It’s ok if you missed my New Jersey Law Journal article “Helicopter vs. Free Range Parenting: Endorsement of Parenting Style in the Law” published July 13, 2018. It’s been a busy summer. Now that you’re back in the swing of things, take the time to read this. I hope you’ll agree it provides an interesting perspective of the current state of the law in NJ and where we may be headed….
Once a parenting time schedule is established, parents’ next concern is the logistics with pick-up and drop-off. Even with a parenting time schedule memorialized issues arise: lateness, inconvenient locations, interference with children’s activities, etc. Most times these issues can be resolved amicably without judicial intervention. But occasionally an application must be filed with the Court to address these issues.
Recently, in the unpublished appellate decision of Devorak v. Devorak, A-4325-16T2,the Appellate Court reviewed such a case. The defendant in Devorak had filed a post-judgement motion to change the previously agreed upon driving responsibilities for visitation, amongst other issues. At the time of divorce, both parties resided in the same town and they agreed that they would share alternate weekends for parenting time with the child and the defendant would pick up their daughter after he was done with work on Friday evening and bring her back on Sunday. Defendant further agreed that he would “be responsible for all transportation for his parenting time, unless other arrangements [were] mutually agreed upon by the parties.”
Plaintiff later moved to New York City, but on November 22, 2013, the parties entered into a consent order where she agreed to relocate to New Jersey, and defendant agreed to temporarily provide transportation to and from his weekend parenting time until plaintiff moved back to New Jersey. However, the consent order did not address the parties’ driving responsibilities upon plaintiff’s relocation to New Jersey. Thereafter, plaintiff moved to Roseland, New Jersey and defendant moved to Ewing, New Jersey. On September 20, 2016, defendant filed a motion seeking an order compelling “[t]he parties to share equally the driving responsibilities regarding parenting time,” amongst other issues. Plaintiff cross-moved for an order compelling defendant to “be required to do all the traveling in connection [with] his visitations with the parties’ child . . . ,” amongst other things, and argued that defendant received the benefit of his bargain in that he did not have to pay alimony and paid “modest” child support in return for doing all of the driving.
Despite Plaintiff’s arguments, the Judge determined that “it [was] fair and equitable [for them] to share in the transportation responsibility[,]” and granted defendant’s motion for the parties to “equally share driving responsibilities for parenting time . . . .” The judge further ordered the parties to “agree [to] a pickup and drop off location equidistant between their current residences” of Ewing and Roseland. In rendering his decision, the Judge reviewed the history of the parties’ residences from the time of the final judgment of divorce, as well as earlier orders dealing with parenting time. On appeal, the Appellate Court stated that it agreed with the trial court’s decision for the reasons cited by the trial court judge, while also dismissing the appeal on procedural grounds.
Here is case where the parties bargained for a driving schedule at the time of their divorce, but due to subsequent decisions by the parties, including moving, the Court determined that the drop off logistics should be altered, despite the parties prior agreement. Whether or not you agree with the Court’s decision on this, the lesson to be learned is that these issues must be addressed with clear provisions at the time of negotiation. Being amicable with a former spouse is certainly the best way to co-parent, however it is smart to also be prepared for future circumstances to the extent they can be planned for. Driving responsibilities is one of those such issues.
Remanding a 2017 trial court decision in a renowned same-sex custody matter, the New York Supreme Court, Appellate Division, held yesterday in the Matter of K.G. v. C.H., that while a non-biological, non-adoptive party to an adopted child did not have standing as a “parent” under New York Domestic Relations Law Sec. 70 to pursue custody and visitation based solely on a preadoption agreement reached during the parties’ relationship to adopt and raise a child together, the trial record was incomplete as to whether such standing could be achieved based on an equitable estoppel theory.
A brief history of the extensive fact-pattern is worth noting here, since the Appellate Division’s affirmance of the trial court’s conclusion that K.G. lacked standing as a parent based on the preadoption agreement was essentially limited to the facts of this case.
The parties were in a romantic relationship that concluded in December, 2009. In 2007, they agreed to internationally adopt and raise a child together. The parties’ planned for C.H. to complete the adoption, the child would arrive in the United States, and K.G. would second adopt the child to become a legal parent.
