Divorce

Subscribe to Divorce

Credibility is key when it comes to matrimonial litigation – from your initial filing through the last day of trial. In our practice, we can often make educated guesses of the range for equitable distribution and alimony from the initial consultation based upon the many statutory factors that a court has to consider and some rules of thumb in settlement negotiations. However, there are those cases that do not result in such a typical manner and the reasoning often comes down to presentation.

For a trial that I conducted in February 2016, the Appellate Division recently upheld the court’s decision awarding the plaintiff/wife 100% of the equity in one of the parties’ businesses with a value of $133,000 (where she primarily worked) and 40% of defendant/husband’s $214,000 interest in the other business (where he primarily worked), as well as determining that each party retain his/her individual retirement accounts following a long-term marriage of over 30 years.  Wife’s retirement accounts exceeded those which husband disclosed – being the key word. In addition to this equitable distribution award, the Appellate Division upheld the trial court’s 40% counsel and expert fee award for the wife, totaling $31,388.10.

Why did the wife prevail in this way? It’s pretty simple based upon a reading of the decision – her husband just could not help himself as a litigant or a witness.

As a litigant, he “stonewalled” discovery, failed to pay the support obligation order during the pre-trial phase of the litigation (a.k.a pendente lite support) that was initially agreed upon, and failed to file a complete Case Information Statement (the bible in family law cases that lists income, budget, assets and debts).

As a witness, he would not even give a straight answer for his address. While he may have thought he was being cute when he responded that the wife could have the value one of the companies, and do “whatever she wants to do with it”, the trial court and the Appellate Division used the husband’s own words against him to find that he abdicated any interest in the company.

The husband’s lack of credibility resulted in a unique comment of the Appellate Division when it stated that the trial court’s counsel fee opinion was upheld even though the trial court did not specify the factors considered under the applicable Court Rule, R. 5:3-5(c). The Appellate Division opined that “…the discussion throughout the opinion made clear he had those factors very factors in mind”. The Appellate Division again cited to the husband’s bad faith (without utilizing the term) by citing to the trial court’s findings that the requested fees were “’fair and reasonable’ and that much work was required due to the ‘recalcitrance of [the husband]’”, as well as that the wife “faced substantial difficulties” to enforce court orders and agreements, and ultimately prepare for trial.

So, what’s the takeaway? What you say and how you act at each stage of the case is important… someone is always watching and, oftentimes, that someone is your spouse’s attorney who will jump at the opportunity to show the court how you have oppressed your spouse. Having handled this trial and appeal, I can confirm that cross examining the husband and finally having the opportunity to point out all of the misbehavior was fun, but not for him. You don’t want to end up in that seat! Mind your manners even in the heat of the moment and, as painstaking as it may be, always remember that it’s better to be the “bigger person” – the games will catch up to the other!

Lindsay A. Heller, Associate, Fox Rothschild LLPLindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

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.

_________________________________________________________________________________________________________________________________________

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.

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.

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.

Camera lens/blue eye illustration isolated on white background.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.

 

 

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.

 

It may seem counter-intuitive, but the month of Saint Valentine is also generally the month that sees the highest volume of filing for divorce.  For some people, getting divorced may be their New Years Resolution.  Others wait until the start of the new year so that they can have one last holiday season with their families as usual.  Whatever the reason, many people find themselves at the beginning of the divorce process on Valentines Day.

We all know that there are any number of ballads and love songs out there that celebrate the romance of a happy relationship, and no doubt the airwaves will be filled with them today.  But you don’t want to listen to those songs if you find yourself at the start of a divorce, or even in the thick of one, this Valentines Day.  Instead, have a listen to the following anti-Valentines Day playlist and take a cue from these songs about how to approach your own divorce case:

What’s Love Got to Do With It? by Tina Turner:  When it comes to the divorce, love has nothing to do with it.  Of course, divorce can come with emotional turmoil and it is important to deal with this, perhaps with the help of a qualified therapist.  But it is helpful to consider the divorce itself as a business deal.  How are we going to wrap up and distribute the assets and debts of the marriage (otherwise known as Equitable Distribution)?  How are we going to re-distribute the division of labor (Custody and Parenting Time)?  How are we going to make sure the parties to the marriage are fairly supported in the future (Alimony)?  If possible, leave the emotion at the door, and think practically.

Do You Really Want to Hurt Me?  by Culture Club:  Ask yourself:  Are you taking a position or engaging in conduct just to hurt your spouse? Do you really want to do that?  Sometimes, you do.  We are all human, after all.  But a case driven by vengefulness and anger is not one that is likely to resolve, or resolve quickly.  And when you have spent money in legal fees because of a hurtful, non-meritorious position that went nowhere, you’re probably going to wish you had taken a different tack.  That’s not to say that you shouldn’t take a tough position – you should when the position is merited – but there is no point in being hurtful just to thumb your nose at your ex.

