhered to "that the court which first acquires jurisdiction has precedence in the absence of special equities."  Sensient Colors v. Allstate Ins. Co., 193 N.J. 373, 386 (2008).  Of utmost importance in making determinations relating to custody of minor children is that the custody decision reached by the court be guided by the "best-interest-of-the-child" standard. 

In evaluating the initial opinion and order released by the Greek tribunal as to custody, the Appellate Division held, "[a]ssuming that these findings represent the Greek equivalent of a "best-interest-of-the-child" determination, they fall woefully short of the factors our Legislature has mandated that New Jersey courts consider in making custody determinations."  J.A. v. A.T., A-3003-07T4 at page 21.

Furthermore, the absence of a decision as to permanent custody of the children and an absence of the Greek tribunal's consideration of the statutory factors set forth by the NJ legislature as the guiding principles for a "best-interest-of-the-child" determination contravenes the public policy of NJ to safeguard the interests of children who are at the center of a custody dispute.  Those best interests are overriding.  Thus, the trial court's opinion as to custody was affirmed.

In its opinion, the Court noted that while it appeared as though J.A. was perhaps forum shopping, this too does not override the best interests determination the court must make.

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Jane Lessner,  a partner in our Philadelphia office and a contributor to our Pennsylvania Family Law Blog, wrote an excellent post entitled "MERRY ????? HAPPY????? HOLIDAY????" To view the full post, click here.

The point of the post, put much better by Jane than me, is that parents should not ruin the holidays for the children because of their hostility and selfishness.  We see it all of the time.  Motions or Orders to Show Cause (emergent applications) to resolve holidays.  The more parents can cooperate put conflict aside for their children, the better adjusted the children will be. 

Jennifer Weisberg Milner from our Princeton office wrote on this topic last year.  To read her Alert, click here.

Aside from being civil at the holidays, parents should also be civil at events where they will both be present (i.e. graduations, dance recitals, sporting events, bar mitzvahs, communions, confirmations, etc.)  If not, every future happy event could be filled with trepidation if not dread, wondering what the parents will do to ruin the child's happy day. 

Hopefully, parents will remember to put the children's best interests first at the holidays and always.

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Over the years, judges began to make numerous appointments to attempt to, if not rid the courts, at least create a buffer for parenting and visitation issues that arose daily/weekly/monthly in high conflict divorce and post-divorce matters.  Sometimes the professional was called a parent coordinator, other times it was a therapeutic monitor, a mediator, a parenting coach, etc.  The role was generally the same, that is, to present these issues to a neutral third party that had either a legal or mental health background, or both, to assist the parties work out the differences and in many instances, make recommendations if they could not. 

These appointments were being done even though there was no specific authority for the appointments in the Court Rules or statutes.  In April of 2007, the Supreme Court started a parent coordinator pilot program in four vicinages, Morris/Sussex, Bergen, Middlesex and Union. To see the Notice from the Supreme Court and the standard form of parent coordinator Order, click here.

The Court saw the program to serve the following purpose:  "A Parenting Coordinator is a qualified neutral person appointed by the court, or agreed to by the parties, to facilitate the resolution of day to day parenting issues that frequently arise within the context of family life when parents are separated. The court may appoint a Parenting Coordinator at any time during a case involving minor children after a parenting plan has been established when the parties cannot resolve these issues on their own.  The Parenting Coordinator’s goal is to aid parties in monitoring the existing parenting plan, reducing misunderstandings, clarifying priorities, exploring possibilities for compromise and developing methods of communication that promote collaboration in parenting. The Parenting Coordinator’s role is to facilitate decision making between the parties or make such recommendations, as may be appropriate, when the parties are unable to do so. One primary goal of the Parenting Coordinator is to empower parents to develop and utilize effective parenting skills so that they can resume the parenting and decision-making role without the need for outside intervention. The Parenting Coordinator should provide guidance and direction to the parties with the primary focus on the best interests of the child by reducing conflict and fostering sound decisions that aid positive child development."

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In a recent trial court opinion issued by the Superior Court in Hudson County, Judge Gallipoli recognized that parents in NJ may have a right to collect damages for intentional infliction of emotional distress when their relationships with their children are poisoned by former spouses or even grandparents who partake in alienating behaviors. 

In a November 21, 2008 trial court decision, the court recognized the right of one parent to sue another, as well as grandparents, for what is known as the intentional infliction of emotional distress.  In this particular case, the father sued the mother and maternal grandparents because they had alleged that the father sexually abused the children.  The suit alleges that the ex-wife and her parents began alienating the children from the father during the pre-divorce separation in 2006. The defendants allegedly told the children, court-appointed psychiatrists and law enforcement officials that the father was a sex addict and had molested the children in the past, the suit says.  It also says the children are afraid to sleep at their father's home because they have been told they are in danger of being sexually abused.

The wife and her parents denied the allegations and argued in motions to dismiss the suit for failure to state a claim that the Heart Balm Act had eliminated the cause of action of alienation of affection. They argued that the term "alienating the children" is what the complaint calls the alleged wrong.  Judge Gallipoli found that this claim was not a disguised claim for alienation of affections, which was banned in the state in 1935 by what is referred to as the Heart Balm Act.

