Hot off the press!  A published (precedent setting) trial court decision, E.S. v. C.D. confirms that live-in childcare providers qualify as household members under the Prevention of Domestic Violence Act (“PDVA”).  What does this mean?  A restraining order can be entered against an employee who has lived with their employer even though the parties do not have a familial relationship, the economic relationship has ended, and the employee may not have an expectation of continuing contact or relationship with the employer once the financial relationship ends.  To put it simply:

“That a person receives a monetary benefit from engaging in a relationship does not automatically disqualify that person from seeking relief under the PDVA… Analogously, that a victim had provided an economic benefit to a defendant should not automatically disqualify the victim from seeking relief under the PDVA.”

In E.S. v. C.D., the trial court held that the plaintiff/mother was entitled to a restraining order against the defendant/nanny who she previously employed.  The parties had a financial relationship for approximately seven months during which the defendant resided in the plaintiff’s home.  During that period, the defendant assaulted the plaintiff’s child.  It also turned out that the defendant applied for the nanny position under an alias.  Needless to say, the defendant was fired.  For two months after being fired, the defendant repeatedly called and texted the plaintiff.  The defendant also threatened to lie to the child’s father in order to cause the plaintiff to lose custody.  Thus, the defendant allegedly committed the predicate acts of  harassment, cyberharassment and terroristic threats.  Importantly, nothing happened between the firing and the timing of the restraining order that would have caused this heightened contact on part of defendant.

Even though the above actions sound egregious on their face, the plaintiff may not  have automatically been entitled to a restraining order.  The court first had to determine whether the defendant qualified as a household member under the PDVA.   In doing so, the court reviewed the household member factors listed in a prior Appellate Division decision of Coleman v. Romano, which are:

  1. The nature and duration of the prior relationship;
  2. whether the past domestic violence relationship provided a special opportunity for abuse and controlling behavior;
  3. the passage of time since the end of the relationship;
  4. the extent and nature of any intervening contacts;
  5. the nature of the precipitating incident; and
  6. the likelihood of ongoing contact or relationship

The court found that the defendant resided with plaintiff for seven months and had insight into the child and plaintiff’s nature, making them vulnerable to attacks by the nanny.  The court also noted that “the likelihood of contact has been heightened over the twelve years since the Coleman decision, in light of the use and popularity of cell phones, texting and social media.”  In addition to Coleman, the court turned to S.Z. v. M.C., which we have blogged about, noting that a plaintiff was entitled to a restraining order against a bookkeeper who resided in the home.

Ultimately, the court found:

“Victims of domestic violence come from all social and economic backgrounds. It was the intent of the legislature that victims of domestic violence are afforded the maximum protection from abuse the law can provide. N.J.S.A. 2C:25-18. Notwithstanding the economic relationship of the parties, plaintiff and defendant are former household members. As such, plaintiff is a protected party under the PDVA.”

While this analysis may seem simple, especially in light of the defendant’s actions, the decision leaves us with food for thought.  The court specifically stated that the defendant may not have had an expectation of “ongoing contact or relationship” following her termination by the plaintiff, but noted that the defendant (nanny) was not the victim.  This begs the question of whether the defendant would have been entitled to a restraining order against plaintiff if it was the plaintiff who allegedly committed predicate acts after they stopped residing together (in the plaintiff’s home) and the financial relationship ended.

That question is for another day.  For now, the takeaway is the expansion of the “household member” definition that was previously expanded in Coleman, and which provides victims of abuse with broad protections.

Lindsay 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

Lindsay A. Heller, Associate, Fox Rothschild LLP

One of the more complex issues we see when addressing alimony and equitable distribution relates to inherited assets and the money (distributions, investment experience, interest, etc.) that emanates from them.  Under New Jersey law, inherited assets remain the exempt, separate property of the spouse who inherited same.  It cannot be distributed in whole or in part to the other spouse in the event of a divorce.  See N.J.S.A. 2A:34-23(h).

However, there is an exception to every rule.  If an asset is commingled with a marital asset, then it loses its exempt character.  For example, if Husband received $100,000 from an inheritance and he deposited into the joint bank account he shares with his Wife, then that inherited money is no longer exempt because it was commingled with a marital asset.  Depending on how much time has passed since the inherited money was deposited, and based on other factors, there may be an argument that the account itself should not be split 50/50 based on the deposit of the inherited money.  But by commingling the funds, the Husband has lost the clear-cut argument that the inheritance is not to be shared by his Wife.