Based on the above general facts and underlying details developed at trial, the trial court held that the “parties’ mutual intention to raise an adopted child together did not survive the end of their romantic relationship.” As a result, the trial court, as affirmed by the Appellate Division, rejected K.G.’s argument that the mere creation of the preadoption agreement conveyed standing upon K.G. to seek custody and visitation with the child. In so affirming, the Appellate Division noted that the trial court’s decision did not mean that – in every case – the mere end of a romantic relationship does not, in and of itself, terminate the plan to adopt and raise a child together. Rather, said plan terminated under the specific facts and circumstances at issue.
The Appellate Division also held that the trial court’s ruling on this component of its decision was consistent with the 2016 Court of Appeals seminal decision in Matter of Brooke, which expansively defined who is a “parent” under New York’s Domestic Relations Law to include non-biological, non-adoptive parents and, as a result, who has standing to seek custody and visitation of a child. The Appellate Court provided:
Contrary to K.G.’s arguments, this legal analysis does not eviscerate Brooke. If the parties have a plan in place when a particular child is identified, then they become parents under Domestic Relations Law Sec. 70 at that time, with standing thereafter to seek custody/visitation in the event of a change in the household.
As noted above, however, the Appellate Court remanded so that the trial court could more fully develop the record and consider K.G.’s position that she has standing as a “parent” under an equitable estoppel theory designed to ensure fulfillment of the child’s best interests stemming from a recognized parent-child relationship. Specifically, “under Domestic Relations Law Sec. 70, equitable estoppel concerns whether a child has a bonded and de facto parental relationship with a non-biological, non-adoptive adult” with the emphasis placed on the child’s point of view. the key is whether the relationship between the subject adult and child “rises to the level of parenthood.”
As a result of the incomplete record, the Appellate Court could not rule on what factors a court should consider to establish “parent” status under the estoppel concept. In so holding, the Court found that C.H. had a right to be heard in opposition to the estoppel theory, and the child’s voice was not heard (K.G.’s requests during the trial court matter for the appointment of an attorney for the child, a forensic evaluation and/or a Lincoln hearing where the child undergoes questioning by the judge in private).
Developments in this newsworthy case will continue to unfold as the trial court conducts further proceedings in a manner consistent with the Appellate Court’s ruling.
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Robert Epstein is a partner in Fox Rothschild LLP’s Family Law Practice Group and practices throughout New Jersey and Manhattan. He can be reached at (973) 994-7526, or repstein@foxrothschild.com.
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Although the typical matrimonial practitioner may not undertake Division of Child Protection and Permanency (“Division”) on a regular basis, we oftentimes face situations wherein a trial court, in a related matrimonial proceedings, determines Division investigations to be relevant to determinations of custody and parenting time before it. The recent case of DCP&P v. R.R., — N.J. Super. — (Mar. 19, 2018)(slip. Op. at 13), is an interesting new opinion that offers some guidance as to whether these types of investigations may be rendered reliable and when they may be challenged.
There, the subject father appealed from a finding of the Division following an investigation initiated at the request of a Family Part judge in a related matrimonial proceeding, that allegations he abused or neglected his daughter, E.R., were “not established.” In assessing whether to accord deference to such finding, the Appellate Division noted several omissions in the Division’s screening summary, including that the court’s concerns were inaccurately conveyed to the Division; the screening summary inaccurately identified the child involved; and, inaccurate details were recorded.
The Appellate Division ultimately concluded that the Division’s finding was “arbitrary and unreasonable, because the Division failed to consider essential documents and relevant facts,” including failing to obtain and review submissions in the matrimonial matter; or, any testimony presented at the hearing on the return date. In so finding, the Court stated:
Although the record does not include these documents, it was incumbent upon the Division in this case to consider them as part of a reliable investigation…We recognize that the Division’s regulation governing “requirements for an investigation,” N.J.A.C. 3A:10-3.1, does not require review of relevant court documents. See also N.J.A.C. 3A:10-2.4 (evidence needed to support a finding). However, we cannot have confidence in an investigation – nor are we obliged to defer to the resulting finding – where the Division overlooked such relevant information under the circumstances of this case. Cf. In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 386 (2013) (“failure to consider all evidence in a record would perforce lead to arbitrary decision making” and a “decision based on a complete misperception of the facts . . . would render the agency’s conclusion unreasonable”); see also Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001) (stating that an appellate court’s deference to an agency decision “is premised on our confidence that there has been a careful consideration of the facts in issue”).
