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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4. the history of domestic violence, if any;

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

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

7. the needs of the child;

8. the stability of the home environment offered;

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

10. the fitness of the parents;

11. the geographical proximity of the parents' homes;

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

13. the parents' employment responsibilities;

14. and the age and number of the children.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When the matter is decided, we will report back.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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As a divorce lawyer, I follow with interest the high profile divorces when they are in the news.  There were actually three in yesterday and  today's papers, John & Kate, Christie Brinkley and Peter Cooke and Stephanie Seymour. 

If the news accounts of the allegations are correct, then the news of the last few days included one party wiping out a large bank account and leaving the other with little cash; the other party in the same case not allowing the spouse to share in the children's birthday party; failure to timely turn over a passport so that a child could attend a school trip being chaperoned by the other parent; and the destruction of art work in the family home.  A few weeks ago, one of the combatants was quoted about how he "despised" the other spouse.  Even if you think that, why do you say it, especially in the press, no less.

These kind of things happen every day in divorces that don't make the news.  That does not make it right. The process is difficult enough for the parties and their children without having to deal with aberrant, aggressive or hateful conduct.  When it clearly happens, the conduct usually blows up in the face of the perpetrator.

Having represented a few professional athletes and celebrities or their spouses in the past, it is fascinating how these things play out in the press. I wonder, with disbelief, especially now that the Internet provides a record of everything, why certain dirty laundry is aired in such a public way where the kids (or their friend, classmates, etc.) may be able to see it either now or in the future. Some of this may be unavoidable because most divorce filings are public records available for anyone to see. That said, one wonders if there is not a better way.  Is the prolonging of the 15 minutes of fame worth it?. 
 

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

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

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

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

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

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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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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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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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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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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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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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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 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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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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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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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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While statistically, 99% of all cases settle, some cases take longer than others to get there.  Moreover, some cases require the assistance of a third party to help one or both party or attorney get past whatever it is that is holding the case up from resolving itself.

I, for one, have been skeptical of mediation in a number settings.  The first is at the onset of a complex matter where one party is pushing for mediation and there hasn't even been the most basic exchange of information at that time, much less formal discovery.  I have even seen cases where the party with the documents will not provide them in advance of mediation and will only bring them to mediation and take them with him at the end.  The second setting that gives me cause for pause is when parties attend mediation without counsel and there is a great imbalance of power between the parties (consistent with the imbalance of power that permeated the parties' relationship).  In these instances, unless there is a strong mediator that will protect the disadvantaged spouse, I have often seen such mediations result in a "settlement", but one where the disadvantaged spouse got a "deal" that was neither fair nor reasonable, if not unconscionable.  The problem in these cases is that often, once there is an "agreement", the person that got the great deal refuses to concede anything.  Thus, a method meant to avoid litigation can often create litigation. 

However, in this day and age in New Jersey, the court mandates mediation at two junctures of the case (unless there is a domestic violence restraining order.)  The first is early on in the case when the parties go to custody and parenting time mediation conducted by court staff.  This is meant to ferret out the true custody dispute.  That said, I make sure that my client is prepared before they attend this mediation because it often results in a resolution of the issues and I want that resolution to be one that my client actually has considered in advance and is comfortable with.  As such, we often prepare a parenting plan, in advance, which deals with the regular parenting time, legal custody, holidays, vacations, etc.

The second mandatory mediation is economic mediation which takes place after an Early Settlement Panel.  Attorneys usually are required to attend with clients.  This is often the time when a case that is more than your run of the mill case will settle.  By this time, it is expected that most, if not all of your discovery will be done. Unlike the Early Settlement Panel where the panelists have a short time to consider the issues, the mediator can spend more time to flesh them out and more importantly, facilitate a dialogue and negotiation. 

In some cases, the impartial voice of the mediator helps one or both parties get past an issue that they are stuck on.  Put another way, when either the client's attorney has told the client time an again of a probable result, or if the attorney is presenting the strongest position regarding an issue as an advocate, the mediator, who has no axe to grind, may be just what is necessary to put the issue to bed.  In other cases that I have seen, sometimes one of the attorneys doesn't handle exclusively family law matters and/or is otherwise less confident.  In these cases, the mediator essentially can let the attorney know that the deal is fair.

I have been involved in cases where the parties were more than $20 million apart and seemed headed for a trial that would have lasted several months.  However, after 8 to 10 days of hard work at mediation, the case settled, saving both parties tens if not hundreds of thousands in legal and expert fees that would have been incurred at a trial.

The bottom line is that most people truly want to settle their cases in a fair way.  We always hear anecdotally that cases that settle come back to court far less often than cases that are tried.  We also hear that people that settle their cases are far more satisfied with the result than if they tried the case.  In a trial, the litigant gives up control of their life to a judge that doesn't know them and will only hear bits and pieces of their story - along with the hundreds of other cases they have.  Mediation with a skilled mediator, where the playing field is level, the parties both have all necessary information and the imbalance of power is kept in check, is excellent way to keep control of your life and resolve your matter in a fair and beneficial way.

Check back for future entries regarding arbitration and trial practice.  While most cases do settle, if litigation is required, we are skilled at handling matters that require a trial, as well.

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