Visitation/Parenting Time

As we have blogged before, in light of the Constitutional protections given to parents, grandparent visitation is very hard to obtain because the grandparents have to show harm to a child to meet their burden.  What happens, however, if parties agree to grandparent visitation and the parent then either changes their mind or reconsiders decides that the grandparents shouldn’t have visitation anymore?  Must the grandparents then have to prove harm, as if there never was a consent order in the first place because there was no proof that the visitation was necessary to avoid harm to the child.  That is exactly what a trial court, in the case of Slawinski v. Nicholas held.  Note that that basis for the motion to terminate the visitation was a claim that the child was upset by the visits, was not properly cared for during the visits and further, that the grandparent allowed the child’s father to be present at a visit even though his visitation had been suspended by a prior court order.  However, in a reported (precedential) opinion, released on December 6, 2016, the Appellate Division reversed and held that a parent could not unilaterally modify a consent order for grandparent visitation.

46606060 - grandparents having great fun with their grandchild

The parent’s attorney argued that she  should not have the burden to demonstrate grounds to terminate visitation inasmuch as the original Consent Order was entered by consent without any judicial findings that the visitation was beneficial. The attorney further contended, “[T]here is no burden that my client has to do anything other than say this is not working out, I tried.” The trial judge agreed and held that since the order was entered by consent, defendant was entitled to terminate visitation unless plaintiff could demonstrate, by a preponderance of the evidence, “that denial of visitation would result in harm to the child.”

In the decision, the Appellate Division provided a concise primer on the state of grandparent visitation, as follows:

We recognize that a parent’s fundamental right to raise a child as he or she sees fit encompasses the authority to determine visitation by third parties, including grandparents. See Moriarty v. Bradt, 177 N.J. 84, 114-15 (2003), cert. denied, 540 U.S. 1177, 124 S. Ct. 1408, 158 L. Ed. 2d 78 (2004). Yet, that autonomy gives way to the need to protect the child from harm. Id. at 115. Thus, “grandparents seeking visitation . . . must prove by a preponderance of the evidence that denial of the visitation they seek would result in harm to the child.” Id. at 88. “If the court agrees that the potential for harm has been shown, the presumption in favor of parental decision making will be deemed overcome.” Id. at 117.

Still, proof of harm involves a greater showing than simply the best interests of the child. Id. at 116 (stating that a dispute between a “fit custodial parent and the child’s grandparent is not a contest between equals[,]” consequently “the best interest standard, which is the tiebreaker between fit parents, is inapplicable”). Substantively, it is a “heavy burden.” Major v. Maguire, 224 N.J. 1, 18 (2016); cf. Fawzy v. Fawzy, 199 N.J. 456, 479 (2009) (“The threat of harm is a significantly higher burden than a best-interests analysis.”). The harm to the grandchild must be “a particular identifiable harm, specific to the child.” Mizrahi v. Cannon, 375 N.J. Super. 221, 234 (App. Div. 2005). It “generally rests on the existence of an unusually close relationship between the grandparent and the child, or on traumatic circumstances such as a parent’s death.” Daniels v. Daniels, 381 N.J. Super. 286, 294 (App. Div. 2005). By contrast, missed opportunities for creating “happy memories” do not suffice. Mizrahi, supra, 375 N.J. Super. at 234. Only after the grandparent vaults the proof-of-harm threshold will the court apply a best-interests analysis to resolve disputes over visitation details. Moriarty, supra, 177 N.J. at 117.

The Appellate Division then discussed the impact of a consent order on the above law, and held:

But nothing about a parent’s right to autonomy warrants allowing a parent to unilaterally modify or terminate a consent order on grandparent visitation. The parent effectively waives that autonomy by entering into the order, just as a parent waives rights when entering into any other consent order governing custody or visitation. Given our respect for the consensual resolution of family-related disputes and the stability such agreements achieve, modification of a consent order governing grandparent visitation must be considered according to the same Lepis changed circumstances framework applicable to other custody and visitation orders.

The Appellate Division then provided the necessary procedure to follow should a parent wish to modify a Consent Order for Grandparent visitation, as follows:

Consistent with this approach, the court should apply the standard governing grandparent visitation if the movant-parent also succeeds in establishing changed circumstances. That is to say, the court must consider whether or not the modification of a grandparent’s visitation will cause harm to the child, as distinct from considering the best interests of the child.3 If the modification will not cause harm, the court must grant the modification even if the grandparent could show doing so was contrary to the child’s best interests.

When the parent is the movant, the parent bears the burden to establish grounds for modification. See Beck v. Beck, 86 N.J. 480, 496 n.8 (1981) (“[W]hen seeking joint custody after an initial custody determination has been made, even a parent enjoying such a relationship must satisfy the same burden of proof as applies to anyone seeking to change a custody decree, namely, a change of circumstances warranting modification.”); Abouzahr, supra, 361 N.J. Super. at 152 (assigning burden to show change of circumstances and child’s best interests to “party seeking a modification”); Sheehan, supra, 51 N.J. Super. at 287 (stating “the party seeking a modification bears the burden of proof”).

Thus, in a grandparent visitation case, the parent seeking modification bears the burden to prove changed circumstances and that the child would not suffer a particular, identifiable, child-specific harm, see Mizrahi, supra, 375 N.J. Super. at 234, if modification were ordered. Given that a grandparent’s burden to prove harm is more onerous than satisfying a best interests test, the parent’s burden to prove the absence of harm is less onerous than the best interests test. See Moriarty, supra, 177 N.J. at 113 (noting that a best interests test can be satisfied although the child suffers no harm) (citing Watkins v. Nelson, 163 N.J. 235, 248 (2000)); cf. Morgan v. Morgan, 205 N.J. 50, 63-65 (2011) (noting that a custodial parent’s burden to prove good faith and lack of harm in order to remove the child is less onerous than a showing of best interests). Once the parent establishes changed circumstances and the absence of harm, the court must grant the parent’s requested modification.

