Sometimes, the location of a case – for one reason or another – can be just as important as anything else.  Perhaps the law is different and more beneficial to one side in a particular location; possibly, one place is simply more convenient for purposes of introducing evidence at a trial or merely having all parties be present in court.

In my practice, I have seen this issue come up more and more.  With our increasing mobility, the questions of where a case should be conducted and what court has jurisdiction has become increasingly complex.  This is especially so in cases involving children who reside with the primary parent in another state from the other parent.  Often, this can result in a tug of war between the courts in both states over where post-judgment issues related to the children should be addressed.

One recent case out of the trial court in Essex County squarely addressed this issue.  In B.G. v. L.H., the parties were divorced in New Jersey, but had specifically agreed when they divorced that the mother and children could relocate to Massachusetts, which they did.  The agreement also called for a parenting time schedule which afforded the father parenting time in Massachusetts and in New Jersey, which he exercised.  Significantly, the agreement did address the question of jurisdiction quite clearly, stating:

Each of the parties hereby irrevocably consents and submits to the jurisdiction of the courts of the State of New Jersey for any future custody and parenting time disputes, so long as one parent resides in New Jersey.

After the wife and children relocated to Massachusetts, the husband continued to reside in New Jersey and, as noted above, to exercise parenting time with the children in New Jersey. Eventually, issues arose regarding the children and their time with their father.  This included two complaints to the Massachusetts Department of Children and Family by one child’s teacher and the other child’s doctor.  The Massachusetts DCF conducted an investigation and concluded that the allegations were unsubstantiated.  However, this prompted the Mother to institute proceedings regarding custody and parenting time in the Probate and Family Court for the Commonwealth of Massachusetts.

And so the basic question arose:  Should the custody and parenting time issues that arose be decided by a Massachusetts Court, or a New Jersey Court?  In this particular case, the answer may seem obvious.  The parties agreed, “irrevocably,” that as long as either of them resided in New Jersey, the courts of the State of New Jersey would have jurisdiction over custody and parenting time disputes.  It was not disputed that the Father continued to reside in New Jersey.  Therefore, based on their agreement, it would seem that New Jersey should continue to have jurisdiction over custody and parenting time issues.

However, the trial court judge went further and conducted an analysis of the issue as though there was no provision in the parties’ Matrimonial Settlement Agreement which addressed this issue.  This is because only the Court can determine if it should relinquish jurisdiction, even where an agreement exists (although the existence of an agreement is an important factor the court must consider, as discussed below).  Judge Passamano’s opinion provides a good overview of how the question of jurisdiction over custody and parenting time issues should be addressed under New Jersey’s Uniform Child Custody Jurisdiction and Enforcement Act (NJUCCJEA):

  1.  Did New Jersey acquire continuing, exclusive jurisdiction over child custody issues?
  2. If so, have circumstances changed so as to divest New Jersey of continuing, exclusive jurisdiction?
  3. And, if circumstances have not changed, then is New Jersey no longer a convenient forum to decide these issues, and is the other state the appropriate forum?

Notably, this procedure prevents a party from doing what the Mother in B.G. v. L.H. tried to do – simply filing an application to modify custody/parenting time in another state’s court.  The state court which originally had jurisdiction must conduct this analysis and affirmatively relinquish its jurisdiction.

Part 1:  Continuing and Exclusive Jurisdiction

Generally speaking, a Court acquires continuing and exclusive jurisdiction as to custody issues when it makes an initial custody determination, or when it modifies a custody determination made by another state as authorized by law.  In B.G. v. L.H., the initial custody determination was made in New Jersey, by a New Jersey Court.  Therefore, the Court proceeded to the next question.

Part 2:  Change of Circumstances

According to the NJUCCJEA, circumstances will have changed so as to divest New Jersey of jurisdiction when either of the following occur.

  1.  A NJ court determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with New Jersey and that substantial evidence is no longer available in New Jersey concerning the child’s care, protection, training, and personal relationships; or
  2. A court of NJ or a court of another state determines that neither the child, nor a parent, nor any person acting as a parent presently resides in New Jersey

The question of whether there is a significant connection with the state cannot merely be based on whether one party continues to reside in NJ.  Instead, it goes to the relationship between the child and the parent that remains in NJ.  This is where the distinction between what the parties in B.G. v. L.H. contracted for and what the law dictates lies.  The agreement between the parties called merely for the continued residency of one parent in New Jersey, but absent an agreement, the Court must look deeper at the relationship between the parent and the child.  The judge in B.G. v. L.H. opined that, since the children in that case exercised parenting time with the Father in NJ, there existed the requisite significant connection in any event.

Part 3:  Which is the Convenient Forum?

Having decided in favor of New Jersey on the first to issues, a New Jersey Court can still determine that it should relinquish jurisdiction if it finds that it is not a convenient forum, AND that the other state is the appropriate forum.  Pursuant to N.J.S.A. 2A:34-71(b), the factors that the Court considers in answering this question are:

  1. Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;
  2. The length of time the child has resided outside of the State;
  3. The distance between the court in this State and the court in the state that would assume jurisdiction;
  4. The relative financial circumstances of the parties;
  5. Any agreement of the parties as to which state should assume jurisdiction;
  6. The nature and location of the evidence required to resolve the pending litigation, including the testimony of the child;
  7. The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and
  8. The familiarity of the court of each state with the facts and issues of the pending litigation.

Again, in B.G. v. L.H., Factor 5 makes it impossible to ignore the fact that the parties explicitly, knowingly, and voluntarily, entered into an agreement that New Jersey would continue to have jurisdiction over custody and parenting time disputes so long as either of the parents (obviously, the Father in this case) merely resided in New Jersey.  Although the Court must give some due consideration to the other factors, so long as the best interests of the children – which must always be paramount – are not deleteriously affected by jurisdiction remaining in New Jersey, it would be hard to argue that there should be any other result in the face of such clear cut language in the agreement.