No Scrubs by TLC:  While the ladies of TLC were complaining about the obnoxious men in their lives…both men and women can be scrubs.  Don’t sit around talking about how you want your case to be resolved or what you think you or your ex deserve.  Instead, work towards a resolution.  Cooperate with your attorney and provide needed documents in a timely manner.  Take reasonable, and justifiable, positions.  Come to the table with ideas about how to move forward instead of focusing on the past.  If you are a proactive participant in your divorce, you will feel more empowered and comfortable with your case and the result.

I Want It All – Queen:  Many times, clients “want it all, and [they] want it now.”  Unfortunately, in most cases, you can’t have it all.  Neither can your spouse.  Cases settle based on compromises that leave everyone feeling like they won a little and lost a little.  When cases go to trial because they cannot be settled, nobody gets everything they want from the judge either.  When preparing for a divorce and beginning settlement conversations, it’s important to prioritize your goals and know what you are willing to give up to achieve your top priorities, because you are unlikely to get every single thing you want.

Cry Me a River by Justin Timberlake:  Simply put – this is what you’re going to tell your ex when they are complaining about how long the divorce is taking, or why you’re being unreasonable, or why can’t they have the dog, and so on and so forth.

Poison by Bell Biv Devoe:  Don’t let your divorce poison everything else around you and every other aspect of your life.  While divorce can feel all-consuming and scary, don’t let it run everything else you do, and don’t tell everyone who will listen about the nitty gritty details, as this is never appropriate.

Don’t Speak by No Doubt:  I am all for clients who can talk to one another and work out some of their differences amicably.  But sometimes, it’s better to say nothing at all.  You don’t want to commit to part of a deal in piecemeal, or make your spouse think that you are more or less committed to a position than you really are.  If you can’t speak honestly or productively with your spouse (and let’s face it, many people are getting divorced for that very reason), then it’s better not to speak to them at all without counsel present.

The Long and Winding Road by the Beatles:  Divorce can be a long and winding road, indeed.  While there will be ups and downs, left turns and sudden stops and starts, with the help of an attorney and a support system, you will come to the end and hopefully feel that the result is fair and equitable to both you and your spouse.

You Can Go Your Own Way by Fleetwood Mac:  I find that many clients have a hard time finding their voice and developing their own opinions.  In some cases, they are still highly influenced by their husband or wife and, oddly, inclined to listen to them even though they are in an adversarial role.  In other cases, clients may be listening to their friends about their divorces.  Whatever the reason, trust that your attorney is looking out for your best interests and will strive for your best outcome even if it’s not what your spouse thinks is right or what your friends experienced.

Stronger by Britney Spears:  Remember that what doesn’t kill you makes you stronger.  Hopefully, at the end of your divorce, you will walk away feeling like you got most of what you want, you’re stronger today than you were yesterday, and you can move on with your life better than you led it before you started the process.

Whatever you’re listening to this year, Don’t Stop Believin’ that You Will Survive if you just have some Patience and Try a Little Tenderness … okay, I’ll stop now.  Here’s hoping you hit up a different, more festive playlist next Valentine’s Day.

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.

For many divorce attorneys, the busy season starts after the first of the year. For the last several years, I have posted on the phenomenon of the New Year’s Resolution Divorce. For whatever reason, this post has struck a chord and has been both well received and cited by other bloggers. As such, given that the new year is near, I thought I would share that piece again, updated slightly for the new year.

Over the years, I have noted that the number of new clients spikes a few times of the year, but most significantly right after the new year. Before writing this article for the first time, out of curiosity, I typed “New Years Resolution Divorce” into Google and got 540,000 results in .29 seconds. There are even more results when you do the same search now. While not all of the search results are on point, many were extremely interesting. It turns out that my intuition about this topic was right and that there are several reasons for it.

One article on Salon.com put divorce up there with weight loss on New Years resolution lists. Also cited in this article was that affairs are often discovered around the holidays. Another article linked above attributed it to “new year, new life”. Another article claimed that the holidays create a lot of pressures at the end of the year that combine to put stress on people in unhappy or weak relationships. Family, financial woes, etc. associated with the holidays add to the stress. Turning over a new leaf to start over and improve ones life was another reason given. This seems to be a logical explanation for a clearly difficult and perhaps heart wrenching decision.

In my experience, people with children often want to wait until after the holidays for the sake of the children. There is also the hope, perhaps overly optimistic, that the divorce will be completed by the beginning of the next school year. These people tend to be in the “improving ones life” camp.

So as divorce lawyers, we hope to avoid or at least resolve in advance the holiday visitation disputes that inevitably crop up, then relax and enjoy the holiday as we await the busy season to begin.

In the last several years, the phenomena started early for us and many other attorneys. We were contacted by more people in December in the last few years than in any years in recent memory. In some recent years, the calls started in November at a pace more robust than in prior years. Moreover, we have heard of more people telling their spouse it “is over” before the holidays this year. I suspect that in some, it was the discovery/disclosure of a new significant other or perhaps pressure being exerted by that person that was the cause. In other cases, the person just didn’t want to wait until the new year to advise their spouse.

As noted in my blog post from last week, the reforms to the tax code may be the impetus for people on the fence to divorce in 2018 to take advantage of the last year of the deductibility of alimony.

Whatever the reason, we await those who see 2018 as a chance for happiness or a fresh start. Happy New Year?!?!

