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.

_________________________________________________________________________________________________________________________________________

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 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.

_____________________________________________________

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.

Connect with Robert: Twitter_64 Linkedin

 

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.

 

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.

19754957 - one caucasian family father mother daughter man dispute reproach in silhouette studio isolated on white background

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.

Growing up, my siblings and I all played sports. My brother and I were basketball players and my sister was, in no uncertain terms, a track star. Playing sports was a lifestyle in our family, and no one took it more seriously than my father himself, a former basketball player and my toughest coach. My dad was not only an extremely skillful basketball player, but he was a great teacher and I valued all the time he spent with me in the driveway teaching me how to perfect my shot. I like to think this is why he was always my most vocal fan at my games.

No matter how packed the stands were for a Friday night game (my high school had almost 4,000 students), I could tune out every cheer, scream and shout, that is, except of course, my dad’s. He had his share of one liners, “advice” for the referees and positive feedback, but when I wasn’t playing up to his standards (which rival that of Coach K or Jim Boeheim), I was always able to find him in the sea of parents, with two fingers on the bridge of his nose shaking his head in disappointment or somehow hear his “instructions” as to what I could be doing better, over all the noise.

A few distinct memories are as follows: once, when I was about 12, in the middle of a game, my dad, then toting along my much younger sister, came down from the stands over to the bench to tell me that I was playing “so badly” he was going to wait in the car–if that did not instill fear in you to play better, nothing would. It was going to be a long car ride if I didn’t turn that around! Another time a referee told him to start drinking decaffeinated coffee before coming to tournaments. But my favorite was when I missed a few foul shots in a game (which was the equivalent, or worse than, being expelled from school). My dad drilled into my head from a young age the importance of foul shots, so after the game, I was not allowed to come inside the house until I made 25 foul shots, in a row. I still remember that cold December evening, standing outside in the dark on the chalk-drawn foul line he made, taking shot after shot in the glow of the overhead garage light. Once you learn how to make foul shots without feeling your hands, it becomes second nature.

In any event, everything my dad did (except maybe his “advice” towards the referees), taught me how to be a better basketball player, a better team player, work harder and, subsequently/somehow, positively shaped me into the person I am today. And while he was tough, I never once felt discouraged or embarrassed; instead he motivated me to work harder. After all, by high school, I was our team’s technical foul shooter.

But all too often, parents cross the line from teaching their children to be better athletes to acting inappropriately, disparagingly, and disruptive not only towards their own children, but towards their children’s team and coaches.

65898085 - rear view little league baseball team sitting on bench

In the unpublished (non-precedential) matter of D.W. v. M.W., the mother of a 7-year old child filed a motion seeking to prohibit her ex-husband, the child’s father, from attending their son’s coach-pitched Little League baseball games due to what she alleged, was “inappropriate public criticizing and disparaging of the coach’s baseball-related decisions and abilities in an embarrassing and demeaning manner”. According to the mother, the father routinely made negative and demeaning comments at the baseball field, that their 11-year old daughter then began repeating, that other parents witnessed this inappropriate conduct, and that the father even took his commentary from the baseball field to FaceBook. The child’s father denied these allegations.

After recognizing the cultural importance of Little League baseball, Judge Jones took judicial notice “that the results of particular Little League games are not nearly as significant as the underlying goal of developing a child’s ongoing personal character in a positive fashion. In this respect, there is a paramount importance in maintaining the surrounding environment at the Little League field as one which promotes respect, integrity, responsibility, discipline and self-restraint. Ironically, however, a great challenge in meeting these goals often comes not from the participating children, but from parents. While fathers and mothers come to games and practices for the alleged purpose of supporting their sons and daughters, there are times when overly critical, judgmental and interfering parents invariably end up acting in an objectively inappropriate manner, which can be highly embarrassing and emotionally detrimental for their own children, and others as well.”The “social phenomenon of out-of-control sports parents is often informally referred to as ‘Little League Parent Syndrome”.

41648699 - summerlin, nevada - june 4: a summerlin little league girls game on june 4, 2015, in summerlin, nevada. two players warm up at a summerlin little league game in summerlin in nevada.

But when and where does the Court intervene in this matter? A parent’s inappropriate and disruptive conduct, not only at the ball field but in any public venue, may be directly contrary to the best interests of their child, and in cases before the family court, a child’s best interests, rights and needs are greater than that of either parent.