Practice Issues

The B.G. v. L.H. case provides a good lesson to practitioners about the importance of addressing this issue in agreements, especially if one parent’s relocation to another state may be on the horizon.  If you are on the side of the potentially relocating custodial parent, know that a provision like the one the parties entered into in this case may make it more difficult for your client in the event he or she wants New Jersey to relinquish jurisdiction.  By the same token, if you represent a party who may eventually be defending against an attempt to remove jurisdiction to another state, language like that included in the agreement in B.G. v. L.H. will be helpful to your client.

headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

Thankfully, sexual abuse allegations against parents do not often arise in the context of a divorce typical. However, when those scenarios do arise, they bring lawyers, litigants and judges alike in to unchartered territory where they sometimes have to sift through various accounts to get at the truth of the matter.

Twenty years ago, the Appellate Division succinctly described the dilemma Courts often face when dealing with sexual abuse allegations:

This case is an example of a tragic but recurring dilemma in certain family court cases involving allegations of child sexual abuse. On the one hand, there are clearly cases of imagined or even fabricated charges against a parent, especially when raised during the pendency of divorce proceedings. For a parent to stand accused of such an offense is devastating both to that individual, and to the child’s lifelong relationship with the parent. On the other hand, proof of such abuse, especially involving a very young child, is rarely clear, and the potential danger to a child from a reoccurrence, if the suspicions and accusations are well-founded, is enormous.

[P.T. v. M.S., 325 N.J. Super. 193, 198 (App. Div. 1999)].

In a subsequent case several years later, the Appellate Division in Segal v. Lynch, 413 N.J.Super. 171 (App. Div. 2010) even carved out a cause of action wherein one parent can sue the other for money damages on the grounds of parental alienation when one makes false sexual abuse allegations against the other:

[W]e are not blind to scenarios in which one parent intentionally or recklessly imbues a child with such calumnious accounts of the other parent, so wicked in their intent and so destructive in their effect, that the situation necessitates civil redress. For example, a case in which one parent falsely and intentionally accuses the other parent of sexually abusing the child is so despicable on its face and so destructive in its effect on the innocent parent that it cries out for compensation which is not available in the Family Part or even in the criminal courts. The same can be said of cases involving parental abduction, where one parent, unlawfully and without the knowledge or consent of the other parent, removes the child to a foreign jurisdiction with the intent of frustrating any lawful means for returning the kidnapped child to the aggrieved parent. In such cases, sound public policy demands that the aggrieved parent and, by extension the innocent abducted child, be given compensation beyond just reunification. Id. (emphasis added).

The recent published decision of E.S. v. H.A., A-3230-14T2 and A-3256-14T2, speaks to a different kind of scenario involving sexual abuse; one where the allegations have been sustained and the parent-child relationship hangs in the balance.

In E.S. the parties had a long history of contentious litigation, involving various domestic violence claims, motions, and the like. Ultimately, the Division of Child Permanency and Placement (DCPP) became involved with the family when allegations were made of sexual abuse against the father as to the parties’ child, Richard.

After various proceedings by the DCPP, at least some of the sexual abuse allegations against the father were sustained.  Thereafter, the mother moved for a suspension of the father’s parenting time.

Following a hearing, the trial court found, by clear and convincing evident, that the father had sexually abused Richard, granted the mother sole legal and physical custody of Richard and denied the father parenting time.  The resulting order further required the father to “comply with certain requirement prior to making any application for parenting time with his some”, including the following:

a.         Admission of wrongdoing;

b.         A psychosexual evaluation by a professional specializing in same; and

c.         Individual therapy.

The father’s subsequent appeal primarily concerned the above requirement that the be required to make an “admission of wrongdoing” prior to making an application for parenting time.  The father argued that requiring him to do so would violate the right against self-incrimination.

Indeed, the right against self-incrimination, although not protected by the New Jersey constitution, is deeply rooted in our jurisprudence and codified in N.J.S.A. 2A:84A-19, which states that every person in New Jersey “has a right to refuse to disclose in an action…any matter that will incriminate him or expose him to penalty…”

Both the United States Supreme Court and our New Jersey courts have consistently held that the state may not force an individual to choose between his or her Fifth Amendment right and another important interest because such choices are deemed to be inherently coercive. It does not matter whether the particular proceeding is itself a criminal prosecution. Rather, “the Fifth Amendment is violated ‘when a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered.'” State v. P.Z., 152 N.J. 86, 106 (1997).

After a full examination of the case law and surrounding circumstances, the Appellate Division in E.S. reversed the trial court’s decision requiring the father to admit to the sexual abuse allegations prior to making an application for parenting time. Its reasoning was as follows:

Here, the November 2013 and January 2014 orders conditioned any future request by defendant for parenting time upon his admission of “wrongdoing,” which we presume, based on [the expert’s] testimony, means defendant must admit that he sexually abused Richard. Such a requirement compels defendant to waive his privilege against self-incrimination and violates his rights under the Fifth Amendment and our State Constitution.

The Appellate Division further vacated the remaining preconditions that the trial court imposed on the father “prior to any application for parenting time”, reasoning that, “imposition of these other preconditions violated defendant’s right to invoke the equitable powers of the Family Part to modify its order denying him any parenting time.” While the Appellate Division noted that these application may fail absent the father’s efforts to address the issues that the court saw as vital to the reintroduction of parenting time, it made clear that the court should not reach that conclusion in advance of such a request.

Cases involving sexual abuse pose special problems and considerations for our courts.  But this decision makes clear that it is important to note that our judiciary is required to preserve and protect the due process rights of everyone involved in the litigation.

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Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

In 2014, I authored a post on this blog entitled Stern Revisited – Using the Shareholder Agreement to Determine Value.  I noted then that it seemed that after the Appellate Division’s decision in Brown v. Brown  which changed the landscape by doing away with discounts and essentially ushered in more of a value to the holder construct, that the consideration of an agreement was dead.  Rather, a myopic view of methodologies focused on income seemed to be the norm – disregarding all else.