Importantly, even if an inherited asset is immune from equitable distribution, this does not mean it is unavailable for support purposes.  A court could consider the existence of the separate, exempt asset, and the income generated therefrom , for purposes of determining appropriate support.

The recent unpublished (non-precedential) decision of Rosen v. Rosen provides a straightforward example of this issue in practice.  In Rosen, the Husband received a significant inheritance during the marriage, in the form of a Trust.  He received this inheritance together with his brothers, and eventually they converted the Trust into an entity they called “Leonard Rosen Family, LLC.”  During the marriage, the Husband took distributions from the entity, which he would at times deposit into accounts he shared with the Wife, or use for expenses he shared with his Wife.  However, the Wife herself held no ownership interest in Leonard Rosen Family, LLC.  This is the critical fact.  While the Husband commingled certain funds generated from the entity, the Wife never obtained an ownership interest and it remained his separate property, or so he believed.  The trial judge did not agree with the Husband, and awarded the Wife an interest in the distributions the Husband would take from the entity in the future, as and for her equitable distribution of this asset.

However, the Husband ultimately and correctly prevailed.  The Appellate Division reversed the trial judge’s ruling and agreed with the Husband that because his ownership interest in the entity was derived from an inheritance, his interest in that entity and in any income generated from it was not subject to equitable distribution.  In reaching its decision, the Appellate Division relied upon one of the seminal New Jersey Equitable Distribution cases, Painter v. Painter, which held that:

[T]he income or other usufruct derived from [exempt] property, as well as any asset for which the original property may be exchanged or into which it, or the proceeds of its sale, may be traceable shall similarly be considered the separate property of the particular spouse.

Painter v. Painter, 65 N.J. 196, 214 (1974).

The Appellate Division (and the Husband himself) did acknowledge that certain income generated from the exempt property had been commingled, and that there were – to put it simply – “no backsies.”  The money that the Husband had placed in joint bank accounts that had emanated from the exempt entity could not be recalled by the Husband, nor did he ask for it to be.

Finally, the Appellate Division acknowledged the prior case law (Miller v. Miller, 160 N.J. 408 (1999) and Aronson v. Aronson, 245 N.J. Super. 354 (App. Div. 1991)), which held that income from separate property can be considered in determining an alimony award.  However, the Court did not delve into this analysis in any greater detail, as the Wife did not seek alimony in this particular case.  One interesting issue that could conceivably arise related to alimony relates to the marital lifestyle.  If you have a case where the recipient of alimony claims that (s)he cannot meet the marital standard of living, but subsequently the payor receives an inheritance, there could be a sufficient change of circumstances that enables the recipient to seek more support to allow him/her to live closer to the marital lifestyle.  After all, the other spouse now has the ability to do so as a result of inheritance.

All of the above are important factors to consider when you or your client is lucky enough to have benefited from an inheritance or a trust during the marriage, or after.

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

We recently received a favorable appellate decision on behalf of our client whose ex-husband tried to manipulate their divorce agreement regarding distribution of his New Jersey PERS pension (“pension”) nearly three decades after the agreement was signed.  We did not represent her at the time of the divorce, but did represent her to defend against this frivolous post-judgment litigation.

The unpublished decision of Tapanes v. Perez is an important reminder to have your Qualified Domestic Relations Orders (“QDRO” – the Order that enables spouses to distribute retirement plans without tax or penalty) prepared and finalized simultaneously with the divorce decree.  QDROs are often the last task performed because you must have a signed agreement or Judgment containing the terms of distribution before the QDRO can be prepared and then implemented.  In this case, letting the QDRO enabled the former husband to collect the former wife’s share of the pension for nearly eight years between his retirement in 2010 and her receipt of benefits in 2018 because the QDRO was not entered and he did not alert the State of her rights when he retired.  Had the QDRO been entered, even decades earlier, it would have been on record.  Even worse, after depriving his former wife of the benefit of her bargain for years, he brought litigation seeking to rewrite the agreement in order to avoid paying the arrears the accrued during that period.  Time finally caught up to him…

The simple facts are as follows.  The parties entered into a divorce agreement in 1993 that provided for equitable distribution of the marital portion of the pension.  The agreement noted that a lump sum payment would be made in limited circumstances, such as his death and/or separation from the plan, which did not occur.  The agreement also noted a pension valuation that the parties never obtained.  The parties did not procure a Qualified Domestic Relations Order (“QDRO”) to distribute the marital portion of the pension following their divorce.