In the case at bar, Judge Jones made it clear that he could have set the matter down for a costly and elongated plenary hearing, but decided to undertake what he referenced as the “fresh start” approach. The “fresh start” approach does not make any finding as to the credibility or accuracy of either party’s viewpoints, but requires that both parents submit to the same “(a) parameters of parental conduct at the ball field; and (b)… act at all times in a manner which is consistent with the children’s best interests as well as the true purpose of organized youth sports in the first place.”

The parties were also directed to follow all league rules concerning parental conduct and additionally, adhere to the following parameters not only at the site of the games and practices, but also on social media:

1) A parent may not publicly harass or demean his or [her] child or any other child;

2) A parent may not publicly harass or demean any coach or official. If a parent has a particular issue which he or she wishes to communicate with a coach or official, then absent a legitimate emergency, the parent may address the issue with the coach or official, privately, either by letter or by any other method deemed acceptable by league officials, including but not limited to, if reasonably necessary, an in-person meeting, outside the presence of children, and consistent with any existing league rules, with all such communication conducted in a mature, diplomatic, and respectful manner;

3) A parent may not publicly harass or demean any other or any parent or other spectator in the stands; including but not limited to that parent’s separated divorced, or otherwise estranged spouse, or such person’s guest(s). A child’s sporting event is a wholly inappropriate place for any public domestic disputes of any kind;

4) A parent who attends a child’s youth sporting event or practice has an affirmative obligation to act in a manner which upholds the dignity of the event. In particular, a parent may not act in a manner which is directly contrary to the core purposes of the event itself, such as teaching children concepts of maturity, respect, and discipline, and good sportsmanship. A parent who cannot or will not accept these parameters, and who acts in a manner which publicly undermines these core goals and values, may undermine the integrity of the event and the rights of all participating children and other adults in attendance;

5) A parent is to fully comply with all other rules of conduct required by the league or organization in question.

The purpose of the “fresh start” approach is much like the lessons learned from youth sports; there is always a second chance to do better. “With parenting, the reality is that parents who allegedly commit errors or fumbles in raising children, and who end up in court over such incidents, may positively and constructively learn from the entire experience” and make positive changes going forward that are in the best interests of their children. While the “fresh start” approach is contingent upon both parties making positive changes, if they are willing and able undertake this approach, I believe it can be successfully extended to other parenting issues as well. In the right instances, as practitioners, we should be mindful of this approach when dealing with similar parenting issues.

Custody Neutral Assessments (CNAs), a mostly South Jersey phenomenon, have been described as a supposed alternate dispute resolution program that was available for high conflict cases that were inappropriate for, or are unable to be resolved, through mediation. This program utilizes several mental health practitioners in the community who meet with the parties, discuss contested issues and make clinical recommendations to the court on how to resolve disputed issues.  The way it was supposed to work is that in the counties that use CNAs, after mandatory mediation fails, the Court was to enter an order appointing an evaluator to perform a CNA.  The parties then were to receive notices as to the time and date of their initial meeting. The fee was nominal compared to a full-blown custody evaluation because the parties are paying for approximately 4 hours of the evaluator’s time.  Each of the parties meet with the evaluator and it is up to the evaluator to determine if it would be appropriate for the children, step-parents, etc. to participate.  Unlike a custody evaluation, there is no psychological testing or psychological evaluations.  The evaluator then issues recommendations to the Court which can include custody, a parenting time schedule, anger management, a drug and alcohol evaluation, and recommendations regarding related issues.  Once the Court receives the CNA, the parties are scheduled for a Case Management Conference at which point the Court determines whether to accept, reject or modify the CNA recommendations.  At this hearing, the party that is dissatisfied with the CNA can request a custody evaluation if the CNA involves a change in custody or custody determination.

43372204 - forensic psychologist indicating word clinician and therapist

However, what was supposed to be a non-binding dispute resolution tool often became some more than that though many practictioners questioned how this could be so.  In fact, when I wrote the Custody chapter in the most recent edition of New Jersey Family Law Practice, published by ICLE, I wrote:

            While this process may be a way to get some level of expert involvement in cases that cannot afford a full-blown evaluation, or a way to ferret out bad-faith, anger driven or other “custody cases” that are not truly bona fide custody disputes, there are certainly causes for concern with the process.  First, given that the CNAs are abbreviated, it seems unlikely, if not impossible that the recommendations being made are based upon a reasonable degree of psychological certainty.  See N.J.R.E. 702, 401 and 402.  See also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed. 2d 469 (1993); James v. Chevron U.S.A., Inc., 301 N.J. Super. 512 (App. Div. 1997), aff’d 155 N.J. 279 (1998)(which held that Daubert applied in New Jersey).  See also Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167 (1999).  As such, they would be legally inadmissible at trial and little more than a net opinion.