This was the case even though there was New Jersey Supreme Court case law  (Stern v. Stern and Bowen v. Bowen to be precise ) that suggests the use of a “trustworthy” buy-sell agreement to establish value, noting that in some instances it may appropriately establish a presumptive value of a party’s interest.  Often the issue is what is a “trustworthy” buy-sell agreement?  What makes an agreement trustworthy?  It is updated frequently and routinely used when people enter and exit a business.  In my 2014 post, I blogged about the use of the buy-sell agreement in deciding the value of a medical practice where there had been 32 purchases or sales of interests in the practice in the recent past.  In the case cited in that blog, the Appellate Division noted “We find no error in the judge’s considered decision that the practice’s regularly updated corporate agreements were a better measure of value than plaintiff’s expert’s projection of cash flows through 2020, discounted by a rate chosen on the basis of U.S. Treasury bonds, augmented by selected risk premiums and reduced by an assumed long-term growth rate.”  Simply put, what the doctor would have received if he left the practice was used as the value.  Unlike many valuation calculations, there was no subjectivity to that number.  But this case was an unreported decision which means that it wasn’t precedential and there haven’t been many, if any, reported decision on the issue in some time.

That is, until August of 2017 when the Slutsky case was decided.  In that case, the husband was a partner at a major New Jersey law firm.  Though his income was substantial, he was not a rainmaker, and thus, worked on business generated by other attorneys at his firm.  In valuing the husband’s interest in the firm, the big issue was whether there was goodwill to be added to the amount that the husband would have been due under the firm’s partnership agreement.  The wife’s expert added goodwill; the husband’s expert did not.  The trial judge sided with the wife’s expert finding it “”incredible” the firm had no goodwill value. ”  The Appellate Division disagreed and reversed.

The Court noted that:

As Dugan instructs, the start of the examination of goodwill considers whether excess earnings exist. Dugan, supra, 92 N.J. at 439-40. This was a highly contested issue on which the experts used slightly different resources and offered greatly disparate opinions. Factual findings regarding this pivotal question were not provided.

Moreover, the court returned to Stern and the husband’s argument in that case regarding  “the propriety of considering his earning capacity as being a separately identified and distinct item of property” and pointed out the passage in Stern that held as follows:

[A] person’s earning capacity, even where its development has been aided and enhanced by the other spouse, as is here the case, should not be recognized as a separate, particular item of property within the meaning of N.J.S.A. 2A:34-23. Potential earning capacity is doubtless a factor to be considered by a trial judge in determining what distribution will be “equitable” and it is even more obviously relevant upon the issue of alimony. But it should not be deemed property as such within the meaning of the statute.

Of note, in this case the Appellate Division framed the real issue as follows:

Here, a nuanced valuation methodology is required because defendant is an equity partner in a large firm, who generally is not responsible for originations, and who is bound by the firm policies and a shareholder agreement.

In this case, the Appellate Division found that the formula in the firm’s agreement actually captured good will.  In addition, the court noted:

We believe the trial judge misunderstood Hoberman’s conclusion, as suggesting goodwill did not exist for the firm. Actually, Hoberman’s opinion asserted the TCA of each equity partner accounted for any goodwill. Further, plaintiff, who was not an originator but a worker in a highly specialized legal area, was actually paid what a similarly skilled lawyer would be paid. Thus, defendant’s compensation matched his earning capacity, nothing more. This view considered whether defendant’s “future earning capacity has been enhanced because reputation leads to probable future patronage from existing and potential clients” and concluded it did not. Accordingly, there was no additional component of goodwill. Id. at 433.

In this matter, any analysis of goodwill must evaluate the firm’s shareholder’s agreement to determine whether it is an appropriate measure of the total firm value, including goodwill. That formula computes an exiting partner’s interest, calculated as a portion of the firm’s excess earnings. See Levy, supra, 164 N.J. Super. at 534. The Court must discern the objectiveness and accuracy of the formula and calculations. When “it is established that the books of the firm are well kept and that the value of partners’ interests are in fact periodically and carefully reviewed, then the presumption to which we have referred should be subject to effective attack only upon the submission of clear and convincing proofs.” Stern, supra, 66 N.J. at 347.

The take away here is that Stern lives now for the same reasons that that it was originally decided.  If a regularly updated and followed agreement was disregarded, the titled spouse would be stuck getting only what the agreement allows, which the other spouse could wind up with a lot more, or less, if valuation methodologies with subjective components are used.  On the other hand, say that there are two similarly situated law firm partners with a similar book of business and making similar money, but one worked at a large firm with a regularly updated and followed shareholders agreement and the other at a smaller firm without a formal agreement, it seems like a safe bet that the values of their practices would be extremely different.  One other question to ponder.  Would the result have been different if the husband here was a major rainmaker?  Perhaps that will be addressed in a future case.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, 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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In what seemed like an eventual, but no less dramatic change in family law jurisprudence, the Supreme Court of New Jersey in Bisbing v. Bisbing overturned the well-established two-part test used in determining whether a primary custodian should be permitted to relocate interstate with an unemancipated child and, in connection therewith, the primary custodian’s presumptive right to relocate. In so doing, it noted a “special justification” in returning to the “best interests” of the child standard applied before Baures:

We affirm and modify the Appellate Division’s judgment. We depart from the two-part test that Baures prescribed for a relocation application brought by a parent of primary residence. We apply the same standard to all interstate relocation disputes under N.J.S.A. 9:2–2 in which the parents share legal custody—cases in which one parent is designated as the parent of primary residence and the other is designated as the parent of alternate residence and cases in which custody is equally shared. In all such disputes, the trial court should decide whether there is “cause” under N.J.S.A. 9:2–2 to authorize a child’s relocation out of state by weighing the factors set forth in N.J.S.A. 9:2–4, and other relevant considerations, and determining whether the relocation is in the child’s best interests.