The former husband retired in 2010 and began collecting his benefits.  He did not alert the State of New Jersey that his former wife was entitled to a share of his benefits.  By the time the wife began collecting her share of the benefits in 2017, over $70,000 of arrears had accrued.

In the fall of 2017, the former wife contacted her former husband (he now resides in Florida) to have the appropriate QDRO prepared.  He ignored her.  She hired All Pro QDRO to prepare the draft QDRO and it was sent to both parties for review.  He ignored it.  After her attempts to resolve the issue without the need for litigation, the former wife filed a motion in the trial court seeking to have the QDRO implemented.  He ignored the motion.  Notwithstanding, the trial court gave him more time to sign the QDRO in the initial Order entered in November 2017.  Surprise, he ignored it.  Thus, the trial court entered the QDRO without his signature.

After the Orders were entered, the former husband had two New Jersey attorneys write to the former wife indicating his consent to the form of QDRO but seeking (a) valuation for a lump sum payment that was not applicable and (b) to offset the arrears that accrued because he had wrongfully collected her share of the benefits.

In early 2018, when the former wife finally began receiving her share of the pension, he filed a motion in the trial court to have the QDRO vacated, putting forth arguments that failed for procedural, factual and legal reasons.  Notably, he never appealed or even sought reconsideration of the November Orders even though he was properly served with the underlying motion and the Orders themselves, as well as had two attorneys contact his former wife about the QDRO after it was entered.  Additionally, the language of the parties’ divorce agreement did not permit a lump sum payment except under limited circumstances that did not occur here.  Moreover, while the former husband claimed Anti-Marx language should be read into the agreement, but it simply didn’t exist and Marx (or the coverture fraction) is the appropriate way to distribute the pension.   Even though he filed a Motion under Rule 4:50-1 (that permits vacating  judgments in certain circumstances), the former husband did not meet the standard to have the Orders vacated. Put another way, he did not advance a legal or factual position to have the QDRO vacated. The former husband’s trial court motion was denied in April 2018.

Refusing to just stop there, the former husband then filed an appeal.  In its decision, the Appellate Division stated:

The QDRO fulfilled the terms of the parties’ settlement agreement, whose plain language required an equitable distribution of the value of the marital portion of the pension. The Marx marital coverture formula effectuates a division of the value of a pension. Panetta v. Panetta, 370 N.J. Super. 486, 494- 95 (App. Div. 2004). The settlement agreement did not eschew a Marx formula.

Moreover, other than a self-serving certification authored by his former divorce attorney, defendant provided the motion judge no objective evidence, valuation, or rationale to support his argument why plaintiff should only receive $3,903.21 as her share of equitable distribution from the asset. The settlement agreement’s mention of a lump sum distribution pertained only to defendant in the event he died or separated from the plan. Therefore, notwithstanding defendant’s failure to object to the entry of the QDRO, the record does not support his tortured interpretation of the settlement agreement regarding the pension division.

Our client spent over a year in litigation on this issue that her husband created.  During that time, she was fearful of spending the pension benefits that her former spouse wrongfully deprived her of for approximately eight years.   After defeating her former spouse in the trial court and Appellate Division, she is finally getting the retirement benefits she bargained for over 25 years ago!