This is the first time that a NJ Court has recognized the ability to bring such a claim.  A prior suit  was filed in the Morris County Superior Court but dismissed by Judge Rand on the grounds that the suit was nothing more than a disguised claim for alienation of affections.  Noting Judge Rand's opinion in his own, Judge Gallipoli respectfully disagreed with Judge Rand's interpretation of the decisional law in this state and found that a claim existed for these types of behaviors.  Since they are both trial court judges, Judge Rand's opinion was not binding upon Judge Gallipoli.  Judge Gallipoli noted that the father would have to file an application in the family part seeking relief, however his claims against the maternal grandparents would proceed in the law division.

The real question remains as to how the Appellate Division and perhaps even the state Supreme Court will view claims such as these. 

EDITOR'S NOTE:  It seems contrary to notions of judicial economy, mandatory joiner and the entire controversy doctrine that the claims against the mother and her parents would be handled in separate venues. In addition, while there is precedent to bring tort actions related to a divorce in the family part, a party may have a right to a jury on these issues and the cases are often severed and sent back to the law division anyway. 

The bigger question is how a court should handle these claims in a post-judgment situation where there is not an ongoing matter and ultimate trial date pending.  While court's can order plenary hearings post-judgment, it seems that when these issues arise post judgment, the better place for them may be in the law division. 

Also, the theory here that makes the claim viable is not that there has been an alienation of affections, but that a person's intentional act has harmed another, where the only possible remedy for same may be money.   ERIC S. SOLOTOFF

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New Jersey Courts are required to strictly apply procedural safeguards when a child’s custody is at stake due to the substantial impact that a custody decision has on the parent-child relationship. A review of these safeguards is warranted in light of the Appellate Division’s recent decision in In the Matter of K.S.H., where it reversed a trial court’s custody Order because it found the existence of a genuine dispute requiring the Court to provide the parties’ with prior notice of its intended action to change custody and to conduct an evidentiary hearing on the issue.

A lengthy procedural history preceded the events that are at the core of this discussion involving several attempts by DYFS and a child’s Law Guardian to have physical custody of the child removed from his mother based on allegations of neglect. Ultimately, a trial court in 2007 entered an order directing that the child be removed from the mother and that DYFS be granted physical custody because it deemed the mother to have abrogated her responsibilities as the child’s caretaker and violated related court orders and directives. Of import here was the decision of another trial judge in 2008 to reject DYFS’s permanency plan to terminate parental rights followed by adoption, granted visitation to the grandmother, and ordered that physical custody be returned to the mother all without providing notice to the parties of its intent to change custody. DYFS and the child’s Law Guardian were granted leave to appeal the second trial judge’s findings, arguing that the second trial judge erred by ordering the return of the child to the mother’s custody without having provided prior notice to the parties and without conducting an evidentiary hearing regarding the custody change

In agreeing with DYFS and the Law Guardian, the Appellate Division reiterated the need for a decision involving custody to be based on evidence admitted during a hearing held on the record with all documentary exhibits considered by the court clearly identified for appellate review and with testimonial evidence presented through witnesses who are under oath and subject to cross-examination.  

The Appellate Division found that the trial judge violated basic rules of trial practice and failed to provide a complete record for appeal because the order returning custody was premised upon a mere conference between the court, DYFS’s attorney, the Law Guardian, the mother on her own behalf, and an unidentified DYFS caseworker present in the courtroom at the time. There was no competent evidence supporting the decision – no witnesses were identified, no documents were admitted into evidence, there was no attempt to exclude inadmissible hearsay, and the trial court relied upon reports that had not been admitted into evidence.   As a result, the order returning custody was vacated and the matter remanded for an evidentiary hearing.

As set forth in another recent post in this Blog, the Appellate Division will not hesitate to reverse and remand a decision of a trial judge made without application of necessary procedural safeguards, including the conducting of a plenary hearing, especially when the custody of a child is at stake.

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In some cases, either parties will agree or a court will Order the payment for a nanny.  In fact, this is typically in the nature of work related child care which is something that parents are typically required to share the costs of in accordance to their incomes under the Child Support Guidelines. 

A question that is more interesting is for how long must we pay for a nanny.  In hign income cases, perhaps this is less of an issue because it becomes more of a lifestyle issue than work related child care.  In fact, in many cases like that, there is a nanny or nannies even when one parent does not work outside of the home.  That is why I say it is more of a lifestyle issue.

What happens when there is a nanny in a garden variety case where the resources are more limited?   In an unreported Appellate Division case released on November 7, 2008 entitled Herega v. Figueroa that issue was addressed to a certain extent. To see the full text of the case, click here.

In this case, it appears as though the father had custody of the children.  At time of the divorce, both children were not in school full time.  As such, recgonizing a need for assistance, the wife agreed to pay for half of the nanny.

However, the current litigation stems from her motion to cease contributing to the nanny among other things.  There were two major rationales given.  First, she alleged that the father and the nanny were now a romantic couple - indeed sharing the same bedroom.  Second, since the kids were now 6 and 9 and in school full time, she asserted that there was no need for a full time nanny.  In fact, their school offered low cost before and after care.  The husband denied that there was a relationship and otherwise opposed the motion.  The trial court denied the motion.