While a more complete recitation of the factual circumstances and Appellate Division holding can be found in my prior blog post on this matter, this post will focus on the Supreme Court’s primary holding and underlying rationale.  Based on its holding, the Supreme Court modified and affirmed the Appellate Division’s decision and remanded to the trial court for a plenary hearing to determine whether the proposed relocation of the children to Utah was in the children’s best interests.

US

The Supreme Court’s Discussion of Baures v. Lewis and its Progeny

Focusing its attention on N.J.S.A. 9:2-2 (New Jersey’s removal statute), the Court noted that “cause” must be shown before a child’s permanent removal to another state can occur without both parents’ consent, or the child’s consent if said child is of “suitable age” to decide.  While a removal request involving shared custodians was treated as an application for a change in custody – thereby resulting in application of the “best interests” standard – under Baures, a primary residential custodian’s burden to prove “cause” for removal was “substantially” eased so as to only require a showing that: (1) the requested move is being sought in good faith; and (2) the move will not be inimical to the child’s interest.

In analyzing this two-part standard, the Baures Court listed out several factors for consideration.  No longer was the custodial parent required to show there would be no adverse impact upon the visitation rights of the noncustodial parent.  Rather, a relocation was to be blocked only if there was a resulting “adverse effect”, which was defined as a “change in visitation that will not allow the noncustodial parent to maintain his or her relationship with the child.”

Extensive rationale formed the Court’s basis for its Baures holding:

  • A relocation benefiting the custodial parent would similarly benefit the child;
  • No specific parenting time schedule was necessary to foster a child’s belief that he or she is loved and supported by both parents; and
  • There existed a “growing trend in the law easing restrictions on the custodial parent’s right to relocate with the children and recognizing the identify of interest of the custodial parent and child.”

The Baures aftermath, however, often compelled trial courts to analyze the actual facts and circumstances surrounding an existing custody arrangement – not just by reviewing what a Judgment of Divorce or settlement agreement provides as to custody – to determine whether one parent was the primary custodian, or if there existed a shared arrangement.  For instance, while a settlement agreement could designate one parent as the primary custodian perhaps, in practice, the other parent was the primary custodian or, at the very least, an equal custodian.

Unfortunately, since the nature of the custody arrangement essentially became determinative as to whether relocation would occur, existing case law became frequently manipulated for reasons good and bad.  Indeed, the facts and circumstances in the Bisbing matter raised such questions as to whether the subject agreement’s custody and parenting time arrangement was negotiated in good faith or whether, to the contrary, it was designed to facilitate for one party a future relocation request without the other party’s knowledge.

Departure from Baures

Addressing the above-discussed social science upon which the Supreme Court relied in Baures, the Court here noted that such findings had not reached a consensus as to the impact of relocation on children following a divorce and, more notably, “the progression in the law toward recognition of a parent of primary residence’s presumptive right to relocate with children. Anticipated by this Court in Baures, has not materialized . . . As experience has proven, the standard adopted in Baures did not represent a lasting trend in the law.”  Turning to other jurisdictions, the Court noted how the majority of states analyze relocation requests made by a primary custodian under a best interests test.

The Court also noted how its decision eliminates disputes and potential manipulation/bad faith allegations surrounding the parent of primary residence designation:

If a designation as the parent of primary residence will determine the result of a relocation dispute, parties may be motivated to contest that designation even if one parent is clearly in a better position to serve that primary role.  As this case illustrates, the advantage afforded to a parent of primary residence in a relocation conflict may raise divisive accusations of bad faith after custody negotiations conclude.

. . .

Accordingly, we do not consider the Baures standard to be compelled by social science or grounded in legal authority today, as the Court anticipated that it would be when it decided that case.  We recognize a “special justification” in this case to abandon that standard.

Return of the Best Interests Standard

In departing from Baures, the Supreme Court held:

[c]ourts should conduct a best interests analysis to determine ‘cause’ under N.J.S.A. 9:2-2 in all contested relocation disputes in which the parents share legal custody – whether the custody arrangement designates a parent of primary residence and a parent of alternate residence, or provides for equally shared custody.  That standard comports with our custody statute, in which the Legislature unequivocally declared that the rights of parents are to be equally respected in custody determinations and stated that custody arrangements must serve the best interests of the child.

The Court’s decision concluded with a remand to the trial court to determine if the proposed relocation to Utah was in the children’s best interests.  Notably, however, because the custody arrangement was “agreed to and incorporated in the trial court’s judgment, plaintiff is required to demonstrate changed circumstances to justify its modification.”  Ultimately, however, it is no longer incumbent upon the trial court to determine on remand if the party seeking relocation negotiated the custody agreement in bad faith.  The question now becomes whether the relocation is in the children’s best interests under N.J.S.A. 9:2-4(c).

The importance of the Supreme Court’s decision simply cannot be understated, as relocation law has again been transformed in a manner deemed by our High Court as consistent with present social science research, and the approach applied by majority of other jurisdictions.

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

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CourtRainbow

In a case of first impression in New Jersey, I was privileged to represent the mother and custodial parent of a transgender child in a contested, but successful, application for  the child’s legal name to be changed to the name which more accurately reflects the gender with which he identifies.  The case, Sacklow v. Betts,  has resulted in a reported decision (precedential) and gives guidance for judges who will no doubt be addressing these issues in the future.

Janet Sacklow retained counsel to represent her in connection with various issues surrounding her child’s gender identity issues.  This included treatment for hormones, mental health services, and allowing the child to assume the name of Trevor Adam. The child’s father had objected to various applications over the years related to the child’s gender identity, and initially objected to this as well, asking that the child’s given name, Veronica, continue.  During the trial in the matter, the father seemingly changed his mind, while at the same time expressing concerns that a name change was not in the child’s best interests.  Given the history of the father taking inconsistent positions in connection with the child, it was requested that the court make an independent finding as to the application for a name change.