The Appellate Division was clearly wrestling with the long standing public policy favoring the settlement of disputes as juxtaposed against a parent’s constitutional rights as it relates to their children.  That said, one wonders whether a parent would be willing to give up their autonomy, especially in questionable circumstances, if they have will have to expend a lot of time and money to terminate the grandparent visitation in the future.

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

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

43372204 - forensic psychologist indicating word clinician and therapist

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

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

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

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

 

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

Of note, Judge Jones held that:

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

More importantly, the Judge held:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) Differentiate real alienation from legitimate concerns about abuse or neglect;
(2) Order parents to intensive therapy programs and ensure that resulting treatment plans are complied with; and
(3) Overlook the supposed desires of an alienated child to see that he or she has never stopped loving their parent, but has just been brainwashed to accept untrue and very destructive beliefs.
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Eliana Baer, Associate, Fox Rothschild LLPEliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

In many custody disputes, a primary area of concern is one parent’s ability to relocate with the children after the divorce is over.  Relocation requests have been characterized as often resulting in “heart-wrenching” decisions.  As we have previously discussed on this blog, the legal standard to be applied to a parent’s interstate removal application differs if the parent is the primary caretaker as compared to an equal/”shared” physical and legal custodian with the other parent.  The two standards are briefly explained below:

US

Equal/”Shared” custodial parents:  If the parents “truly share both physical and legal custody,” then the moving parent must prove that the best interests of the children would be better served by residential custody being primarily vested with the relocating parent.

One primary custodial parent:  On the other hand, if one parent is the primary caretaker, that parent’s request to relocate with the children is governed by the two-prong Baures test – specifically, the moving party has to prove by a preponderance of the evidence that (1) there is a good faith reason for the move; and (2) the move will not be inimical to the children’s interests.  The Baures test is analyzed in the context of twelve (12) factors set forth in that case, and is more favorable to the primary custodian seeking relocation.  In fact, it is this favorable standard that often sees non-custodial parents claiming “de facto” equal custodial status in response to a primary custodian’s relocation motion so as to convince the trial judge to utilize the best interests standard.  As an aside, there exists pending legislation that would alter this favorable legal standard.

What happens, then, if there exists a so-called non-relocation agreement and a primary custodian seeks to relocate interstate?  The Appellate Division was faced with that issue in the newly published (precedential) decision of Taormina Bisbing v. Bisbing.  Here are the facts that you need to know:

  • The parties were married in 2005 and the children were born in 2006.  Both parties were highly-paid professional employees, with wife earning more than husband.
  • In early 2013, husband investigated job opportunities in Colorado and California.  The parties separated in August, 2013 and, in November, wife began a long distance relationship with a Utah resident who had children from a prior marriage.  The Utah resident owned a business in Idaho and had business interests requiring him to frequently travel to California and Louisiana.
  • On March 8, 2014, the parties entered into a marital settlement agreement wherein they agreed to joint legal custody, and that wife would have primary residential custody under the condition that she would not relocate outside of New Jersey.  The MSA also provided that dad would have “broad, reasonable and liberal timesharing” of the children – Father’s Day, his birthday, every other weekend and on one weeknight during the weeks when he did not have parenting time, every other Thanksgiving, Christmas Eve, Christmas Day, New Year’s Eve, New Year’s Day, and school breaks.  Each parent was entitled to attend all sporting events and activities regardless of which parent was scheduled to have parenting time.
  • As to relocation, the agreement provided:

The parties agree that each shall inform the other with respect to any change of residence concerning himself or herself or the said   minor Children for the period of time wherein any provision contained in this Agreement remains unfulfilled. The parties represent that they both will make every effort to remain in close proximity, within a fifteen (15) minute drive from the other. Neither party shall permanently relocate with the Children from the State of New Jersey without the prior written consent of the other. Neither parent shall relocate intrastate further than 20 miles from the other party. In the event either party relocates more than 20 miles from the other party, the parties agree to return to mediation to review the custody arrangement. In the event a job would necessitate a move, the parties agree to discuss this together and neither will make a unilateral decision. Neither party shall travel with the minor Children outside of the United States without the prior written consent of the other party.

The parties hereby acknowledge that the Children’s quality of life and style of life are provided equally by Husband and Wife.

The parties hereby acknowledge a direct causal connection between the frequency and duration of the Children’s contact with both parties and the quality of the relationship of the Children and each party.

The parties hereby acknowledge that any proposed move that relocates the Children any further away from either party may have a detrimental impact upon the frequency and duration of the contact between the Children and the non-moving party.

  • On April 16, 2014, a final judgment was entered that incorporated the terms of the settlement agreement.  Husband represented that, after the divorce, he was very involved in the children’s lives, coached their teams, took them to activities, and attended school events.
  • One month after the divorce, wife sent an email to husband telling him that, although she received no alimony, she was planning to leave her job on July 1, 2014 to be a full-time stay-at-home parent, which she did.
  • On January 8, 2015, wife called husband to tell him of her intention to get married to the Utah resident and relocate to Utah.  Wife asked for husband’s permission to relocate with the children.  Husband refused, indicating that she could move and leave the children with him.
  • On March 16, 2015, wife filed a motion to relocate with the children to Utah without the need for a plenary hearing.  The court granted the motion – without a hearing – so long as a visitation schedule could be established through mediation.
  • On July 14, 2015, after unsuccessful mediation, with only wife suggesting a parenting plan, the court issued a supplemental order establishing a parenting time and communication schedule using most of wife’s suggestions.  Eleven days later, wife and the children “left for a vacation to Utah.”  Three days thereafter, she permanently relocated with the children in Utah.

In reversing and remanding for a plenary hearing, the court found:

  1. The best interests of the child standard should be applied if wife was found to have negotiated the settlement agreement in bad faith.
  2. If no bad faith finding is made, the court is to consider whether wife proved a substantial unanticipated change in circumstances “warranting avoidance of the agreed-upon non-relocation provision and simultaneously necessitating a Baures analysis.”
  3. If the settlement agreement was deemed to have been negotiated in good faith, but wife fails to prove a substantial unanticipated change in circumstances, the court is to apply the above-referenced best interests of the child standard.
  4. In other words, wife could only receive the “benefit” of the Baures standard if wife was found to have negotiated in good faith and proved a substantial unanticipated change in circumstances.