Lindsay 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

Lindsay A. Heller, Associate, Fox Rothschild LLP

In one of the earliest posts I did on this blog going back ten years or more, I posited that you can only really settle when the time is right and when both parties are ready.  In fact, I felt then as I feel now, that you can make your best offer, if not an offer that is the other side’s best offer, on day one, and if the other side isn’t ready to settle, the case wont settle.  Worse yet, in those cases, the party rejecting the settlement offer then believes that the offer is just the other side’s starting position – rather than perhaps an overly generous offer meant to get a case over quickly to avoid both the fees and emotional trauma that can be endured during a divorce case.  As a noted then, some times a litigant is just not emotionally prepared for the case to be over and/or be divorced.  I have had several cases of late where one party wanted the divorce and the other wanted to stay married (notwithstanding how horrifically their spouse treated them and/or the kids).  In those cases, if a party is not ready to resolve the case, you need to have patience and at the same time methodically do what is necessary to ultimately settle or try the case, as the case may be.

Sometimes, however, it is the lawyers, not the litigants, that impede settlement.  I recently had a lawyer tell me that she hated to settle cases – not because there was a desire to run up fees – but rather, because she was so fixed in the correctness of her positions, that she would rather have judge decide she was wrong after a trial, then compromise (and I presume in her mind, sell out her client.)  Quite frankly, had I not had several other cases with that lawyer over the years, including a long and ridiculous trial, I would have been shocked though I guess it was still a little surprising to hear out loud what I had surmised all along.  There are other lawyers who, seeing dollar signs when there is money there to pay fees, will either fan the flames and create needless issues, or worse yet, let clients that don’t know better, have them do work, or right letters, or engage unnecessary experts instead of giving the proper advice to avoid unnecessary fees.  There are lawyers that are proud that they try every case – this can’t be good for the client.  There are lawyers who don’t let cases settle until you have prepared for trial and the trial is about to begin.  There are lawyers who take bad positions, way too long, only to sell their clients out on the eve of trial.  I have had complex matters where opposing counsel would not let their forensic accountants concede obvious, objective errors (e.g. they looked at the wrong document/used the wrong number) or even massive math errors.

But what to you do when it is the lawyer, not the litigant, that is the impediment to resolution.   On thing you can do is to try to get a judge to actively case manage the case, get to know the file and weigh in on the issues.  Some judges will do that, many won’t, not because they don’t want matters to resolve, but because there isn’t enough time in the day. Sometimes you can file a strategic motion which may not necessarily provide the desired relief at that moment, but can put the case on the right path.  You can also try to get the case to mediation with a retired judge or respected mediator.   This is often the first setting where a litigant gets an objective, unvarnished assessment of their case (and perhaps finds out for the first time that their entitlements or rights are not how they had been previously sold to them by their attorney.  Sometimes it is the expert that takes over and becomes the problem.  In one case, an expert, when confronted with a multi-million dollar math error, said that it was ok, and that he would just fix that error and change another number to get to the same result.  In that case, a mediator who was also a forensic accountant was helpful in getting the litigant to see that their position was unsustainable.

However, you do it, the goal is to get the case on track where the litigant hears, perhaps for the first time, that they may have to reconsider their position, or get a second opinion, or take control of their own case.

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

I have now blogged a few times about the importance for due process in domestic violence matters.  The Appellate Division just gave us another unpublished case, B.L.F. v. T.G.C., to remind litigants and practitioners that the plaintiff in a domestic violence action is limited to the four corners of the Temporary Restraining Order (“TRO”) and, if the TRO is amended or the plaintiff testifies about incidents outside of those four corners,  the defendant must be given the option to have more time to prepare their defense.  Interestingly, B.L.F. reiterates this requirement even where the Appellate Division affirmed the Final Restraining Order (“FRO”) based on a predicate act that was unrelated to the testimony outside of the TRO,  but reversed the findings of additional predicate acts that may have been impacted by such testimony.  Thus, the net result does not materially impact the defendant because the FRO stands without question.

In B.L.F., a physical altercation occurred in the parking lot of Plaintiff’s gym where Defendant appeared unannounced. Neither party disputes that Plaintiff was in her car and Defendant’s arm was in the car window.  Plaintiff testified that she tried to roll up her car window after telling Defendant she didn’t want to speak to him, Defendant pushed the window down, they screamed at each other, Plaintiff began to back up and then Defendant grabbed her arm leaving bruises on her arm of which she had pictures admitted into evidence.  Defendant testified that Plaintiff rolled up the window while Defendant tried to get his arm out and then she released the window (by a centimeter), he got his arm out and fell to the ground.  The trial court found Plaintiff credible and that Defendant’s version of the incident “defied logic”.  The trial court entered an FRO against Defendant based on the predicate act of assault related to this incident, as well as on harassment and stalking based on other incidents of Defendant appearing unannounced at plaintiff’s home and restaurants – two of which were not included within the TRO.