The court found that the standard that should be used when there is a request for a name change when a child is transgender is whether or not the name change is in the child’s best interests.  However, the court then went on the note factors which should specifically be considered by a judge making such a decision.  Those factors are:

(1) The age of the child; (2) The length of time the child has used the preferred name; (3) Any potential anxiety, embarrassment or discomfort that may result from the child having a name he or she believes does not match his or her outward appearance and gender identity; (4) The history of any medical or mental health counseling the child has received; (5) The name the child is known by in his or her family, school and community; (6) The child’s preference and motivations for seeking the name change; (7) Whether both parents consent to the name change, and if consent is not given, the reason for withholding consent.

In this case, the child had disclosed the fact that he identified as male several years previously.  He had been under the care of health care providers for a significant amount of time and was confident in his gender identity.  He was known as Trevor in school, to his friends, and to the vast majority of his family.  He was treating with Children’s Hospital of Philadelphia and was in the process of his mental and physical transition to male.  He was shortly going to obtain a drivers’ license, and the idea of having a picture that did not “match” his name caused him significant stress. The court, which had taken testimony from both parents as well as the child, unequivocally concluded that it was in the child’s best interests to have his name changed.

The law relating to gender identity, sexual orientation and associated issues is constantly changing and developing. This case provides litigants and their counsel guidance in an emerging are of the law that will likely be addressed by courts in this and other jurisdictions.

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

 

Notice and opportunity to be heard is one of the most fundamental tenants of due process in this country. Every litigant, no matter how small the case, has the right to have his or her “day in court.” As we learn in the recent Appellate Division decision of T.M.S. v. W.C.P., that applies equally to a plaintiff – the party bringing the action – and to a defendant – the party defending against the action.

Some background as to the Prevention of Domestic Violence Act (“PDVA”), N.J.S.A. 2C:25-17 to -35, may be helpful to understand the trial court’s error in this case.

Under the PDVA, a Court may enter a restraining order pursuant to a complaint to protect a victim of domestic violence. Following a hearing, the court will issue a Final Restraining Order (“FRO”) if it finds that the victim was subjected to domestic violence by someone with whom the victim has a domestic relationship. The victim must prove that an act of domestic violence occurred and that a restraining order is necessary to protect the victim from immediate danger or future acts of domestic violence.

Although restraining orders may be termed “final” that does not mean that they can never be vacated. Under the PDVA, a court may vacate an FRO upon good cause shown. N.J.S.A. 2C:25-29(d).

The case of Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995) establishes eleven factors a court must weigh to determine if a defendant established the requisite good cause to vacate an FRO:

(1) whether the victim consented to lift the restraining order;

(2) whether the victim fears the defendant;

(3) the nature of the relationship between the parties today;

(4) the number of times that the defendant has been convicted of contempt for violating the order;

(5) whether the defendant has a continuing involvement with drug or alcohol abuse;

(6) whether the defendant has been involved in other violent acts with other persons;

(7) whether the defendant has engaged in counseling;

(8) the age and health of the defendant;

(9) whether the victim is acting in good faith when opposing the defendant’s request;

(10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and

(11) other factors deemed relevant by the court.

In T.M.S., a final restraining order was entered against the defendant on November 29, 2006. In 2008, the defendant moved, unsuccessfully, to vacate the FRO pursuant to N.J.S.A. 2C:25-29(d) and Carfagno. Subsequently, defendant filed a second Carfagno application to dismiss the FRO. The plaintiff did not appear for the hearing. After determining plaintiff had been properly served with notice of the hearing, the court granted the defendant’s unopposed application.

The Court made the following findings in support of its conclusion:

  • Plaintiff did not consent to the FRO’s dissolution because she was not present.
  • The facts proved defendant never violated the FRO because the parties had no reason to interact; specifically, because they did not have children and both were in committed relationships.
  • Defendant’s prior insobriety partially contributed to the domestic violence incident, and he had been sober for nearly eight years and even chaired his sobriety group.
  • Defendant attended domestic violence counseling.
  • Although physically Defendant was a “big guy,” defendant had health problems that reduced his strength.
  • As to plaintiff’s good faith, the court noted she did not appear in court, and there were no additional orders in other jurisdictions against defendant.

With the FRO vacated, defendant moved for relief from the weapons forfeiture, which requires a defendant to surrender his or her weapons upon the entry of the restraining order. At the initial weapons forfeiture hearing, a question arose for the first time as to whether plaintiff was properly notified of the dismissal of the FRO.

On the last day of the hearing, on December 15, 2015, the court, who had heard the initial Carfagno application, reversed its initial determination plaintiff was validly served with defendant’s dismissal application, and vacated the December 8, 2014 dismissal order, reinstating the FRO. As a result, the weapons forfeiture matter was dismissed. The Court determined that an old address on file for the plaintiff was used and it was questionable as to whether she still remained resident there.

While this case certainly calls into question the plaintiff’s notice and opportunity to be heard on the Carfagno hearing vacating the FRO, the Court focused on the Court’s violations of the defendant’s due process here. On appeal, defendant argued the PDVA does not permit a court to reinstate an FRO on its own motion. He asserted, although a trial court may revisit an interlocutory order, it could not sua sponte review a final order.

The Appellate Division agreed with the defendant and reinstated the dismissal. In doing so, the Appellate Division focused primarily on the fact that, by sua sponte reinstating the FRO in the ancillary weapons forfeiture matter, the court overlooked fundamental due process principles. If plaintiff challenged the order dismissing the FRO, she was required to file a motion for relief in the domestic violence matter, so defendant could be heard and there, address the issue of service.

The Court concluded that requiring plaintiff to reopen a dismissed TRO or FRO must be made in the underlying domestic violence matter, not an ancillary matter, and further requiring such requests to be made by formal application equally will (a) protect domestic violence victims by providing them with formal notice where there is an application to vacate the orders of protection, and, (b) assure due process for defendants.

In a footnote of the case, the Appellate Division also suggested the Conference of Family Presiding Judges consider promulgating formal operational guidance requiring plaintiffs to periodically update their address with the Family Division. We will let you know if this occurs.