Under such guidance, the Court distinguished from the notable prior trial court decision of Shea v. Shea,wherein the father accused the mother of of manipulating the Baures procedure by settling the divorce, and immediately thereafter filing for removal so as to reply upon the more favorable burden of proof.  Here, the Court critically found that husband was entitled to a hearing to prove whether wife manipulated the situation to obtain “favorable Baures removal procedures” that:

  1.  When wife entered into the agreement, she may not have definitely known of the “material facts and circumstances forming the good faith reason for the removal request” (i.e., moving to Utah to marry her boyfriend).
  2. The non-relocation provision did not exist in the earlier matter.

In so holding, the court found:

Similar to the situation in Shea, the close proximity between the parties’ agreement and [wife’s] plans to relocate provides evidence of suspicious circumstances requiring a plenary hearing.  If, after holding a hearing, the family court finds that [wife] negotiated in bad faith, it should then analyze the relocation request under a “best interests” analysis.

The non-relocation was to be considered even if wife is found to have negotiated in good faith, “without manipulative intent” premised on New Jersey’s strong public policy favoring agreements that resolve marital disputes.  In damning tone, the Court found:

Thus, [wife], in a written and voluntarily agreed-upon contract, specifically surrendered her “freedom to seek a better life” in another state while obtaining primary custody of the children, and was well aware of that agreement when she chose to remarry and move far away.

While the relocation language of the agreement considered new employment as a basis for moving, it did not mention remarriage, thereby leading the Court to suggest that testimony would reveal whether remarriage was a considered eventuality at the time of the agreement and, thus, not an unanticipated substantial change in circumstance.  The Court also noted that, if the Baures standard was to ultimately apply, the trial judge would be charged with analyzing the effect on the children of moving away from both parents’ extended families.

When I first read the facts, I was saddened, but not at all shocked at what seemed to be a clear manipulation of the prevailing legal standards discussed above.  I have been involved in many cases on both sides of the relocation argument, and have seen the devastation that can result.  A difficult situation becomes all the more tragic when it is clear that one party is not proceeding in good faith.  What wife seemingly did here is just as bad as the non-custodial parent who claims de facto equal custodial status just to have the best interests standard applied.  It is for these reasons, in part, why the pending legislation mentioned above makes sense in some form – to remove this sort of gamesmanship from the equation when children are involved and the relationships with one or both of their parents is potentially at stake.  The Appellate Division certainly got it right here with a just result.

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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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Whether it is because of busy dockets or the fact that the issues could be hard to decide, especially without a plenary hearing, the use of parent coordinators (PC) began becoming more frequent about 10 years ago.  Sometimes it was by consent but other times, it was foisted upon warring parties whether they wanted it or not.  A new reality of “let the parenting coordinator referee the disputes” became a new reality for many.  In fact, in 2007, the Supreme Court implemented a pilot program for the use of parent coordinators in several counties which had both guidelines and a model order.  The goals were laudatory:

A Parenting Coordinator is a qualified neutral person appointed by the court, or agreed to by the parties, to facilitate the resolution of day to day parenting issues that frequently arise within the context of family life when parents are separated. The court may appoint a Parenting Coordinator at any time during a case involving minor children after a parenting plan has been established when the parties cannot resolve these issues on their own.

The Parenting Coordinator’s goal is to aid parties in monitoring the existing parenting plan, reducing misunderstandings, clarifying priorities, exploring possibilities for compromise and developing methods of communication that promote collaboration in parenting. The Parenting Coordinator’s role is to facilitate decision making between the parties or make such recommendations, as may be appropriate, when the parties are unable to do so. One primary goal of the Parenting Coordinator is to empower parents to develop and utilize effective parenting skills so that they can resume the parenting and decision-making role without the need for outside intervention. The Parenting Coordinator should provide guidance and direction to the parties with the primary focus on the best interests of the child by reducing conflict and fostering sound decisions that aid positive child development.

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What was clear was the “The Parenting Coordinator may not make any modification to any order, judgment or decree, unless all parties agree and enter into a consent order” though this was often honored in the breach and PCs were vested with far more authority than the law allowed.

The issue that then came up was whether a Parent Coordinator appointed in a non-pilot program county had to follow the Supreme Court Guidelines.  We and others had cases where we objected to what we believed was the PC overstepping their roles and heard both PCs and court’s say that they were not bound to the pilot program guidelines.  The Appellate Division disagreed in Milne v. Goldenberg, a reported decision that we previously blogged on.

In 2012, the pilot program ended, however, the use of parent coordinators was not abolished.  Rather, court’s could still appoint PCs and parties could agree to use them.  Does that mean that a court could simply defer decision making to the PC?  Once again, the answer was a resounding no in the case of Parish v. Kluger, an unreported (non-precedential) decision of the Appellate Division decided on March 17, 2016, which was the latest chapter in the long standing litigation between these parties.  In fact, I was involved in the original reported decision in this matter dealing with similar issues, as we blogged on in 2010.  In that decision, the Appellate Division held that judge’s must decide enforcement motions, noting:

We also emphasize that judicial review of enforcement motions, no matter how time consuming, is essential to discerning which motions pose problems mandating immediate attention and which describe matters that are trivial. If a court finds a motion is based on unsubstantiated allegations; is frivolous, repetitive, or intended to harass the former spouse; is the result of abusive litigation tactics; or is designed to interfere with court operations, the judge has the power to craft appropriate sanctions to curb such manipulations. When the imposition of sanctions fails, injunctive relief may be warranted.

The Court also made clear that parent coordinators could not address enforcement issues nor could they modify parenting plans. Further, a trial court must make decisions on motions and cannot abdicate that responsibility to third parties or experts.