The Appellate Division stated:

We conclude that it was improper for the trial court to consider testimony concerning these two additional episodes without asking the defendant whether he needed time to prepare a response to those new allegations. It is not clear on this record whether and to what extent plaintiff’s testimony concerning these additional incidents may have affected the trial’s court’s conclusions with respect to the harassment and stalking predicate offenses. It is clear, however, that plaintiff’s testimony about these two additional incidents would have no effect on the trial court’s findings with respect to the assault predicate offense and the need for a FRO based on that assault.


The Appellate Division reiterated a trial court’s duty to pose questions from the bench when one or both litigants are self-represented, but that those questions must be designed to elicit testimony about allegations within the TRO, understanding that testimony may lead to the revelation of other events, as provided by J.D. v. M.D.F., 207 N.J. 458 (2011).  Like contemplated in J.D., the trial court in B.L.F. asked questions of Plaintiff.  However, the issue arose by the trial court asking: “Were there other places and times when the defendant appeared without notice?”, which elicited testimony outside of the TRO and was followed up with: “”Do you have any additional testimony for the Court to consider that you’ve not already provided?”, again eliciting testimony outside of the complaint.  While the Appellate Division did not find fault in the questions themselves, the trial court did not explicitly give Defendant the opportunity to request an adjournment after Plaintiff testified about incidents beyond those listed in the TRO.

Notably, the Appellate Division found in favor of Defendant on this limited issue even though (1) Defendant may have known about his right to request an adjournment because earlier that day Plaintiff amended her TRO and Defendant chose to proceed after the trial court asked him if he was prepared to respond to the new allegations, (2) he didn’t object to the questions and (3) his testimony included a response to one of the two new incidents that Plaintiff testified about.  Reading into this, the Appellate Division opined that Defendant may not have been prepared to defend against both new incidents since he only testified about one.

The Appellate Division also found that the testimony outside of the TRO may have impacted the stalking and harassment findings because the trial court discussed it in the oral decision.  However, the Appellate Division specifically opined that the additional incidents did not impact the assault finding because they were unrelated.

Finding the predicate act is only the first step of a FRO hearing.  We then look to Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006) to determine whether an FRO is necessary to protect the victim.  The need for protection is presumed when the underlying act is of physical violence.  Therefore, the Appellate Division found that the testimony outside the TRO did not impact the trial court’s Silver analysis as it relates to assault.

B.F.M. emphasizes the need to specifically ensure on the record that the defendant in a domestic violence matter is prepared to proceed whenever a TRO is amended or testimony is given outside the four corners of the TRO – even when the defendant was made aware of this right earlier in the same day but for another matter, when the defendant touched upon some of the new testimony within his/her own testimony and when the plaintiff is entitled to an FRO for other predicate acts.

Lindsay 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

Lindsay A. Heller, Associate, Fox Rothschild LLP

graduation child

A recent Appellate Division case reminds us of the potential pitfalls of negotiating contingent issues in property settlement agreements, specifically as it relates to contribution to future college costs of children born of the marriage.

In Zegarski v. Zegarski, the parties had four children, with the two oldest already attending in-state college at the time of their divorce. Their post judgment litigation stemmed from a disagreement about their respective contributions to the college costs of their third child, four years after their divorce.

The parties’ PSA provided that both parents would contribute equally to “all reasonable and agreed upon college and secondary education costs…after any and all financial aid is received by said children.” The agreement further required the parties to “consult with each other and with the children with a view toward providing each child with the best education possible in view of their particular circumstances, each child’s educational abilities and desires, and the parties’ then existing financial ability.”

During their third child’s college selection process, the child expressed an interest in pursuing engineering and received offers of admission from a private out-of-state university and to Rutgers. When the child expressed a preference for the out-of-state school, his father indicated that he could not afford to pay half of the cost of attendance at the out-of-state school. His father remained steadfast in this position, even during an accepted students tour which he attended with the child and his mother. Over the father’s resistance, the child matriculated to the out-of-state school. When the father refused to pay for 50% of the education costs, the child’s mother sought  contribution and counsel fees.