The Appellate Division reversed and remanded the matter for a plenary hearing (trial) on the issue of whether there was a relationship between the nanny and the husband.  Further, the hearing was to address whether the nanny was still needed given the maturation of the children and the availablity of after care at school.

While not reported, this case remains interesting for the above reasons.  In addition, it is another example of the Appellate Division reminding trial judges that plenary hearings are required when there are important factual issues in dispute.

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Jane Lessner, a partner in our Philadelphia office, wrote an excellent post entitled "What to Tell Your Custody Lawyer" on the firm's Pennsylvania Family Law  blog.

To read the full text of Jane's Blog entry, click here.

EDITOR'S NOTE:  Previously I blogged on "How to Prepare for a Custody Evaluation."  To view that post, click here.  We also have many other posts and custody and visitation/parenting time issue which can be viewed by clicking on the proper link under the "Topics" menu on the right side of the blog page.    Since we update our blog several times per week,  please check back often  for new entries.  Eric S. Solotoff

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Can an act of domestic violence by one parent against the other constitute sufficient “changed circumstance” to warrant a Court’s re-examination of an existing custodial arrangement? New Jersey law requires that a party seeking to modify a custody arrangement first establish the existence of such “changed circumstance” that affect the welfare of the child involved. Only after proving this threshold burden will a Court engage in a “best interest” of the child analysis to determine a custody award. The best interest analysis is based on the 14 factors set forth in N.J.S.A. 9:2-4.

Affirming a trial court’s order awarding primary residential custody of the parties’ nine-year old daughter to the plaintiff father, the Appellate Division in Chen v. Chen recently concluded that the mother’s act of driving over the father’s foot and dragging him for a few feet as he held onto the car in the presence of the daughter constituted a sufficient “changed circumstance” to trigger a “best interest” analysis. The father had filed a complaint after the incident under the Prevention of Domestic Violence Act (“PDVA”), N.J.S.A. 2C:15 to -35, resulting in the issuance of a Temporary Restraining Order wherein custody of the child was temporarily transferred to the father. A Final Restraining Order was subsequently entered maintaining the custody arrangement pending a full custody evaluation and hearing that ultimately resulted in the father’s designation as the primary residential custodian. 

In its affirmance, the Appellate Division rejected for three reasons the mother’s argument that the act of domestic violence could not constitute changed circumstances because the child was not physically subjected to the violence. First, the Court generally surmised that, “It seems obvious to us that domestic violence committed in the presence of a minor inherently implicates the child’s health, safety and welfare.” Next, the Court relied on the terms of the PDVA, which presumes that “the best interests of the child are served by an award of custody to the non-abusive parent” when determining temporary custody following an act of violence. Third, it rationalized that, because N.J.S.A. 9:2-4 deems this an act of domestic violence is a “critical factor” in determining custody, it, by correlation, also suffices to establish changed circumstances.  

The Appellate Division also affirmed the trial court’s best interest analysis based on proof of the mother’s domestic violence; her use of a wooden spoon to punish the child; her inflexible adherence to the parenting schedule; her failure to timely inform the father that she had relocated to New Jersey; and the child’s improved developmental growth and resolution of behavioral problems that manifested themselves while she was with her mother. Notably, the Court also rejected the mother’s charge of cultural bias stemming from the trial court’s conclusion that the values instilled by the father would continue to aid in the child’s development in a “twenty-first century United States,” since the trial court’s analysis was deemed proper and objective under 9:2-4.

Parents should keep their hostilities towards each other in check, as the Appellate Divisions’ opinion suggests that any act of domestic violence towards the other in front of the child will likely fulfill the changed circumstances threshold should a party seek to modify a custody arrangement. Parties should also be careful to abide by the terms of the PSA regarding custody, as the trial court (although not addressed by the Appellate Division) noted that even the mother’s failure to notify the father of her relocation to New Jersey with the child pursuant to the terms of the PSA also constituted changed circumstances justifying a best interest analysis.

EDITOR'S NOTE:  People should not forget that upon the entry of a final restraining order, there is a legal presumption that the victim should get custody.  Like all presumptions, this is rebuttable.  This presumption does not extend to civil restraints (i.e. a Consent Order in the matrimonial matter that is similar to a restraining order but is not under the domestic violence docket and not punishable by criminal contempt if violated).  That said, if there are true custody issues and a domestic violence matter arises, one must think long and hard about whether to settle the matter and enter into civil restraints.  - Eric S. Solotoff

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What happens after a divorce when two parents cannot seem to agree on parenting time or nearly anything else related to their child(ren)?  Individuals often going through a divorce will ask, "How much longer do I have to deal with him/her?"  When children are involved, the real answer is forever!

While a marriage may not always last forever, the job of being a parent does.  One of the hardest things that a person can face during a divorce (and after) is negotiating and navigating the pitfalls that can often occur when parents are forced to see their former spouse's when dropping off or picking up the child(ren) of the marriage.  Too often parents cannot put their differences aside and act in the “best interest of the child(ren)”,  which includes communicating with the child’s other parent.  In order to facilitate those difficult relationships judges will often appoint a parenting coordinator (a neutral third party, often a therapist) to help facilitate a schedule that can work for both parents, while acting in the “best interest of the child.”