One would think that with this history in this case, that it couldn’t happen again, but it did.  In the 2016 decision, the Appellate Division wrote:

If, as plaintiff claimed, defendant was preventing him from exercising parenting time as per the MSA, then he was entitled to a remedy. If, as defendant claimed, plaintiff failed to exercise his parenting time out of disinterest, then the court’s decision to not alter parenting time was appropriate. The court should have resolved that dispute. When the court’s decision is considered in its entirety, it could be interpreted – as plaintiff has interpreted it – to vest in the parenting coordinator the resolution of the parties’ conflicting positions as to why the MSA parenting plan was not working. The court has no authority to delegate its decision making to a parenting coordinator. Further, a trial court has no authority to require parties to “abide by [the parenting coordinator’s] recommendations.”

That last sentence is important, “…court has no authority to require parties to “abide by [the parenting coordinator’s] recommendations.”  Too often, PC orders would expressly or impliedly give the PC the final say, with the trial court as a rubber stamp and/or requiring the losing party to file a motion so that the PC’s recommendation would not become a de facto Order.

The takeaway from this case is clear.  PC’s don’t make decisions.  Court’s make decisions.  Court’s cannot tell parties to follow a recommendation of a PC in advance, and moreover, even after it is issued, without fully assessing the issues and making independent fact findings.  Given that this is the case, in the real high conflict cases where one of the parties is inevitably going to oppose a PC recommendation and take the issue to court, what is the point of having a PC in the first place?

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com. Connect with Eric: Twitter_64 Linkedin

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In today’s ever-increasing mobile society, divorced or separate families find themselves relocating for a variety of reasons, including employment opportunities, new relationships, financial incentives and to be closer to family.

But what happens after families relocate out-of-state and child custody issues arise? Which state has jurisdiction to hear the matter?

Background

In 1968, the Uniform Child Custody Jurisdiction Act (UCCJA) was promulgated in order to prevent parental interstate kidnapping and forum shopping by the non-custodial parent (i.e. attempting to secure a more favorable forum to litigate child custody and parenting time issues in order to obtain a better result) by creating a uniform system for states to determining interstate custody and parenting time jurisdictional issues. By 1981, all 50 states had adopted their version of the UCCJA.

However, in December 1980, prior to all 50 states adopting the UCCJA, Congress enacted the Parental Kidnapping Prevention Act (PKPA). The PKPA was enacted to address interstate custody jurisdictional problems that continued after the enactment of the UCCJA, but ended up being largely inconsistent with the UCCJA and created almost 30 years of conflicting case law.

To address both the problems stemming from the UCCJA and the PKPA, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was created in 1997. To date, the UCCJEA has been adopted by 49 states and the District of Columbia (except for Massachusetts) and various U.S. territories.

Two of the major revisions made to the UCCJEA were the prioritization of home state jurisdiction and the vesting of exclusive, continuing jurisdiction in the State that entered an original/initial child custody order.

Home State Jurisdiction

The first major revision to the UCCJEA was the establishment of Initial Child Custody Jurisdiction or “home state” jurisdiction. “Home state” is defined as, “the State in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the State in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.” See Section 101 (7) of the UCCJEA.

Pursuant to Section 201 of the UCCJEA, in interstate child custody matters, a state is granted jurisdiction to make a child custody determination only if:

(1) The state was the “home state” of the child on the date of the commencement of the judicial proceedings, or was the home state of the child within the six (6) month period before the commencement of the judicial proceeding, and the although the child is not residing in the state, a parent or person acting as a parent continues to live in the state;

(2) A court of another state does not have jurisdiction, or the home state of the child has declined to exercise jurisdiction on the basis that this state is a more appropriate forum, and:

(a) The child and the child’s parents, or the child and at least one parent (or person acting as a parent) have a significant connection with the state, other than physical presence.

(b) Substantial evidence is available in this state concerning the child’s care, protection, training and personal relationships.

(3) All courts having jurisdiction have declined to exercise same on the basis that this state is the more appropriate forum.

(4) No Court of any other State would have jurisdiction under the criteria set forth in (1), (2), or (3).

Exclusive, Continuing Jurisdiction

The other major revision to the UCCJEA was the addition of “exclusive, continuing jurisdiction”. Pursuant to section 202, the continuing jurisdiction of the original decree state (i.e. the state that made an initial custody determination) is exclusive, and will continue until one of two events occur:

(1) If a parent or person acting as the child’s parent remains in the original decree state, continuing jurisdiction is lost when neither the child, the child and a parent, nor the child and a person acting as a parent continue to have a significant connection with the original decree state and there is no longer substantial evidence concerning the child’s care, protection, training and personal relationships in that State.

(2) When the child, the child’s parents and any person acting as a parent no longer reside in the original decree state.

This means that, even if the child has acquired a new “home state”, the original decree state retains exclusive, continuing jurisdiction, so long as the “significant connection” requirement of Section 201 (See 201(2)((a) and (b)) is met. However, if the original decree state determines that the relationship between the child and the person remaining in the original decree state has diminished, thus precluding a finding of significant connections and substantial evidence, jurisdiction in the original decree state would no longer exist.

Additionally, when the child, the parents, and all persons acting as parents physically leave the original decree state and live elsewhere, exclusive continuing jurisdiction ceases. In this event, either the original decree state or the new state may decide whether the original decree state has lost jurisdiction.

Jurisdiction to Modify Initial Determination

But what happens where an original decree state finds that it no longer has exclusive, continuing jurisdiction over a matter? How does it relinquish jurisdiction to a new “home state”?

Pursuant to Section 203, a new state may not modify a child custody determination made by the court of another state unless the new state has “home state jurisdiction” under Section 201 and

(1) the original decree state determines that it no longer has exclusive, continuing jurisdiction, or the original decree state determines that the new state would be a more convenient forum (See Section 207); or

(2) a court of the original decree state or a court of the new state determines that the child, the child’s parents and any person acting as a parent do not presently reside in the original decree state.