For me, my resolution will be to blog more in 2018.

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

Arbitration – essentially, a private trial in which the parties hire a fact-finder who serves in lieu of a judge – has become an increasingly common means of resolving family law disputes.  Although an arbitration may be conducted with all the formalities of a trial, usually parties can agree to dispense with certain formalities, some of which can be costly for the parties.  Arbitration takes a trial out of the sometimes messy court system, usually guarantees a decision will be made in a timely manner, and ensures that the trial does not become a matter of public record.  In family law matters where the issues can be sensitive and the testimony potentially embarrassing to the parties, this may be preferred by the parties.

Another advantage to arbitration is that the litigants are not beholden to the deadlines of the Court system.  They can move on with their lives and even get divorced, while agreeing to defer certain issues to arbitration on a more relaxed timelines.  But sometimes this can backfire.

In a recent unpublished (non-precedential) decision, Shah v. Shah, the Appellate Division addressed the question:  “What happens to an agreement to arbitrate when nobody arbitrates?”

The answer given by the Appellate Division is an interesting one, especially in light of the facts of the Shah case.  In a nutshell, here they are:

  • The Shahs entered into an agreement resolving at least some of their issues in January 2003.  As to those issues that were not resolved (and there were a whopping seventeen of them), they agreed that they would proceed to arbitration.  They agreed on an arbitrator, paid his retainer, and set a date for arbitration.  However, the arbitration did not go forward and after several years passed, Arbitrator # 1 returned the retainer.
  • In 2008, the parties mutually agreed upon a new arbitrator, Arbitrator # 2.  However, neither of them took any steps to retain him.
  • In 2009, Mr. Shah filed a motion to compel the arbitration, expand the scope of the arbitration beyond the seventeen issues identified in the parties’ agreement, and appoint a new arbitrator.  The Court granted Mr. Shah’s motion and appointed Arbitrator # 3.  The Court also entered a discovery schedule, and entered an order directing the parties as to the manner in which Arbitrator # 3’s retainer would be paid.  Despite Mrs. Shah’s apparent attempts to move forward with Arbitrator # 3, Mr. Shah did nothing.  Eventually, Arbitrator # 3 wrote to the Court to, understandably, advise that he would not arbitrate until his retainer agreement was signed.  Neither party signed it.
  • In 2015 (now twelve years after the parties agreed to arbitrate), Mr. Shah once again asked the Court to compel the arbitration, this time asking that Arbitrator # 2 be appointed.  Mrs. Shah cross-moved.  Among other things, she asked the Court to terminate the parties’ obligation to arbitrate.  The Court granted Mrs. Shah’s request, reasoning that – twelve years later – the parties were in very different financial circumstances and could not be made to arbitrate at this point.  The Court also opined that the parties had waived their rights to arbitrate.
  • Mr. Shah moved for reconsideration of the Court’s Order, which the Court denied.

That brings us to Mr. Shah’s appeal.  In pertinent part, Mr. Shah argued that the decision of the lower court should be reversed because the judge incorrectly concluded that the parties had waived their rights to arbitrate due, essentially, to the passage of time.

The Appellate Division agreed with the judge below and concluded that the parties had waived their rights to arbitrate.  This is an interesting conclusion in light of the definition of a waiver:

Waiver is the voluntary and intentional relinquishment of a known right. The intent to waive need not be stated expressly, provided the circumstances clearly show that the party knew of the right and then abandoned it, either by design or indifference. [internal citations omitted].

Indeed, under the facts of the Shah case, there was no question that the parties had unduly delayed in proceeding to arbitration.  Mr. Shah apparently admitted to the Court that he was unhappy with Arbitrator # 3’s fee and therefore did nothing to move forward with the court-appointed arbitrator he had asked for in the first place.

At the same time, there were efforts over the years to move forward with the arbitration.  The major consideration the Appellate Division seems to have made was the amount of time that had passed, regardless of the fact that the parties had – at various points over that time period – made efforts to move forward with the arbitration.  One can imagine that this could be a closer call under even a slightly different set of facts.  For example, what if the facts were identical, but had occurred over the course of five years instead of twelve?

What is clear is that at some point, if parties do not arbitrate then the right to do so is waived, even if the parties have an agreement in place to proceed to arbitration, and one of them wants to enforce it.

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.

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.

Ah, technology.  In this modern world, we navigate the roads on our phones instead of a map.  We talk to a cylindrical tube to tell it to order more toilet paper for us, tell us the weather, read us the news, or turn on the lights.  We don’t remember anyone’s phone number because they are all stored for us on our phones.  And we obtain personal jurisdiction over an out-of-state defendant via Facebook.

2969559163_00f2a6f6d4_m

 

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

Personal Jurisdiction = Sufficient Minimum Contacts + Service of Process

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

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

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

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

Recent Court Ruling Approves Service of Process Via Facebook

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

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

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

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

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

16306963 - like thumb up sign on white background 3d

Limitations on the Use of Facebook to Confer Personal Jurisdiction

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

headshot_diamond_jessica

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

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

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

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

I concluded my prior post by stating that

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

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.