In the recent unpublished appellate decision Menzel v. Davis, the parties exemplify the bad conduct that can occur when parents  cannot agree on a post-divorce parenting schedule.  Menzel traces four years of discord and court proceedings between the parents of a seven year old child (yes – the parties have a minimum of another 11 years to deal with one another).  The nexus of the problem is that the parents cannot agree on a schedule and each time they see one another an incident occurs.  In order to minimize the harm to the child, the court appointed parenting coordinator reduced the amount of contact and transfers by changing the parenting schedule.  Dad was unhappy with the new schedule proposed by the parenting coordinator.  In any event, the trial judge subsequently incorporated the parenting coordinator's recommendations.  Dad then appealed the judge’s decision, alleging that the judge delegated its authority to the parenting coordinator and failed to conduct a “plenary hearing” on the matter.   The Appellate Court denied dad's application, holding that the trial court properly applied the "best interests of the child" standard considering the parties' history of conflict and inability to agree.

This case is an example of how parties in a divorce should conduct themselves.  It is sound advice to clients that it is imperative to act in the best interest of the child(ren) at all times, especially when interaction with your “ex” cannot be avoided.   A court is always going to look at how the parties interact with one another when it comes to the child(ren) and clients should always take the high road, no matter how difficult.  If parties cannot make parenting decisions, including scheduling amongst themselves, the judge has discretion to make these decisions for them or appoint a parent coordinator to make recommendations.  Thus, when clients take the high road they are not only helping their child deal with divorce better but they are also helping themselves.

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What happens when a parent leaves the state and relocates to another state?  Which state has decision making power over the issue of custody?

The recently issued unpublished Appellate Division decision  of Hinton-Lynch v. Horton dealt with the issue of whether New Jersey courts had decision making power regarding custody of a child who's home state (state of habitual residence) had been determined to be Georgia.

The child in the above case was born in NJ, but moved to Georgia when she was five months old.  The courts of Georgia issued Orders declaring mother the custodial parent and addressing father's visitation.  Several years later, mother returned to NJ and filed a motion here regarding father's visitation.  Ultimately that motion was dismissed because of mother's failure to appear.  Thereafter, father filed a motion in the NJ courts seeking to transfer custody to him.  The court scheduled a hearing and mother failed to appear.  The NJ court then granted father's application and transferred custody to him.  Mother appealed the trial court's decision, claiming among other things, that NJ courts did not have the power to make any modifications to custody as Georgia courts retained this power.

Issues of interstate custody are governed by the UCCJEA ("Uniform Child Custody Jurisdiction and Enforcement Act"), as codified in N.J.S.A. 2A: 34-53 to 95, which became effective December 13, 2004.  Prior thereto, this issue was governed by the UCCJA ("Uniform Child Custody Jurisdiction Act") (N.J.S.A. 2A: 34-28 to 42).

The UCCJEA makes it clear that in order for a Court of this state to have decision making power regarding custody of a child, a court of another state cannot have decision making power over that child.  Therefore, if another state has entered an Order regarding custody and a Complaint for Custody has not been filed in NJ and the other state has not relinquished its authority over that child, NJ courts are barred from altering the decision of another court.  Note, however, that this does not prevent a NJ court from enforcing that Order once same is registered in NJ.

In the case cited above, it came down to an issue of timing.  The Georgia court relinquished its decision making power over this child after the NJ court had awarded father the transfer of custody.  Careful interpretation of the UCCJEA indicates that "any relinquishment of jurisdiction by the state with exclusive jurisdiction must occur before the other state assumes jurisdiction."  Hinton-Lynch v. Horton at page 8. 

EDITORS NOTE:  While this case was not reported, thus not precedential, it provides a good reminder of the concept of continuing exclusive jurisdiction that really is one of the bedrock principles in the UCCJEA which has been enacted in one form or another in almost every if not every state.  Under the prior law, what usually occurred was that once a child's home state had changed for a period of more than 6 months, it was very easy to change jurisdiction to the new state.                     Eric S. Solotoff

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A very common question asked by divorced parents is whether the custodial parent has the right to move with the child either to another state (interstate) or to another location within New Jersey (intrastate).   In light of these questions, a review of the applicable legal standards for interstate and intrastate moves should provide some guidance.

INTERSTATE MOVE

N.J.S.A. 9:2-2 is designed to protect the parenting relationship between a child and a noncustodial parent when the custodial parent seeks to move to another state. In light of 9:2-2, the New Jersey Supreme Court in its seminal decision of Baures v. Lewis, 167 N.J. 91 (2001) developed a set of 12 factors to consider when reviewing a custodial parent’s removal application (which have also been applied to an international move).   These factors are:

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 that require accommodation and whether such accommodation or its equivalent is available in the new location;

6.       Whether a visitation and communication schedule can be developed that will allow the noncustodial 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 noncustodial 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 noncustodial parent has the ability to relocate; and

12.   Any other factor bearing on the child’s interest.

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Just recently a judge in New Zealand declared a 9 year old girl a ward of the court so that he could change her name during her parents' custody battle.  The Judge stated that by naming their child "Tulula does the Hula from Hawaii" the parents "made [sic] a fool of the child and set [sic] her up with a social disability and handicap, unnecessarily." 