Thus, a new state is prohibited from modifying a custody determination made by an original decree state unless the original decree state has determined that it no longer has exclusive, continuing jurisdiction or the new state has decided is it a more convenient. The new state is not authorized to determine whether the original decree state has lost its jurisdiction; only the original decree state can make that determination. The only exception to this is when the new state finds that the child, the child’s parents and any person acting as a parent no longer reside in the original decree state.

It is clear from section 203 that when an interstate child custody issues arises, the original decree state and the new state must communicate and cooperate to determine the proper jurisdiction of a matter; but how often does this occur?

 

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Application of the UCCJEA in New Jersey

While the new revisions and clarifications made to the UCCJEA were supposed to make it easier for courts to determine who could hear interstate child custody matters, as discussed in the recent unpublished (not precedential) decision of C.G. v. A.D. it is clear that the courts are still struggling over jurisdictional issues.

In the aforementioned case, the mother A.D., lived with the parties’ daughter in Delaware for 5 years, until the child temporarily moved to New Jersey to live with her father, C.G., due to A.G.’s medical condition.

Shortly thereafter the mother filed a petition in Delaware for custody of the parties’ daughter. In September 2012, the Delaware judge entered an order awarding the mother sole custody after determining that Delaware was the child’s “home state” pursuant to the UCCJEA, finding that since the mother filed the petition less than six months after the child left Delaware and went to New Jersey, Delaware retained jurisdiction.

The mother then filed a motion in New Jersey, requesting that the court to enforce the custody order entered by the Delaware court.

In June 2014, a New Jersey judge, after conducting oral argument, denied the mother’s application without making any findings of fact as to the child’s residency leading up to the mother’s petition for custody in Delaware and without communicating with the Delaware court regarding the original order. Additionally, despite failing to follow the procedural requisites of the UCCJEA, the New Jersey Judge entered an order requiring the mother to attend therapeutic intervention to aid her parenting time with her daughter.

Thereafter, the mother then returned to the Delaware court seeking again, an order of custody of the parties’ daughter. The Delaware court affirmed its original September 2012 custody order asserting, among other things, that Delaware had jurisdiction to enter the initial order due to the fact that Delaware was the “home state” of the child at the time the mother filed the application.

The mother then appealed the June 2014 New Jersey order, challenging the intervention of the New Jersey court in light of the original Delaware custody order entered in September 2012.

The Appellate Division made it clear that the dispute at bar was subject to UCCJEA and that an initial custody order was properly issued in Delaware. Thus, the subsequent order entered in New Jersey was a “modification proceeding” and in order to modify the initial order, New Jersey was required to make a two-tiered finding as to whether (1) New Jersey was the child’s “home state” and (2) if it was not, whether Delaware was.

If the New Jersey court concluded that New Jersey had “home state” jurisdiction, the next step would be to determine whether custody proceedings had been commenced in another state. If so, New Jersey must stay its proceedings and communicate with the other court to seek an agreement as to whether New Jersey is a more convenient forum or Delaware retained jurisdiction.

If New Jersey concluded that Delaware remained as the child’s “home state”, then all proceedings should have been deferred to Delaware.

Unfortunately, in this matter, the New Jersey court did not follow the proper procedure under the UCCJEA, despite being presented with an existing custody order from Delaware, and the subsequently entered June 2014 order requiring the mother to attend therapeutic intervention to aid her parenting time with her daughter was reversed and remanded.

Parting Words

When it comes to the interstate child, the first order of business before filing a custody or parenting time application, it to determine the proper jurisdiction for doing so. In a matter where two (or sometimes more) courts must communicate, it may be prudent to file an application in all possible jurisdictions, requesting that the possible courts communicate with one another to determine the appropriate forum. This step will (presumably) avoid the inconsistencies that arise when multiple orders are rendered by multiple jurisdictions. Taking this simple step before filing an application may also avoid extensive litigation to correct jurisdictional errors, which could elongate matters and drive up fees unnecessarily.

In the recently published 67-page trial court decision of D.G. and S.H. v. K.S., the trial court dealt with the novel issue of custody and parenting time in a “tri-parenting” relationship. 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. During K.S.’s pregnancy, the parties had two baby showers, one at D.G. and S.H.’s Manhattan apartment, and one at K.S.’s home in Point Pleasant, New Jersey. All three parties attended parenting classes and began preparing both of their homes for the child’s arrival, purchasing everything in duplicate.

After the child, O.S.H., was born in 2009, D.G. and S.H. moved into K.S’s home in Point Pleasant and all three parties co-parented the child. D.G. operated a business at the Jersey Shore and, shortly after giving birth, K.S. returned to her job at her family’s restaurant. S.H., a high-school teacher, undertook the significant portion of the parenting responsibilities as he was on summer recess.

At the end of the summer, D.G. and S.H. rented a home in Point Pleasant to be near K.S. Thereafter, parenting time fluctuated, but was successful. In the summers, D.G. and S.H. undertook the significant portion of parenting time responsibilities due to K.S’s job responsibilities, and in the winters, K.S. undertook the significant portion of parenting time responsibilities, including taking the child to Costa Rica, where she owned a home, for varying amounts of time. In 2012, Superstorm Sandy destroyed D.G. and S.H.’s rental home, so they began enjoying weekend parenting time in New York City.

The parties were able to effectively and efficiently co-parent with one another for most of the child’s early life; however, things broke down when K.S. announced that she had fallen in love with her neighbor in Costa Rica, A.A., who she intended to marry, and that she wanted to relocate with the child to California where A.A. resided. A.A. could not relocate to New Jersey due to parenting obligations to children he had from a prior marriage.

D.G. and S.H. requested that K.S. prepare parenting time proposal for them so they could determine if the relocation would work together with their idea of “tri-parenting”. K.S. prepared a parenting time proposal and after considerable discussion, D.G. and S.H. rejected it. D.G. and S.H. then filed a Complaint seeking to establish 1.) legal and physical custody of O.S.H.; 2.) parenting time; and 3.) that S.H. was the child’s psychological and legal parent. K.S. filed a counterclaim and answer seeking 1.) to establish a legal custodial relationship between the parties, with physical custody vested in K.S.; 2.) to establish a parenting time arrangement; 3.) child support and medical coverage; and 4.) permission to relocate with the child to California.