Where to use this type of case: If a trial court determines a Division investigation to be of import to its underlying findings as to custody and parenting time without examining the quality of the investigation done, particularly where the Division’s finding lacks fair support in the investigatory record that the Division compiled.
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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.
Technology is making it easier and easier to satisfy our curiosity about just what the heck the people in our lives are up to. Are you curious about your husband’s whereabouts? You could plant a GPS device on his car. Do you want to know what your wife is saying to the kids? There are many ways to go about recording those conversations. Are you dying to know what your spouse is doing on that laptop, tablet, or smartphone of his/hers? You could install spyware or other programs (I’ve even heard of some of them referred to as “spouseware”) to secretly find out. Learning about your spouse’s or ex’s comings and goings, who they are living with, or what they are talking to the kids about can all be valuable information when there are custody issues, questions about whether your ex is cohabiting with someone else for purposes of termination or suspension of alimony, and many other legal issues. It’s certainly tempting…
BUT DON’T DO IT. At least not without talking to an attorney. Because even though technology gives you the ability to do this, it doesn’t make it right and it doesn’t make it legal.
I am seeing these issues come up more and more in my practice, and while much is unclear about where the boundaries can and should be drawn because of the fact sensitive nature of the use of technology in family law cases, a few things appear clear to me. Using technology to track your spouse or significant other leaves you open to a claim of stalking under the New Jersey Prevention of Domestic Violence Act. When you use technology to record parties to a conversation without their consent, you may also be subject to criminal and civil liability under Federal and State wiretapping laws – in New Jersey, this is known as the New Jersey Wiretapping and Electronic Surveillance Act, N.J.S.A. 2A:156A. This is not to mention other civil claims such as invasion of privacy.
This is why it is critical that, before you take any step to use technology to surveil your spouse, you speak with an attorney to ensure that you are not doing anything that may subject you to civil or criminal liability, or to discuss alternative options that will allow you to surveil your spouse or family member without taking this risk. When you are dealing with a criminal charge of stalking, the “But the private investigator I consulted with said it was okay” defense is no defense at all. While private investigators know all about technology that can be used to surveil your spouse or other family member, they are not always thinking about or even aware of the legal ramifications of their advice.
And, importantly, once the proverbial cat is out of the bag and your spouse or other family member learns that they were being spied on, you cannot try to cover your tracks by destroying the evidence – this is known as “spoliation” of evidence and if you do it, you will likely be subject to sanctions and/or adverse inferences drawn by the Court. In other words, the Court will punish you for destroying evidence, and may assume that you did engage in the illegal use of technology by virtue of the fact that you felt the need to destroy the evidence of your conduct. Just ask the Plaintiff in the recent case out of New York State, Crocker C. v. Anne R., in which the Plaintiff installed spyware on his wife’s electronic devices to monitor all of her communications and listen in on her conversations with third parties including privileged communications with her attorneys and her psychiatrist. When the Defendant discovered this, the Plaintiff immediately “wiped” all trace of the spyware from these devices so that it was not possible to determine the extent to which he intercepted her communications. He was sanctioned and found in contempt.
And if you find yourself on the receiving end of being spied on by your spouse or family member, it is critical to obtain the immediate services of a forensic expert who can examine any device being used to record or surveil you and can take steps to preserve any such device for evidence purposes.
Remember: In many ways, the legal uses of technology – especially in the context of family law issues – is a bit like the Wild West. We are still trying to figure out the rules and the exceptions to those rules when it comes to the legal issues that arise in family law disputes, and it is always best to consult with an attorney before taking action.
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.
You never know when or where the next video camera or recording device is going to show up. And when you’re in the middle of a contested divorce, particularly if there are custody issues, caution is key. I was reminded of this recently when a local news channel reported on complaints against Amazon delivery drivers who had thrown packages at customers’ doors. The drivers had been caught because the homeowners had set up video cameras to monitor anyone coming up to the front door.
A 2 minute Internet search provides countless options for a shopper who is looking to set up some type of surveillance on practically anyone. Hidden cameras (and not so hidden cameras), GPS devices and sound recorders have come a long way. The reality is that any litigant has to assume that the person on the other side of a matter is going to use any and all available methods to win their case.