In New Jersey, our highest court has said that in contested cases there is a strong presumption that the surname selected for a child by the custodial parent is consistent with the child's best interest.  This presumption may be rebutted by evidence which shows that a different surname would better serve child's best interest.  However, the noncustodial parent bears the burden of demonstrating, by a preponderance of the evidence, that the chosen surname is not in the best interests of child. 

The New Jersey case centered around a father who went to the court in an attempt to have the child's surname changed to match that of his own.  This happened after the fact as the parents of this child were not wed and initially, the father contested paternity of the child.  Historically, the societal norm has been that children bear the surname of their father.  "The practice of children assuming the father's surname is traceable to the English medieval property system in which the husband controlled all marital property.  That preference continued in America, reflecting not only the long-standing English tradition but also the societal distinctions in the status of men and women.  Until the latter part of this century, the assumption that children would bear their father's surnames was a matter of common understanding and the preference for paternal surnames was rarely challenged.  But the historical justifications that once supported a tradition in the law for children to bear paternal surnames have been overtaken by society's recognition of full legal equality for women, an equality that is incompatible with continued recognition of a presumption that children must bear their father's surname.  That presumption shall no longer apply in this State."  Gubernat v. Deremer, 140 N.J. 120, 122-123 (1995).  In recent years, we have seen a growing change in this trend as more and more children are being given their mother's surname or at times, a combination of both surnames. 

New Jersey courts have not yet attempted to intervene in a parent's personal selection of a name for their child as New Zealand courts have.  However, with the ever increasing trend of 'unique' names seen in our society,  who knows if we are headed in that direction?

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A lot of times clients come in saying that they want full or sole custody of the children.  This inevitably leads to a discussion regarding the distinctions between legal and residential custody.

Legal custody is essentially involves decisions regarding children's health, education, religion and general welfare.  With sole legal custody, one parent can make all of the decisions regarding these matters, though they have to consult the other parent in most cases.  With joint legal custody, the parents must consult and attempt to agree. 

Residential custody is where the child lives.  Some catch phrases often used are Parent of Primary Residence (or PPR) and Parent of Alternate Residence (or PAR).  Surprisingly enough, the official definitions for these terms come from the Child Support Guidelines.  Simply put, the PPR is the parent with whom the children reside more than 50% of the time. 

Now, with regard to the question as to whether it is worth fighting about the issue of sole vs. joint legal custody.  In practice, I have found that even in all but the worst of situations, must custody experts recommend and most judges order joint legal custody.  This is even though there is case law that says that joint legal custody may not be appropriate if the parties evidence no ability to communicate.  Of course, if it is the custodial parent that wont cooperate, it seems unfair to reward that parent with sole custody. 

In addition, there is a presumption in the case law that the custodial parent gets the final say in the event of a deadlock between the parents, even when there is joint legal custody.  This has come up time and again in reported decisions, including in cases regarding religious upbringing and of all things, a nose job. 

So, if the experts and courts are usually going to recommend joint legal custody, a litigant must investigate whether it is really worth it to fight for sole custody  Similarly, if the PPR has the legal presumption anyway, one must really consider whether it is worth the fight. 

This is not to say that it is not worth fighting about custody.  The real fight in most cases, if there is a bona fide dispute,  is and should be who is the PPR and how much parenting time the other parent enjoys. 

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The Appellate Division recently issued a reminder in Ort v. Ort, A-3535-06T1 (App. Div. June 17, 2008) that, unlike a parenting time coordinator, a custody and visitation mediator may only “assist the parties in resolving disputes as to major decisions regarding the children,” and “may not make any recommendation to the court respecting custody or visitation.” 

At issue was a father’s post-judgment motion for a change in the method of delivery of letters, cards and gifts to his eight unemancipated children. During the initial divorce litigation in 2003, the Court had appointed a custody and visitation mediator. After the school attended by one of the children indicated in 2006 that it would longer accept items sent by the father to the child at the child’s school, the father consulted with the previously appointed mediator who, without discussing the matter with either the former wife or children, recommended a neutral site for distribution of the items for all of the unemancipated children. The father filed a motion requesting same, which was denied by the Court. The father than submitted a more detailed letter from the mediator explaining why he recommended the use of a neutral site. After the Trial Court reaffirmed the motion denial on reconsideration, the father filed an appeal based, in part, on the judge’s alleged failure to consider the mediator’s letter.

Affirming the Trial Court’s ruling, the Appellate Division added as a potent afterthought that the Trial Court mistakenly referred to the mediator in rendering its decision as a “parenting coordinator.” The Appellate Division then cogently distinguished a coordinator from a mediator, indicating that the mediator, unlike the coordinator, may not make custody or visitation recommendations to the court. It also made clear that, even if the mediator there was actually a coordinator, that he had not engaged in best practices by making recommendations without having previously consulting with both parents and the attorney for the children.

Ort serves as a refresher on the core principle that a custody and parenting time mediator must try to resolve outstanding issues between the parties by maintaining neutral throughout the course of the mediation process. This is accomplished by ensuring complete confidentiality and instilling in the process a sense of what the Appellate Division has previously referred to as “trust and confidence.” For a mediator to make recommendations as that seen in Ort not only poses an “inherent conflict” by going beyond the bounds of the mediator’s essential role, but it also demonstrates a tainted bias in favor of one party over the other – in other words, exactly what a mediator should not be doing.    