A plenary hearing was scheduled and took place over 19 days.paper dolls

Psychological Parentage of S.H.

S.H. sought an order declaring him to be the psychological parent of the O.S.H., which was supported by D.G. K.S. stipulated that S.H. was the child’s psychological parent on the eve of trial and the court found that the undisputed facts of this matter supported such a conclusion.

In order for a person to be considered a child’s psychological parent, there must be a finding of “exceptional circumstances” (See V.C. v. M.J.B., 163 N.J. 200, 219 cert. denied. 531 U.S. 926, (2000)). To find that “exceptional circumstances” exists, the Court must find the existence of four elements:

(1) that the biological or adoptive parent consent to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; the legal parent must have fostered the formation of the parental relationship between the third party and the child;

(2) that the petitioner and the child lived together in the same household’

(3) that the petitioner assumed the obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing toward the child’s support without expectation of financial compensation [a petitioner’s contribution to a child’s support need not be monetary]; and

(4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature. (See V.C. v. M.J.B. at 223).

The court detailed at great length, all of the actions undertaken by S.H. and concluded that he is appropriately the child’s psychological parent. Among some of the court’s considerations were the fact that D.G. and K.S. consented to and fostered a parent-like relationship between S.H. and the child,  the idea that all three of the parties would be the child’s parents was formed before the child was even conceived or born, the parties chose to give the child S.H.’s surname, and since the child was born, and over the course of the past six years, S.H. contributed towards the child’s support, both monetarily and otherwise, and established a bond with the child.

Residential and Legal Custody

Once the court has established the existence of a psychological parent, the best interest of the child must be considered when determining custody. The court found that since there was never a written agreement or prior court order regarding custody, the court must determine the custodial relationship that serves the best interests of the child, and evaluate the factors set forth in N.J.S.A. 9:2-4(c). Both Plaintiffs and Defendant hired custody experts, who evaluated each of the parties and the child. The court conducted a detailed, lengthy analysis of the factors set forth in N.J.S.A. 9:2-4(c), and upon doing so, ultimately 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. Although rare, joint residential custody is a suitable alternative to sole custody in family law actions, when “joint custody is likely to foster the best interests of the child in the proper case.” See Beck v. Beck, 86 N.J. 480, 488 (1981). The analysis of the factors set forth in N.J.S.A. 9:2-4(c) is quite expansive and delves deep into the loving and caring relationship the parties share with the child.

Relocation and Removal Application by Defendant

The Court reviewed K.S.’s application to relocate with the child to California under the O’Connor standard for relocation, which applies in this situation as the Court determined that all of the parties shall share joint legal and residential custody. “If, the parents truly share both legal and physical custody, an application by one parent to relocate and remove the residence of the child to an out-of-state location must be analyzed as an application for a change of custody, where the partying seeking the change in the joint custodial relationship must demonstrate that the best interests of the child would be better served by residential custody being primarily vested with the relocating parent. O’Connor v. O’Connor, 349 N.J. Super. 381, 385 (App. Div. 2002).

The court opined that K.S.’s reasons for the move to California are at best tentative and speculative, including a major change in her living situation with A.A. (originally K.S. was going to live with A.A. and now is not), her employment and educational plans (K.S. intends to find part-time work and go to school part-time), her availability to care for the child and her lack of family support to help with the child’s care, among other things. Additionally, the child would be uprooted from her long and stable living arrangement with the parties and the distance between California and New Jersey would diminish the child’s ability to maintain her bond with D.G. and S.H., exclude them from her daily life activities and abrogate frequent parenting time. Thus, the court denied K.S.’s application to relocate with the child to California.

Legal Parentage

S.H. also sought to be established as the legal parent of O.S.H., not just the psychological parent. However, this was denied 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).

While the court was sympathetic to S.H.’s request to establish legal parentage, same is not supported by statute or case law. Since such a determination would likely have far-reaching implications, the court determined that this issue is best addressed by other branches of government, specifically the Legislature.

In a world where the nuclear family has evolved into many different shapes and sizes, the law (and the courts) quite simply cannot keep up. 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.

After the US Supreme Court decided Troxel v. Granville in 2000, invalidating Washington’s “breathtakingly broad” grandparent and third party visitation statute, there was an onslaught of litigation, nationwide, seeking to invalidate grandparent visitation statutes in each state.  Ultimately, in 2003 in the case of Moriarty v. Bradt (a case I was involved with), the New Jersey Supreme Court addressed this issue for the first time, post-Troxel, and held that because a judicial order compelling grandparent visitation infringes on parents’ fundamental right to raise their children as they see fit, the statute could only survive a constitutional challenge if a “threshold harm standard” augmented the “best interests of the child” factors set forth in the statute. What followed was litigation about what constituted harm, how it could be plead, etc.

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Thereafter, changes in court procedure began to create an obstacle to these cases meeting the initial threshold.  Because grandparent visitation cases are often treated as “non-dissolution” or “FD” cases, a streamlined, form pleading process was created by the court to use in FD cases.  The typical complaint which would lay out the facts was now not permitted.  Once it was determined that those attorney prepared pleadings could then be affixed to the form, the next issue that then arose was whether there was an entitlement to an expert and other discovery, since FD cases are deemed summary proceedings where discovery is not automatic.  While the Appellate Division seemed to resolve this in 2014 in R.K. v. D.L. which provided for a differentiated case management for complex FD cases, the Supreme Court had not yet weighed in on the topic.

Today, the Supreme Court has finally resolved this issue in grandparent visitation cases in the case of Major v. Maguire reaffirming the need for differentiated case management for complex grandparent visitation cases.  In this case, similar to the Moriarty case, one of the parents died and the remaining parent cut off the other grandparent’s access to the children leading to the litigation.  The trial court initially dismissed the Complaint because the grandparents could not prove harm.  The Appellate Division disagreed and reversed and remanded the matter to trial court with directions to re-examine the complaint under R.K..