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Eliana Baer, Associate, Fox Rothschild LLP Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

We have all had those cases where any request that we made, big or small, has been rejected by the other side and any requests that our client has made to her/his spouse is similarly rejected.  They don’t agree to informally provide discovery that they will eventually have to provide formally (and then maybe even not then).  They won’t agree to a mediator because you proposed him or her.  They won’t agree to a joint expert, for the same reason.  They wont agree to pay any or the right amount of support.  They won’t agree to parenting time.  They wont agree to the slightest deviations to parenting time.  Post-judgment, when an Agreement says that the parties must agree on something before the other side will have to pay “with consent to not be unreasonably withheld”, they will not agree to anything, nor even make proposals for the other side to agree to.

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This is bad when the litigant’s do this.  It is worse when the lawyers do it, especially when there is no advantage, tactical or otherwise, not to be agreeable.  I have a matter now where the other party simply refuses to answer discovery or do anything whatsoever, and there is no benefit to him in any way, shape or form.  Sometimes you hear “my client wont let me agree to an adjournment” which, quite frankly, is rarely, if ever, should be the basis of denying a reasonable adjournment request.  But all too often, the lawyer becomes the instrument of the client’s bad behavior or general inability to reasonably agree to anything.

I recently heard a story about a party rejecting out of hand a Consent Order providing the relief that he asked for and got, simply because it was drafted by the other attorney.  Instead of getting it done, his attorney said “why did you even bother since he wont sign anything unless I draft it.”  Think about that.  He was willing to cut off his nose to spite his face, and put himself in a more precarious position, simply because of who the messenger was, ignoring the message completely.

This can permeate every part of a case.  How many times have we seen bogus motions to quash of completely discoverable materials (i.e. income information, current bank account information, etc. – i.e. the stuff that you have a duty to update until the end of a case, if requested)?  How many times have we had to file repeated motions to compel or repeated enforcement motions?  How many times has an adversary apologized for taking a ridiculous position forcing you to file a motion rather than forcing their client to do the right thing?

On the rare occasion that the disagreeable person actually makes a settlement proposal that your client agrees to, how many times have you seen the offer be walked back or the deal otherwise go south because the proposal was really made in bad faith and was never expected to be accepted, and the offering party now thinks that the offer was too good if your client actually accepted.

 

Are their any benefits to saying no to everything?  Assuming the clients can pay, maybe the attorneys do ok.   Or do they?  When your reputation is damaged and/or your stature and relationship with your judge and your adversary takes a hit, is it worth it?  For the parties, unless both parties are equally disagreeable, and this happens sometimes, the court eventually figures out who the difficult party is.  Do you want that impression guiding a judge’s substantive or counsel fee decisions.

Now I am not suggesting that you need to agree on everything that the other party says.  There will be good faith disputes and disagreements that will have to be resolved by a judge or arbitrator.  But, in most cases unless there is an emergency or some really good strategic reason, what is the harm in trying to resolve issues, big and small, before just saying “no,”  It doesn’t make you weak, it makes you smart.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, 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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Ah, technology.  In this modern world, we navigate the roads on our phones instead of a map.  We talk to a cylindrical tube to tell it to order more toilet paper for us, tell us the weather, read us the news, or turn on the lights.  We don’t remember anyone’s phone number because they are all stored for us on our phones.  And we obtain personal jurisdiction over an out-of-state defendant via Facebook.

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The legal world is, perhaps, notorious for its luddite tendencies.  One need only step into any lawyer’s office to see reams of paper everywhere – stacked on the floor (okay maybe that’s just me), piled on the desk, packed into boxes.  But in terms of the use of social media as a mechanism for exercising “long-arm” jurisdiction over a defendant, the law appears to be catching up with modern means of communication as more and more jurisdictions are allowing the use of Facebook and other social media platforms to serve as a form of substituted service.

Personal Jurisdiction = Sufficient Minimum Contacts + Service of Process

For those who didn’t take Civil Procedure, it is important to understand that there are rules (a lot of them!) about who is subject to the jurisdiction of a particular Court.  Every state in the country has the ability to exercise “long-arm” jurisdiction over parties who do not reside within it, but only if certain rules are followed and conditions met.

In order for a New Jersey court to exercise jurisdiction over a person who does not live in this state, that person must have sufficient minimum contacts (a phrase drilled into every first-year law student’s head for all of time) with New Jersey, and must also be properly served with process.  Broadly speaking, the “minimum contacts” test is satisfied if the individual could or should reasonably expect to be brought into court in the state.

Importantly, there are limits on what types of actions a court can exercise its jurisdiction over, and these are based upon the type and scope of the minimum contacts the out-of-state defendant has with the state.  For example, if a PA resident has a car accident in NJ, and the nexus of personal jurisdiction is that the PA resident drove into NJ where the accident occurred, then a New Jersey Court would have jurisdiction over any legal claims arising out of the car accident.  But, if someone wanted to sue the PA resident for some other reason in NJ, there would have to be some other finding of minimum contact related to that cause of action here in NJ.

There also has to be service of process.  The purpose of this requirement is two-fold.  First, service must be reasonably calculated to apprise the party of the pending legal action.  Second, it must allow the party an adequate opportunity to respond.  Simply speaking, under our Court Rules, personal service (i.e. actually delivering the process to the person or a representative) is the preferred form of service.  Under certain conditions, service can also be made by mail.  But then, there is a third option.  If service cannot be made personally or by mail, then it can be made “as provided by a court order, consistent with due process of law.”  In other words, the Court can determine an alternate method of service, so long as this method accomplishes the dual purposes of service of process: the manner of service must be reasonably calculated to let the party know about the pending legal action and the claims against him/her, and must allow the defendant the opportunity to respond.