As the Appellate Division said in Isaacson v. Isaacson, 348 N.J. Super. 560, 578 (App. Div. 2002), mediators are “critical to the administration of justice in the Family Part.” The same can obviously be said of parenting coordinators upon whose recommendations judges greatly rely. It is therefore vital that these roles remain separate so that each may perform its own role unclouded by the other’s obligations towards facilitating an effective resolution for the parties involved.

To read the Ort case, click here.

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Judy McIntire Springer, a partner in our Philadelphia office, wrote a terrific post on litigating Hague Convention claims for the Legal Intelligencer Blog.   The link below is to the second part of her article.

The Hague Convention is an international treaty that many countries have ratified, including the United States. The treaty prohibits parents from wrongfully removing and/or retaining a child from his or her home country.

To read the full text of the post, click here.

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In a recently published Superior Court opinion, a Monmouth county judge found that unauthorized discovery in a post judgment matter is inadmissible and against the rules of discovery in a matrimonial matter.  In the matter of Welch v. Welch, the defendant filed a post judgment application for a change of custody of the parties' minor child.  His application was based upon his concerns for the plaintiff/mother's mental well being and hence ability to properly care for the parties' child.  Two days prior to filing his motion seeking a change in custody, defendant's attorney issued a Subpoena Duces Tecum and Ad Testificandum upon the Marlboro Township police department.  This subpoena requested copies of all documentation pertaining to incidents related to the plaintiff as well as requesting the appearance of an officer on the return date of the motion to possibly give testimony.  Plaintiff's counsel filed a motion to prohibit the release of these documents, alleging the request was made in violation of the Court Rules and also sought sanctions against defendant and his attorney as well as counsel fees.

Ultimately, the court refused to consider any of the documents turned over by the police department asserting that the documents had been obtained in violation of court rules.  The court also assessed counsel fees against the defendant but did not issue sanctions.

The court based its reasoning, in part, upon the notion that discovery is limited in post judgment applications.  The court found that without the scheduling of a plenary hearing or any further proceedings, defendant's subpoena was unnecessary, harassing and impermissible.  The court went on to state that "post-judgment matrimonial motions are summary in nature and are resolved with little or no discovery." 

What is troubling about this trial court decision is the fact that in contested post judgment custody matters, how can a court ignore the admissibility of relevant evidence? Does that not contradict the court's main objective, which is the child's best interest? What about the court's parens patriae duty to protect children?

The decision appears to be inconsistent with the  the Appellate Division's 2002 holding in Tartaglia v. Paine Webber, Inc., which held that illegally obtained evidence in a civil matter  was admissible (though a party could be sanctioned for illegally obtaining it).  On a final note, police records are public records.  Is the court's finding in Welch punitive, insomuch as defendant was assessed counsel fees for issuing a subpoena for the release of what is public record.

It should be noted that the finding in Welch pertains only to post judgment matters.  Discovery in pre-trial matrimonial cases remains broad (See R. 5:5-1).  It would not be surprising if this case is appealed. 

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This week in an opinion published by the Appellate Division, the Court  held that parties in a matrimonial action cannot agree to binding, non-appealable arbitration of child custody and parenting time issues.  Any such agreement would violate the Court's parens patriae obligation to protect the best interests of the children.

In the matter of Fawzy v. Fawzy,  the parties were scheduled for a trial date in early 2007.  When they appeared in Court on this date, after several hours of discussion, they agreed to submit all issues in contest to an arbitrator for binding, final, non-appealable arbitration pursuant to this state's statute governing arbitration (N.J.S.A. 2A:23B1 to 32).  They went before the judge that same day and placed this agreement on the record.  The judge advised them that the arbitrator's decision would be final and could not be changed.  The parties agreed and went forward.

The parties selected an arbitrator and began the process.  After several days into the proceeding, Mr. Fawzy sensed things were not going well for him and filed an emergent application with the Court to restrain the arbitrator from making a custody and parenting time award.  His argument was that these issues could not be arbitrated as a matter of law.  The trial judge denied his application.

Shortly thereafter the arbitrator issued a custody and parenting time award in Ms. Fawzy's favor.  Mr. Fawzy retained new counsel and filed a second emergent application seeking to vacate the arbitration award, disqualify the arbitrator, restrain the arbitrator from any further participation, require a de novo review of the reward and stay the award pending appeal.  The trial judge once again denied his application and entered an amended judgment of divorce confirming the arbitrator's award.  Mr. Fawzy then filed his appeal.

On appeal, Mr. Fawzy argued that as a matter of law, parties cannot bargain away the Court's obligation to review the best interests of the children by agreeing to binding arbitration of custody issues.  The Court noted that it was troubled by the fact that Mr. Fawzy did not make any claims that the award would cause harm to his children or in any way endanger their health, safety or welfare.  Despite that concern, the Court agrees that parties to a matrimonial matter cannot enter into an agreement to submit custody issues to final, binding, non-appealable arbitration.

While our courts have endorsed arbitration as a favored remedy and have encouraged the use of various alternative dispute resolution devices, the question of whether child custody could be submitted to final, binding arbitration has not before been addressed by the Court.  The Court has favored the use of final, binding arbitration for alimony disputes as seen in the 1984 opinion of Faherty v. Faherty, however they did not address the issue of custody directly at that time.