The Supreme Court affirmed the Appellate Division, holding:

 We reaffirm the holding of Moriarty that, in order to overcome the presumption of parental autonomy in the raising of children, grandparents who bring visitation actions under N.J.S.A. 9:2-7.1 must prove by a preponderance of the evidence that denial of visitation will harm the child. This case, however, arises not from a court’s findings on a full record, but the grant of a motion to dismiss under Rule 4:6-2(e) at the pleading stage, in which plaintiffs must be afforded every reasonable inference of fact. Here, plaintiffs alleged in detail their involvement in their granddaughter’s life prior to the death of their son and contended on that basis that their alienation from the child caused her harm. The trial court should have denied defendant’s motion to dismiss and given plaintiffs the opportunity to satisfy their burden to prove harm.

Though the decision is 36 pages long, the following paragraphs encapsulate what you really need to know:

First, as applied to a complex grandparent visitation case, the Appellate Division’s case management recommendations in R.K., …, enhance the constitutional standard articulated in Moriarty. We concur with the panel in R.K. that in some grandparent visitation actions, the limitations imposed in summary actions may deprive a litigant of an opportunity to meet his or her burden under the statute and case law. … We recognize, however, that the case management procedures envisioned by R.K. also impose burdens on the privacy and resources of a family, and that they are neither necessary nor appropriate in every case.

We consider the approach reflected in Rule 5:5-7(c) to strike the appropriate balance. That Rule requires the trial court to hold initial and final case management conferences, and to enter an order addressing the full list of issues set forth in R.K., only in grandparent visitation cases that warrant assignment to the complex track. … Visitation applications that are not “complex” may be handled as summary actions, with or without case management and discovery as authorized by Rule 5:4-4(a). … Thus, when a trial court determines the need for complex case management in a particular case, the Appellate Division’s case management recommendations in R.K. provide a practical template for courts and parties.

Second, when a party seeks to have the matter designated as “complex,” the plaintiff should ordinarily file a non-conforming complaint, as permitted by Rule 5:4-2(i), to supplement the form pleading required by Directive 08-11. With no constraints on the length of their pleadings, many plaintiffs will be in a position to present a prima facie showing of harm in that complaint without the need for intrusive discovery. For example, in a case such as this one, the grandparent would be able to plead a showing of harm; he or she may allege his or her contacts with and care for a grandchild when the parent was alive, the timing and circumstances of the parent’s death, any changes in family relationships that followed, the nature of the claimed harm, and other pertinent considerations. … Relevant facts within a grandparent’s knowledge should be presented with precision and detail. Similarly, a parent opposing visitation should use his or her responsive pleading to identify issues on which the parties agree and counter the grandparents’ factual allegations on disputed issues…. Informed by the pleadings, the trial court can make a considered judgment about the complexity of the matter, the need for fact or expert discovery, and the issues to be resolved.

Third, in the event that fact discovery is required, the court and the parties should work together to coordinate and streamline the process. … Whether the case is designated as complex or handled as a summary action, Family Part judges have broad discretion to permit, deny, or limit discovery in accordance with the circumstances of the individual case. …Under the court’s supervision, the parties should address only the issues in dispute: whether the grandparents have met their burden to demonstrate harm to the child in the absence of visitation, and, if so, what visitation schedule will serve the best interests of the child, applying the factors identified in N.J.S.A. 9:2-7.1. …

Any discovery should be carefully circumscribed to prevent or minimize intrusion on the privacy of the child and his or her family. … It is the rare case that will require the trial court to embark on a comprehensive inquiry into family history or probe the relationships of warring adults. The court, counsel and parties should be aware that no matter how difficult the circumstances may be, the litigants’ interests are not the primary concern. Instead, the court’s focus, and that of the parties, must be the welfare of the child.

Fourth, as the Court noted in Moriarty, supra, expert testimony may be necessary for grandparents to meet their burden under N.J.S.A. 9:2-7.1. … Particularly in settings in which one of the child’s parents is deceased, and the other parent has barred or sharply limited the grandparents from contact with the child, parties seeking visitation may not have access to current information about the child’s status. In determining whether expert testimony is appropriate, trial courts should be sensitive to the impact of expert involvement on family resources, protective of the privacy of the child, and mindful of an expert’s potential value to the court and parties in suggesting a resolution of the dispute.

Fifth, even when it has afforded grandparents the opportunity to conduct fact or expert discovery, the trial court should not hesitate to dismiss an action without conducting a full trial if the grandparents cannot sustain their burden to make the required showing of harm. To that end, a court may dismiss summary actions pursuant to Rule 4:67-5, and decide complex visitation cases by summary judgment under Rule 4:46-2(c). Consistent with the due process autonomy interests recognized in Troxel, and Moriarty, a trial court should not prolong litigation that is clearly meritless.  (Emphasis added); (internal citations omitted and otherwise edited for space).

The takeaway is that, after a dozen years, there now seems to be more of a clear roadmap for the courts and litigants as to how to handle these cases if they are to be litigated.  That said, the Court interestingly noted that litigation may not be the answer, when it held:

Finally, trial courts should encourage parties to mediate or arbitrate grandparent visitation actions in accordance with New Jersey’s strong policy in favor of alternative dispute resolution. In a meritorious case, a seasoned mediator or arbitrator with experience in visitation and custody issues may devise a solution for the parties’ conflict promptly and inexpensively, to the benefit of the child and the parties.

Query, should or will a parent be forced to mediate a non-meritorious case because a trial court seeks to punt the above procedures down the road? If so, would that, in an of itself violate the constitutional protections that Moriarty and Major seek to impose.  The future of grandparent visitation cases will remain interesting, I’m sure.