Further, if this is a method of alternate dispute resolution, one wonders whether it is proper that the court is being provided with these so-called “recommendations” made after limited involvement with the parties and perhaps no involvement with the children.  To the extent that the process is meant to evoke a settlement, does the reporting of the recommendations to the court violate N.J.R.E. 408?  Though it is clearly not mediation, should a confidentiality standard that applies to mediation also apply to a CNA?  See Lehr v. Afflito, 382 N.J. Super. 376 (App. Div. 2006).  If it is an alternate dispute resolution method that may have binding implications, should there not be heightened procedural safeguards as there are now required for arbitration of custody matters?  See Fawzy v. Fawzy, 199 N.J. 456 (2009).

If and when there become more widespread implementation of CNAs, perhaps some of these questions will be answered.

 

Well, it took almost 5 years since I wrote those words, but the question was just answered by Judge Jones in his unpublished decision in the  case of Serrano v. Urbano released on December 1, 2016 when he held that CNAs were not evidential as an expert report, though the preparer could testify about what was told and “his or her professional impressions and concerns regarding such statements or actions which the assessor personally witnessed and/or experienced in his or her contact with either party during such process, if relevant to the best interests of the child at issue.”

Of note, Judge Jones held that:

A C.N.A., however, is not a “mini-evaluation,” or an “express evaluation”, or a “discount evaluation. Most particularly, the C.N.A. generally does not involve any forensic psychological testing of either party. Nor are there generally any bonding evaluations between the parties and child. In fact, the assessor may not even meet the child, and may not include an analysis of the statutory custody factors under N.J.S.A. 9:2-4. Rather, unless otherwise agreed, the assessor generally meets with the litigants for a limited period of time, converses with them separately, and renders a report .

More importantly, the Judge held:

When an expert has not conducted a forensic custody evaluation to serve as the foundation for a recommendation, any “expert forensic opinion” rendered by the professional regarding custody, as rendered in the content of a C.N.A., cannot be admitted into evidence as the results of a full forensic evaluation, because no such evaluation ever took place. An expert forensic opinion on custody without a forensic evaluation is essentially a net opinion. Moreover, the assessor in this case, though a mental health professional, was not a forensic psychologist.

That, however, is not the end of the analysis because the Judge also held that:

Under the doctrine of limited admissibility, however, the testimony and C.N.A. report of the assessor is admissible in part on the issue of the parties’ words, actions and conduct during the C.N.A. process, as well as any impressions and concerns the assessor experienced in witnessing same.

The first part of that essentially renders the preparer of the CNA a fact witness which seems consistent with the Rules of Evidence in terms of admissibility.  However, most fact witnesses are not permitted to testify about their opinion. Since impressions and concerns are essentially opinions, this seems to provide a way to get in through the back door what you can’t get in through the front door.  Since this is both a trial court and unreported decision, it is not precedential on any other trial judge, thus, the argument that the court should not consider the preparer of the CNA’s “impressions” or “concern” remains a viable one to make.

______________________________________________________

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

Connect with Eric: Twitter_64 Linkedin

Photo credit: Copyright: <a href=’http://www.123rf.com/profile_stuartphoto’>stuartphoto / 123RF Stock Photo</a>

Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and former editor of our Pennsylvania Family Law Blog wrote an interesting post entitled “Listening to Your Kids During Traumatic Times” .

In this post, Mark, from a child’s perspective, lists 15 things that parents going through this process should consider, as follows:

  1. As your kid, I want to love both of you fairly and equally and not have you think that my love for you diminishes my love for the person you once promised to love “forever.”

  2. Moving from one house to another sucks and it’s made even worse when you get all stressed about my leaving. I will be back, just like the court order says.

  3. You are not responsible for everything that happens to me and I realize that when parents disagree, it gets disagreeable. But please don’t make it worse by making yourself crazy. If you feel trapped, try being in my place with two powerful adults wrangling over me.

  4. Please don’t share with me what you and my other parent are fighting about. And, oh yes, I did tell you each something different about what sport I want to play because I didn’t have the courage to stand up to either of you and feel your disappointment.