In conclusion, the opinion notes that while the development of a more workable custody arbitration process may be more beneficial to both the parties and the children involved in a matrimonial action, the Court ultimately must defer to their traditional parens patriae role.  That role requires the trial court to determine the best interests of the children regardless of any agreement for arbitration as to custody and parenting time.

While binding arbitration is a viable and useful alternative to litigation for the purpose of resolving financial issues related to equitable distribution and alimony, issues concerning and relating to the best interests of a child cannot be submitted to binding, final arbitration.  When considering arbitration as an alternative to traditional litigation, make mental note of its restrictions.

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Judy McIntire Springer, a partner in our Philadelphia office, wrote a terrific post on litigating Hague Convention claims for the Legal Intelligencer Blog.

The Hague Convention is an international treaty that many countries have ratified, including the United States. The treaty prohibits parents from wrongfully removing and/or retaining a child from his or her home country.

To read the full text of the post, click here.

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Custody evaluations are very important in determining child custody and access during contested divorce proceedings. Divorce courts give considerable weight to the recommendations of the evaluator. In addition, the participates are usually extremely nervous about the process.

As such, before an evaluation, I try to meet with my clients to let them know what to expect.  I also try to give them some basic guidelines as to how to act. 

Below are some guidelines that will assist a person to prepare for your custody evaluation with the expectation of ending your custody battle.

• Arrive on time at your custody evaluation interview.
• Dress neatly and conservatively.
• Be honest. The custody evaluator will likely check out your statements with collaterals and/or other sources.
• If the custody evaluator chooses to use psychological testing, ABSOLUTELY answer honestly. The tests are designed to detect defensiveness and lies and unless you are an expert in psychometric testing, you are unlikely to fool them.
• Be sincere. The custody evaluator can usually detect over embellishment and insincerity.
• It's all right to be nervous; most people are.
• It's all right to cry and/or show emotion; many people do.
• Answer questions directly and to the point.
• Make sure you pay attention to what the evaluator is asking.
• Take your time when answering a question. If you do not understand what is being asked, feel free to ask the evaluator to explain what he/she means.
• If the custody evaluator asks that you provide additional documentation, do so as promptly as possible or communicate any concerns about getting it.
• If you provide the custody evaluator with names of collateral contacts, it is a good idea to inform them in advance that they may be contacted so that they can prepare to speak on your behalf.
• If the custody evaluator is observing you with your child(ren), be attentive to their needs and focus on their interests and not yours.
• Present yourself as being reasonable and placing the concerns of your child(ren) above all.
• Relax and let the best aspects of your personality come out (patience, humor, concern for the child(ren)’s well being, etc.)

The following is a list of things to avoid doing during a custody evaluation
• DO NOT speak badly of your spouse/partner unless the custody evaluator asks you to comment on what you perceive to be the problems between you.
• DO not make threatening comments about your spouse/partner or anyone else to the evaluator.
• DO NOT harass the custody evaluator with phone calls.
• DO NOT drop by the evaluator's office without an appointment.
• DO NOT call the custody evaluator to see if the report is completed.
• DO NOT prep your child(ren) to say negative things about their other parent. The custody evaluator has ways of telling if this has happened.
• Custody evaluators recognize the stress people are under during this process and take this into account when assessing family members.
• If you are feeling stressed and anxious, it is all right to acknowledge it and allow the custody evaluator to help allay some of your concerns.

The following is a list of things that the evaluator is looking for:
• Empathy (the ability to understand what the children are feeling and the willingness to react appropriately)
• Setting appropriate boundaries
• Proper environment and proper care providers
• A loving relationship between you and your child(ren)
• Behavior supportive of the relationship between the child(ren) and the other parent
• Behavior which demonstrates that you are striving to keep the child(ren) insulated from the conflict
• Lack of hostility toward your spouse. (Speak of past problems in a matter-of-fact way, indicating that you these things behind you)

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Charles Meyer, a partner in our Montgomery County, Pennsylvania office, wrote a terrific post on High Conflict Custody matters on the Pennsylvania Family Law Blog that he edits.  The principles in this post apply to New Jersey cases.

To see the post, click here.  To view the Pennsylvania Family Law Blog, click here or at the link to the right of the page. 

I often tell my clients, that though they may wish to stoop to their spouse's level, that it just isn't worth it and certainly not in the children's best interests.  Moreover, if the case is going to be litigated, I want my clients to be "pure as the driven snow" with regard to these issues. 

That said, I think that each client going through a custody case should keep a notebook documenting things as they go on.  Moreover, save and print provocative emails and text messages and make tape recordings of voice mail messages for future use.  As to recordings of conversations, given wiretap and privacy issues, those will be discussed in more detail in a future blog post, and you still must proceed with care. 

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I have eagerly awaited the news accounts each day of the ongoing saga of the former first family of the State of New Jersey. 

While by all accounts, there is some exceptional lawyering going on, one cannot help to think that this is a case that should have been settled or that one or more of the parties is using the trial to settle personal vendettas. 