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

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Family law and estate law are undoubtedly two very personal areas of the law that often cross-over with one another depending on the issues at hand.  In the Matter of the Estate of Michael D. Fisher, II presents us with one of the more tragic factual scenarios where the two worlds intertwine.

kids

These are the facts that you need to know:

  • The parties were married in 1994 and had one child, who was born in 1995.
  • The parties separated in 2001 and mom procured a final restraining order against dad after he tried to move child from school without first telling her.    Dad, under the terms of the FRO, was permitted supervised parenting time with child at dad’s psychologist’s office, and dad was to undergo a risk assessment and “receive professional domestic violence counseling.”
  • Dad neither attended all supervised time with his son or undergo either the risk assessment or counseling.
  • In November 2001, dad filed a motion for unsupervised parenting time.  Mom cross-moved for all time to be supervised until dad completed anger management and the risk assessment.
  • In January 2002, the court temporarily suspended dad’s parenting time pending his enrollment of the above-referenced anger management and assessment.
  • In March 2002, the court entered a final judgment of divorce, incorporating the terms of the parties’ settlement agreement.  Mom procured sole custody of the child, and dad’s parenting time remained suspended until he complied with the terms of the January 2002 Order.
  • During the divorce proceeding, mom presented dad with an offer that, if dad agreed to give up his rights to the child, she would not seek child support.  Dad rejected the offer “out of hand”.
  • Dad did not appear for the scheduled risk assessment.  As a result, the parenting time suspension continued.
  • From January 2002 until the child’s death in September 2010, dad “never had any legal visitation with his son” and had some phone conversations with him in 2001 and 2002.  He occasionally saw him in public places.
  • Through subsequent litigation, dad, who had moved to Florida and became ill, procured a termination of his child support obligation.  He was obligated to pay substantial arrears that had accrued, but had otherwise paid support throughout the child’s life.  He even continued to pay a portion of the support when he was in poor health.  Interestingly, the trial court was critical of dad because he paid support through a wage garnishment even though this was specifically agreed to in the parties’ settlement agreement.
  • Dad learned of the child’s death from a relative and returned to New Jersey to attend the funeral.  The child died intestate and, with dad’s consent, mom was appointed as administratrix and administratrix ad prosequendum (named where a wrongful death suit is to be filed) of the child estate.

Since the child had no spouse or children of his own, the parents were to share equally in his intestate estate under N.J.S.A. 3B:5-4(b).  However, another law that became effective only a year prior to the child’s death, N.J.S.A. 3B:5-14.1, provides:

1.  A parent of a decedent shall lose all right to intestate succession in any part of the decedent’s estate . . . if:

(1) The parent refused to acknowledge the decedent or abandoned the decedent when the decedent was a minor by willfully forsaking the decedent, failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection, or failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death . . . .

As expected, mom filed a complaint to bar dad from receiving a share of the child’s estate under the newly passed law, alleging that dad abandoned the child after the divorce by failing to have any contact with him or pay his full child support obligation.  Dad denied that he abandoned the child.

The trial court granted mom’s application despite concluding, “[a]dmittedly, it may not have been [dad’s] specific intent or purpose to abandon his son.”  In so doing, the court found dad’s acts were “unequivocally intentional rather than accidental or involuntary” because it was his choice not to attend supervised parenting time or anger management counseling, as well as not pay child support.

On appeal, the court determined that whether dad “abandoned” the child turned upon an interpretation of the new statute, which provides:

b.  A parent of a decedent shall lose all right to intestate succession in any part of the decedent’s estate . . . if:

(1) The parent refused to acknowledge the decedent or abandoned the decedent when the decedent was a minor by willfully forsaking the decedent, failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection, or failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death . . . .

Analyzing the language, the Appellate Division found that a parent may lose his or her right to intestate succession if the parent abandoned the decedent when he or she was a minor by taking any one of the following three specific steps:

  1. willfully forsaking the decedent;
  2. failing to care for and keep the control and custody of the decedent so that the decedent was exposed to physical or moral risk without proper and sufficient protection; OR
  3. failing to care for and keep the control and custody of the decedent so that the decedent was in the care, custody and control of the State at the time of death.

In so finding, the Appellate Division noted that death or serious harm to the child need not occur for the statutory definition of “abandonment” to be fulfilled and that the law was not supposed to be so limiting in its application.

The Court also engaged in a statutory interpretation of the phrase “willfully forsaking”, noting that it was inappropriate for the trial court to utilize a dictionary definition of “willfully” when many prior cases had interpreted the phrase under a similar statute.  After engaging in its analysis, the Appellate Court determined:

After carefully reviewing these precedents and distilling them to their essence, we hold that, in order for a court to conclude that a parent has “abandoned” his or her child “by willfully forsaking” him or her under N.J.S.A. 3B:5-14.1(b)(1), the court must find that the parent, through his or her unambiguous and intentional conduct, has clearly manifested a settled purpose to permanently forego all parental duties and relinquish all parental claims to the child.

The burden of proof to be applied?  A “preponderance of the evidence”, rather than the more strict “clear and convincing evidence” because the issue merely involved whether a parent may share in a child’s financial estate, rather than the actual “best interests” of the child.  This despite will contests often involving the stricter standard.

Following its legal analysis, the Appellate Court found that dad did not “abandon” his son by “willfully forsaking” him even though he did not take actions necessary to enable him to have parenting time with the child after the FRO was procured by mom.  Ultimately, dad did not manifest a settled purpose to “permanently forego all parental duties and relinquish all parental claims to the child.”  Dad took repeated steps to restore his relationship with the child, would not agree to mom’s offer to terminate his parental rights in exchange for no child support, and paid child support throughout the child’s life (the Court noted that simply filing a motion to terminate child support is not evidence of a “settled purpose” to “permanently forego all parental duties and claims to his child” – in fact, dad did not oppose mom’s motion to reinstate child support if dad could procure Social Security Disability benefits.)

As a result, the Court concluded that the exception to intestate succession that mom sought to apply here was not appropriate and dad was entitled to share in the child’s estate.

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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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