Some real time examples: a case in which a recovering alcoholic looking to regain custody of her son was video photographed in a bar with a glass of wine; a father looking for shared custody certified in court documents that his live-in girlfriend was not a smoker just to have his soon-to-be ex-wife provide the court with pictures of his girlfriend is smoking (which had been taken from his Facebook page). In another example, a client receiving alimony was captured with a live-in boyfriend based upon a small camera that had been placed on the telephone pole across the street from her house. A “friend” of a woman seeking alimony taped a phone call in which the woman admitted she had a secret stash of thousands of dollars. All of these images or recordings were admissible in court proceedings and were used against the litigants.
When involved in litigation, particularly in family type situations, the sad reality is that people have to assume that they are being photographed or recorded practically at all times. This is time to be the best version of yourself and as hard as it may be, refrain from doing and saying things that can hurt your position. Even if you are you are speaking or with a confidant.
That being said, the reality is that people do and say things that in retrospect they wish they hadn’t. When this happens, immediately advise your attorneys so damage control can commence. Better you have control of the situation, no matter how bad.
Jennifer 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.
With Chanukkah almost behind us and Christmas rapidly approaching, the time for being jolly is unfortunately also a peak time for parental conflict in divorcing and divorced families. What one would think (hope) would be a relatively simple discussion between adults in an effort to resolve such issues often turns into something far worse. Court applications often result where judges are called upon to make last minute decisions about where the children should be, who they should be with, and for what amount of time.
With that being said, here are a few things to keep in mind as a parent mired in such a conflict….
“It’s Christmas All Over Again” – Parents should do their best to resolve holiday conflicts amongst themselves, without involving the children. Unfortunately, all too often the kids are brought into the picture, with one parent telling them how the other parent is a bad person, is at fault for some reason regarding the holidays, and worse. Parents often believe it is necessary to justify/defend their actions to sway the kids to his or her side, but the impact on them is immeasurable. Over time, kids who simply want to enjoy what is one of the best times of the year end up dreading its arrival because they know that there will always be some argument between mommy and daddy to tarnish the occasion.
“Wonderful Christmastime” – One way to ensure a merry holiday season is to address parenting time issues well in advance of when the time arrives. This is not just limited to Chanukkah or Christmas parenting time, but all holiday parenting time. Oftentimes, these issues are addressed during a divorce matter in a piecemeal or triage fashion, for a variety of reasons that may or may not be within your control. The result is often less than ideal, and may become yet another dispute to address in the context of an ongoing matter. Try to reach a resolution in advance, if possible, for the best interests of the kids and, quite frankly, everyone else involved.
“I Saw Mommy Kissing Santa Claus” – If you are considering bringing a significant other to the holiday dinner, it goes without saying that it should not be done in a manner that negatively impacts upon the kids. More importantly (and obviously), do not do so in violation of a court order that imposes restrictions on your ability to introduce or involve a significant other in the kids’ lives. Such an order oftentimes issues in the midst of a divorce matter. The situation can often be very delicate, and should be approached with care. If a child is in therapy, consider whether to discuss with the therapist how to best bring/introduce a new person to such an occasion.
“Happy Xmas (War is Over)” – While John Lennon’s famous holiday song carried heavier political overtones, there is always a way to apply it to a family law blog post. If you are going to file an application with the court to address holiday parenting time issues, please do not wait until the last minute to do so. Seeking relief for these issues should not be an ambush. It should not leave in flux for the kids what is going to happen. It should be done with notice to the other party so that he or she can properly respond. Judges have more than enough going on and if he or she sees that you could have brought the application several days, if not weeks prior, oftentimes they will be less than pleased with having to address the situation under such circumstances.
With these tips in mind, hopefully you are able to not only avoid or properly address the sort of holiday parenting time conflict that comes our way year in and year out, but also that your kids will be able to enjoy the season with a sense of calm and peace of mind.
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Robert 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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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):
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.
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.
According to the NJUCCJEA, circumstances will have changed so as to divest New Jersey of jurisdiction when either of the following occur.
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.
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:
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.
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.
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.
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 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.
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:
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 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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