Thankfully for the parties' child, they settled custody and parenting issues.  However, as the judge admonished at points in the case, their daughter is going to be able to read all about her parents' divorce by just typing hers and their names into Google.  And for what?

 While their marital lifestyle was perhaps unusual from the common folk, in both financial and other ways, at the end of the day, this was a short marriage. The testimony from both as reported suggests that there was no savings and few assets.  The disputes as to alimony seem absurd because even if there was a viable claim, how much could it have been for.  The legal and experts fees had to have exceeded the claim. 

Again, I don't know all of the facts and only know what I read.  However, I always tell my clients that you don't want to spend $10 in legal fees to get $5 back.  I wonder at the end of the day whether the battling McGreeveys will have done just that.  If so, that is good for no one - even the lawyers.  Moreover, I hope that the trial was not a vehicle for either to get the last of their 15 minutes of fame while at the same time, preventing parties with real issues from getting their day in court.

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One of my pet peeves is litigants and lawyers that use custody and parenting time issues as a bargaining chip to get better a better financial settlement.  I have several matters ongoing now where that is occurring.

In a recent case, both in negotiations between the parties directly, and in negotiations with opposing counsel, we were told that the proposed resolution of a hotly contested parenting time issue for far less than had been demanded was fine but only as part of a global settlement including the finances.  Put another way, they were only going to resolve visitation if my client made financial concessions.  The bad faith of the tactic was evident.

In fact,  in New Jersey, there is really little interplay between the parenting time and the finances other than some child support adjustments made for the number of overnight visits.  This does not even really come into play in high income cases that exceed the Child Support Guidelines.  That said, since parenting time and custody issues are based upon the best interests of the children, most would agree that you should not negotiate these issues based upon money.  However, it comes up all to frequently, often to the detriment of the children and at a great financial and emotional cost to the parties. 

The system in New Jersey is set up to try to smoke out and resolve these bogus parenting and custody issues early in the case.  At the outset of a case, the parties are required to attend a Parent Education program given by each county.  After that, the parties are required to go to mandatory custody and parenting time mediation, usually with Court staff, unless there is a domestic violence restraining order in effect.  Only then, do you get into custody and parenting evaluations with experts, etc.  Also, this is all completed at the outset of the process, long before discovery is over, and often before it is even started in earnest.

A familiar scenario of the bad faith custody dispute that I have seen a fair amount as of late is as follows:  one parent is the traditional stay at home parent - the other is the Type A executive type that leaves the home at 6 a.m. and doesn't return home until 7 p.m.  Sometimes, that person travels substantially for business as well.  The stay at home parent has been responsible for all medical and dental visits, haircuts, play dates, teacher conferences, etc. The divorce starts and the  parent that works out of the home demands either custody or a 50-50 parenting arrangement. 

In these cases, absent mental health issues or other extraneous circumstances, the demand is one that is typically made either because there are control issues or as a bargaining chip.  That is not to say that there are not times where this parent should not get custody, because there are and I have gotten custody for these types of parents. 

That said, when these issues are made for bargaining, if the matter does not settle in mediation, the next step is custody evaluations by a forensic psychologist. If the parties cannot agree on a joint expert or the Court does not appoint one expert, there can be two experts.  The children are now made part of the process and have to meet with the expert several times.  Their teachers may be contacted.  Their doctors and therapists may be contacted.  The parties' therapists may be contacted.  Other collateral sources may be contacted (neighbors, coaches, family members, etc.)  The price to pay on the family, aside from the legal and expert fees, is high - especially when the issue is for bargaining only.

Don't get me wrong.  I understand that there are good faith custody and parenting disputes that require this process.  While the toll is still the same, that may be unavoidable.  However, if the issue is not a "real" one, I would hope that people would not use it improperly as a bargaining chip.  The collateral damage may be great.

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In an unreported decision of the Appellate Division on April 17, 2008 in the case of Swicinski v. Maul, the Court held that passage of time alone was a sufficient change of circumstance to warrant a modification of the father's parenting time.

In this case, the parties were never married. In 2003, when the child was six weeks old, the Court entered an Order granting the parties joint legal custody, designating the mother as primary residential custodian and granting the father parenting time every Sunday between 10:00 a.m. and 6:00 p.m., and between 6:00 p.m. every Monday through 6:00 p.m. the next day. Because that schedule was cumbersome and involved four round-trips in each three-day period, the parties voluntarily modified that schedule so that father's parenting time would begin on Sunday morning and conclude on Monday at 6:00 p.m.

In 2007, the father sought additional parenting time and it was opposed by the mother.  The trial court granted the additional time and the Appellate Division affirmed. 

The trial court noted and the Appellate Division agreed that  parenting time for an infant should be structured differently than parenting time with a 4-year old and that that alone was a change of circumstancee.  The father also had other changes in his life - a new wife, a new home and greater stability.

The trial court also noted that custody and parenting time issues are always subject to review.  That said, in practce, typically, a change of circumstances is necesseary to obtain a modification. 

What should be taken from this case is that the needs of a child differ depending on their ages.  Parenting time that may be appropriate for an infant or toddler, is not necessarily appropriate for an older child.  As such, just because parenting time is settled does not mean that it can never change with time.  This case confirms a common sense argument many have been making for some time.

For a link to the case, click here.

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