  5. Let me figure out whether I like the other parent’s new significant other. I am stressed with conflicting loyalty issues already.

  6. It really, really hurts when you don’t show up for something we have scheduled.

  7. Yes, gifts and trips are great but I can tell when the motivation is “Love me more.”

  8. When I’m with you, I do miss my other parent and that does not diminish my love for you.

  9. I am not staying with you to provide information about what the other parent is doing.

  10. Understand that when you share your animosity for the other parent or the frustration you have with them, I have just about no ability to help you with that. I am just the child which usually means all I can really do is channel your stress together with mine.

  11. You may have “moved on” emotionally and found the man or woman of your dreams. Please don’t ask me to share your dream until I am ready. I also know when your “friend” is a lot more than a friend.

  12. If I score a goal or play Dorothy in the “Wiz” I would like you both there sharing my joy. If I hug the other one first afterward, it is not a judgment.

  13. I don’t need to know your side of what happened. I don’t have the coping abilities of an adult and I have never been an adult. If money (or its absence) means you can’t say yes to me, that is something you can tell me without feeling that you failed me.

  14. If there is bad news, please don’t ask me to be the courier.

  15. Over time, I may judge the other parent harshly either with justification or without. I may be asking you to listen. I do want you to listen but I’m not ready to sign up permanently for the “Hate the Other Parent” team.

I recommend that everyone take a minute to read the entirety of this very thoughtful piece.

______________________________________________________

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

Connect with Eric: Twitter_64 Linkedin

As a family lawyer who deals with custody issues, I often remember Keanu Reeve’s line in the 1989 movie, Parenthood:  “You know, Mrs. Buckman, you need a license to buy a dog, or drive a car. H(eck), you need a license to catch a fish! But they’ll let any  *&%$ (expletive) be a [parent].”  There is no instruction manual, and a divorce often brings out some of the challenges of being a parent.

Attorneys are often asked by clients what they should say to their children and how should they let their children know the divorce ( or spit between unmarried parents) is coming. The common answer is to advise the client to let the children know both parents love them; the divorce is not about them in the least; don’t worry, and everything will be fine. This conversation often comes at a time where the questioned parent doesn’t have answers as to where the children will live, what school they will go to, and what the actual custody schedule will be.

As it turns out, this might not be the best advice after all. Time.com has recently published an article  in which the writer advises that children who are anxious should not be told everything will be O.K. Rather, it is important for parents to validate children’s worries.

Often times, a child psychologist can help parents relayed the news of an impending divorce to their children. As distasteful as it may seem to sit in an office with your soon-to-be ex to come up with a plan to tell the children, it could make all the difference in the world to your children

What to do when you don’t have all the answers? First, find out exactly what it is that the child is worried about. Depending on the age, this could be at its simple as wondering whether a favorite stuffed animal will be able to come to a new home. Determining precisely what any particular child is anxious about avoids compounding the problem by giving more information than might be necessary at any given time, thereby causing more stress. Give what answers you can, without scaring the child. For example, when a child asks which parent he or she will live with in the middle of a custody evaluation, the honest. Tell the child that mom and dad haven’t made that decision yet and the judge and other professionals are going to help make that decision. Don’t ask a young child for his or her preference. This places the child in the unreasonable position of having to choose one parent over the other. Regardless of how you feel about your soon-to-be ex, most children love both parents unconditionally.

Don’t be afraid to say, “I don’t know.” But say it in a reassuring way. For a parent who does not anticipate being able to stay in the same school district, assuring that the child will be part of the process of finding a new residence and looking at new schools can make the child feel part of the decision-making and alleviate some of the fears and anxiety. It certainly may not be a perfect answer, but is better than the child being kept completely in the dark until the day the divorce is over.

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

It’s a tale as old as time. Divorced parents bash each other in hopes of garnering favor with their child during a divorce or custody dispute. At some point the child, becomes so exposed to the bashing, blame and ill-will from one parent toward another that the child becomes disenchanted with the other parent; the relationship begins to break down, sometimes, irreparably.

25487205 - unhappy family and child custody battle concept sketched on sticky note paper
25487205 – unhappy family and child custody battle concept sketched on sticky note paper

This strategy is known as parental alienation, and is being increasingly tossed around in Court battles – sometimes by a truly harmful parent who has exploited their child for a litigation win or as some sort of perverse retribution, and sometimes, it is levied against a parent legitimately attempting to protect their child from abuse or neglect.