Recent Court Ruling Approves Service of Process Via Facebook

In a recent published (precedential) decision, K.A. and K.I.A. v. J.L, a New Jersey trial court found that – under the circumstances – service by Facebook would be sufficient to confer personal jurisdiction over the defendant.  In that case, K.A. and K.I.A. were adoptive parents of their son, referred to as “Z.A.”  Z.A.’s biological father had contacted not only Z.A. but also K.A. and other family members (all of whom were NJ residents) on Facebook and had disclosed to Z.A. on Instagram that Z.A. was adopted and told him the identity of his birth mother and the location of his birth.  J.L. also obtained photographs of Z.A. from K.A.’s Facebook page and published them on his own page, holding Z.A. out as his son.  The plaintiff’s commenced an action to enjoin J.L. from holding Z.A. out as his son, to enjoin him from contacting them and Z.A., and to compel J.L. to remove information pertaining to Z.A. that he allegedly published online.

The plaintiff’s attorney sent cease and desist letters to both of the defendant’s last known addresses, which were in Pennsylvania, by certified and regular mail.  Under the Court Rules, this is an acceptable method of service so long as the regular mail is not returned to the sender, and so long as an answer or response is made by the defendant.  In this case, both of the certified mailings were unclaimed and, although the regular mail was not returned, no answer was made by the defendant.

Because the defendant, based upon the conduct forming the basis of the claims against him, was evidently an active Facebook user, the plaintiffs sought permission from the Court to effect substituted service by use of Facebook.

Judge Hansbury found that under the circumstances, such service would meet the requirements to confer personal jurisdiction over the defendant with regard to the claims against him based on the following:

  • Personal Jurisdiction:  Judge Hansbury relied upon a Third Circuit case, Toys R’ Us, Inc. v. Step Two, S.A., 318 F.3d 446 (3d Cir. 2003), which held that a defendant’s intentional interaction with the forum state via the internet is sufficient to confer jurisdiction.  In the case before the Court, the defendant intentionally reached out to various members of the plaintiffs’ family who are NJ residents, using his social media accounts.  Any harm arising from these intentional contacts would clearly be concentrated in NJ.  Therefore, the Court found that it could exercise personal jurisdiction over the defendant by virtue of his intentional contact with the State via the internet.
  • Scope of Personal Jurisdiction:  Because the defendant’s contacts with the state were precisely those that gave rise to the causes of action the plaintiffs pursued against the defendant, the Court found that the scope of its personal jurisdiction over the defendant included these claims, though it acknowledged it did not have personal jurisdiction over the defendant as to any claims unrelated to the alleged contact with the plaintiffs and their family members.
  • Service:  Under the facts of the case, service of process via Facebook would accomplish the dual purposes of the service of process requirements discussed above.  The Court reasoned that because the defendant solely used his Facebook and Instagram accounts as the “conduits of the purported harm,” service via Facebook was reasonably calculated to apprise the defendant of the pendency of the action and afford him an opportunity to respond.  The Court observed that the plaintiffs had demonstrated that the defendant’s Facebook account was active.  Further, the Court noted that Facebook includes a feature that allows the sender of a message to see whether the recipient has opened and received the message, which would indicate whether the defendant was actually notified of the case.

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Limitations on the Use of Facebook to Confer Personal Jurisdiction

It is important to note that Judge Hansbury’s ruling does not mean that service of process via Facebook is acceptable as a primary method of service or even that it is available in every case.  Central to the ruling here is that personal service could not be affected, nor could service by mail.  Moreover, it was due to the particular facts of this case – specifically, that it was evident the defendant had an active Facebook account and that the Facebook account was the primary means of the harm alleged in the case – that caused the judge to believe it would be an appropriate means of substituted service.  However, given the widespread use of Facebook, the ruling suggests that it can be used in other cases as a means of substituted service and is something to keep in mind in cases where out-of-state defendants cannot be served by traditional methods.

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Jessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

Last year I blogged on tri-parenting, or the concept whereby three parents agree to raise a child or children together as a family, with regard to the published New Jersey trial court decision of D.G. and S.H. v. K.S. My previous blog post can be found here.

In that matter, D.G. and his husband, S.H., along with their friend K.S. embarked on a journey of conceiving and raising a child together. The parties agreed to use D.G.’s sperm and K.S.’s egg, as they had known each other longer, and they would give the child S.H.’s surname. All three parties parented the child and were effectively able to do so for most of the child’s early life, until K.S. announced that she had fallen in love with A.A., who she intended to marry, and that she wanted to relocate with the child to California where A.A. resided. When the parties’ could not agree on a “tri-parenting plan”, D.G. and S.H. filed a Complaint seeking legal and physical custody of the child, parenting time, and that S.H. (who did not have any biological ties to the child), was the child’s legal and psychological parent.

After 19 days of trial, the Court found that S.H. was in fact the child’s psychological parent (although K.S. also stipulated to this on the eve of trial), and concluded that D.G., S.H. and K.S. should have equal legal and residential custody of the child, and the court established a 50/50 parenting time schedule. However, the court denied S.H.’s request for legal parentage as a matter of law on the basis that the court does not have jurisdiction to create a new recognition of legal parentage other than what already exists—genetic contribution, adoption, or gestational primacy. Further, although the best interest of the child standard is used for various family law determinations, it is not a factor in defining parenthood under the Parentage Act. (N.J.S.A. 9:17:38 through 9:17-59).

I concluded my prior post by stating that

With the evolution of today’s family, “tri-parenting” and other, similar custody and parenting time situations will emerge, creating a new, unique set of issues for families who are dissolving/separating. As the role of “parent” expands, it will be interesting to see how the courts will progress to handle these delicate issues.

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On March 8, 2017, The New York Supreme Court of Suffolk County also granted tri-legal custody and visitation, in the matter Dawn M. v. Michael M.

In that matter, Dawn and Michael, a married couple, began a polyamorous relationship with Dawn’s friend, Audria. All three parties considered themselves a family and decided to have a child together. Since Dawn was unable to have a child, the parties decided that Michael and Audria would try to conceive. The credible evidence presented to the Court established that all three parties agreed, prior to a child being conceived, that they would raise the child together as tri-parents.

Audria became pregnant and gave birth to a boy, J.M.; however shortly thereafter the relationship between the parties became strained and Dawn and Audria moved out together with J.M. Michael commenced a divorce action against Dawn, and asserted he no longer considered Dawn to be J.M.’s parent.

