NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Domestic Violence, Prenuptial Agreements, Child Custody

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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