However, in cases of true alienation, it is clear that it is injurious to all involved. University of Texas psychologist Richard Warshak, author of Divorce Poison: Protecting the Parent-Child Bond from a Vindictive Ex explains that it’s typically the emotionally healthier parent that is rejected, whereas the alienating parent thinks it acceptable to use the child as a form of punishment for the other parent. Warshak characterized it as a form of abuse toward both parent and child.

Still, as Eric Solotoff blogged in late 2012, the American Psychiatric Association board of trustees will still not go so far as to characterize Parental Alienation Syndrome as a mental illness in the DSM 5 (released in May 2013).

Yet, given the grave effects of parental alienation on both parent and child, it is no surprise that Courts are taking aggressive steps to try to restore the parent-child bond. Experts advise that alienation requires an order from a Court to allow a manipulated child time to bond with the alienated parent.

Sometimes, this will mean reunification therapy for the child and alienated parent, perhaps beginning once a week, and then gradually increasing. The therapist may ultimately place the child and parent in a “real-life” situation, like having the therapy occur in a diner, or at the park. Eventually, the parent may have parenting time alone with the child for an increasing amount of time as the relationship progresses.

For more extreme cases of alienation, where the child is completely past the point of even being open to conventional reunification therapy, the Court may order an intensive, immersion therapy program such as Stable Paths, which is described on its website as an “intensive therapeutic reunification intervention for families impacted by separation resulting from high-conflict divorce, parental alienation, and familial abduction.”

There, the families essentially move on to a tranquil campus, and immerse themselves in therapeutic activities together, such as horseback riding, cooking, sports and games. The goal is to create new memories and re-establish existing bonds and attachments in hopes of repairing the relationship. Each family leaves with a treatment plan for reunification.

The most extreme cases, however, may warrant a complete overhaul to the custody arrangement. Judges may award primary custody of the child to the alienated parent in an effort to extract the child from a toxic situation and reestablish the bond with the other parent.

In 2012, in Milne v. Goldenberg, the Appellate Division reaffirmed the necessity of trial court judges to consider removing a child from the custody of the uncooperative parent and/or imposing temporary or permanent modification of custody. The decision reinforced the holding of New Jersey courts that interference with an ex-spouse’s parenting rights is so inimical to the welfare of the child that judges should transfer custody when the non-compliance puts parent/child relationships at risk:

[T]he necessity for at least minimal parental cooperation in a joint custody arrangement presents a thorny problem of judicial enforcement in a case such as the present one, wherein despite the trial court’s determination that joint custody is in the best interests of the child, one parent (here, the mother) nevertheless contends that cooperation is impossible and refuses to abide by the decree…However, when the actions of such a parent deprive the child of the kind of relationship with the other parent that is deemed to be in the child’s best interests, removing the child from the custody of the uncooperative parent may well be appropriate as a remedy of last resort.

The Milne court reinforces that the Rules of Court provide for a change of custody as a remedy for recalcitrant parents. R. 5:3-7(a)(6) explains that remedies for violations of custody and parenting time Orders include “temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children.”

Turning custody on its head, although seemingly an effective remedy, may prove difficult to swallow for some judges. Even if the Court finds alienation has occurred, it may prove almost impossible to override the child’s wishes, who, by the time the Court is involved, may be a preteen absolutely refusing to have any relationship with the alienated parent.

Accordingly to Psychology Today, House Divided: Hate Thy Father, by Mark Teich, it will take a “sophisticated judge to realize what psychologists might see as obvious: Deep down, the child has never really stopped loving the other parent. He or she has just been brainwashed like a prisoner of war or a cult victim, programmed to accept destructive beliefs until critical thinking can be restored.”

The same sophistication is required when a judge is asked to identify whether a parent accused of alienation is merely attempting to protect his or her child from actual abuse by the other parent. Parental alienation seems to have taken on “buzz word” status in recent years, being used even in cases where there may be a legitimate concern for the child’s safety and wellbeing.

As it stands right now, alienation can be repaired, but it requires judges to:

(1) Differentiate real alienation from legitimate concerns about abuse or neglect;
(2) Order parents to intensive therapy programs and ensure that resulting treatment plans are complied with; and
(3) Overlook the supposed desires of an alienated child to see that he or she has never stopped loving their parent, but has just been brainwashed to accept untrue and very destructive beliefs.
__________________________________________________________________________________________________________________________________
Eliana Baer, Associate, Fox Rothschild LLPEliana 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.