The court found credible the testimony of Audria and Dawn that J.M. was raised with two mothers and that he continues to the present day to call both “mommy.” The court further found that in all respects, during the first eighteen months of J.M.’s life when Dawn, Michael and Audria all lived together, and thereafter after their separation, Dawn acted as a joint mother with Audria and that they all taught the child that he has two mothers. The Court also conducted an in camera interview with J.M., which left no doubt in the Court’s mind that he considered both Dawn and Audria to be equal “mommies” and that he would be devastated if he were not able to see Dawn.

Although not a biological parent or an adoptive parent, Dawn argued that she has been allowed to act as J.M.’s mother by both Audria and Michael, that she has always lived with J.M., J.M. has known her as his mom since his birth and that the best interest of J.M. dictates that she be given shared legal custody and visitation with him. Audria, J.M.’s biological mother, strongly agrees. Dawn further argued, along with the child’s attorney, that Michael should be estopped from opposing this application because he has created and fostered this situation by voluntarily agreeing, before the child was conceived, to raise him with three parents, and that Michael has acted consistent with this agreement by allowing the child to understand that he has two mothers.

The Court found that the best interests of J.M. would be served by granted Dawn shared legal custody, stating that “J.M. needs a continuing relationship with the [Dawn] as his mother and that relationship cannot be left to depend on the consent or whim of either his biological mother or father. Anything less will promote great hardship and suffering for J.M.”, and established a tri-custodial arrangement, as Michael and Audria already shared joint legal custody.”

The Court concluded that Dawn, Michael and Audria

created this unconventional family dynamic by agreeing to have a child together and by raising J.M. with two mothers. The Court therefore finds that J.M.’s best interests cry out for an assurance that he will be allowed a continued relationship with [Dawn]. No one told these three people to create this unique relationship. Nor did anyone tell [Michael] to conceive a child with his wife’s best friend or to raise that child knowing two women as his mother. [Michael]’s assertion that [Dawn] should not have legal visitation with J.M. is unconscionable given J.M.’s bond with [Dawn] and [Michael]’s role in creating this bond. A person simply is responsible for the natural and foreseeable consequences of his or her actions especially when the best interest of a child is involved. Reason and justice dictate that [Michael] should be estopped from arguing that this woman, whom he has fostered and orchestrated to be his child’s mother, be denied legal visitation and custody…To order anything other than joint custody could potentially facilitate [Dawn]’s removal from J.M.’s life and that would have a devastating consequence to this child.”

Although the issue of legal parentage was not discussed in the New York Court opinion, it appears that the New York Court is as progressive as the New Jersey Court in moving  towards alternative custody arrangements in light of the evolution of today’s families.

While we do not typically blog on cases outside of the family court, a recent law division case examined the child support lien statute, N.J.S.A. 2A:56.23b and its impact on settling a personal injury case and on settlements in general.  The statute requires that a child support judgment search be performed to determine if a plaintiff in a given lawsuit has an outstanding child support obligation.  If he or she does, then the statute requires that any “net proceeds of a settlement” (i.e. the proceeds left after the payment of attorney’s fees, witnesses’ fees, court costs, and other related costs associated with the lawsuit are deducted from the settlement award) in excess of $2,000 be paid in either full or partial satisfaction of the outstanding child support arrears.  For example, let’s say $10,000 was owed in child support arrears, and a given plaintiff’s litigation costs totaled $10,000.  If the plaintiff took a $20,000 settlement, then $10,000 would go to pay his litigation costs, $8,000 would go to pay off the child support arrears, and the plaintiff would get to keep $2,000 (but would still have $2,000 in child support arrears).

In Smiley v. Thomas, et. al. , the plaintiff sued the defendants for personal injury as a result of a car accident.  He had also entered into a contingent fee agreement with his counsel, meaning that they agreed to take a fixed percentage of whatever the plaintiff was awarded in settlement or after a trial as their fee, rather than charging the plaintiff at their hourly rates.

Eventually, the defendants made a settlement offer of $25,000.  The only problem was, after the child support judgment search was conducted pursuant to the statute, it was discovered that the plaintiff had outstanding child support arrears in the amount of $19,306.04.  After satisfaction of the arrears and payment to his attorneys, the plaintiff would be left with $2,000; in fact, because his counsel fees and litigation costs exceeded the difference between the child support owed and the settlement amount, he would also be left with some unpaid child support arrears because he would have to pay counsel first.  The plaintiff refused to accept the settlement if, at the end of the day, it meant that he would only walk away with $2,000.

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But, evidently, the plaintiff’s attorney really wanted him to settle his case.  So badly, in fact, that the attorney was willing to reduce his fee.  So, the attorney asked the Court to modify the fee agreement accordingly; but, and here’s the rub, the attorney also asked the Court to call the money that the plaintiff would realize as a result of this reduction something other than “net settlement proceeds” so that they would not be subject to the child support lien by operation of law.

The Court weighed two important competing interests.  On the one hand, Courts love settlements!  Settlements make both parties feel happy (or equally unhappy) with the outcome and therefore (hopefully) curb future or continued litigation.  On the other hand, our case law is replete with decisions affirming over and over again a parent’s obligation to financially support his or her children and there is plenty of case law carving out exceptions, identifying specific needs of the children that should be included in support, and generally providing guidance as to arrival at an appropriate child support arrangement (seriously, there are a lot of these decisions and we’ve blogged on them here, here, here, here, here, and many more times).

Ultimately, the Court determined that a parent’s obligation to financially support his or her children trumps the competing interest in promoting settlement.  The Court found that it had the obligation to call a spade a spade.  It did not, and found that it could not, call the money that the plaintiff would receive as a result of the reduced counsel fee award something other than “net proceeds from settlement” in order to help the plaintiff evade his child support obligation.  To do so would be in direct contravention of the very purpose of the child support judgment lien statute.

headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.