Following a failed attempt to mediate the issues, the trial court determined that the father was not required to pay for half of the out-of-state education costs because he did not agree to them. However, the trial court found it would be “terribly inequitable” to absolve the father of any financial responsibility.  Accordingly, without a plenary hearing, the trial court surmised that the father’s contribution should be based on the cost of attending Rutgers, where the parties’ oldest two children went to school.  Without creating a record of what that cost would be, the trial court concluded that in-state tuition would likely cost $20,000 per year after financial aid, and ordered the father to contribute that half that amount for the first year, with a 5% inflation adjustment for subsequent years.  Both parties appealed, dissatisfied with the mandated contribution.

First, the Appellate Division concluded that the PSA did not require the father to pay half of the child’s out-of-state costs because he did not agree with them, which was an essential term of the agreement.  The court rejected the mother’s argument that mere consultation about college was sufficient.  The court further held that it would not enforce “an agreement to agree” to the extent one was implied in the agreement by the mother.

The court next determined that the PSA was silent as to allocation of college expenses in the event the parties did not agree. Accordingly, the trial court erroneously failed to address the Newburgh v. Arrigo and statutory factors which apply in the absence of an agreement.

Second, the court found the trial court to ascribe too much weight to its determination of what amount the parties would have likely paid for college in the absence of divorce.  The court warned that such hypotheticals are conjecture and “fraught with uncertainty,” which is why that is but one of many Newburgh factors to consider.

Third, the court held that there cannot be a cap on a party’s contribution at the cost of in-state tuition where the balance of the Newburgh factors favors a private school.  Here, the court found that the trial court did not make an appropriate analysis of this issue. Further, the trial court’s conclusion that in-state tuition would cost $20,000 lacked evidential support in the record.

In sum, the Appellate Division remanded the case for an analysis of the Newburgh and statutory factors in light of the PSA’s silence on this issue under these facts. This decision is illuminating for several reasons. Generally, it is a cautionary tale on an agreement-drafting issue that applies beyond just college contribution.  How can one adequately address future/contingent events in an agreement? If it’s too specific, it cannot account for the number of outcomes which may arise down the line. If it’s too vague, this decision tells us the court must revert to the statutory and case law precedent, regardless of the parties’ intention to resolve the issue by way of a PSA.

With regard to college, this task is even more challenging when the children implicated by the agreement are young. How can one specifically address college contributions  for babies and small children? In Zegarski, negotiating a term which would have applied in the event the parents could not agree on college selection would have given the court something to interpret, and may have spared the reversion to the default, precedential statute and case law. While impossible to account for every possible contingency, the wise and wary drafter should take a step back and ensure the agreement does not include a foregone conclusion that leaves a gap in the agreement if that outcome does not come to pass.

Interestingly, the Appellate Division’s decision made no mention of the child’s actual out-of-state’s education costs. This opinion plainly was not predicated on any dollars and cents inequities of the trial court’s rulings.  The decision offers a helpful reminder to place equal emphasis on the language of the agreement which is to be enforced/set aside and the monetary implications of its implementation.



Katherine A. Nunziata, Associate, Fox Rothschild LLPKatherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at

Raising children born of interfaith marriages can have its challenges (and of course, its unique joys – Chrismukkah, anyone?), but at least parents in intact families navigate and mediate these challenges together.  If and when parents of different religious faiths divorce, the questions of whether and how to raise the children in a particular religion while respecting the traditions of both parents and their families are difficult ones to answer.

New Jersey’s case law on this subject is straightforward.  The case of Feldman v. Feldman, 378 N.J. Super. 83 (App. Div. 2005) tells us that the custodial parent ultimately controls the children’s religious upbringing, absent some sort of agreement specifying otherwise.  However, this does not prevent the non-custodial parent from engaging in his or her own religious practices and exposing the children to those customs during his or her parenting time.  Put another way, the custodial parent cannot go so far as to control the non-custodial parent’s own religious practices; likewise, the non-custodial parent cannot take any action that interferes with the religious upbringing of the children.

Image result for interfaith public domain image

The recent unpublished (non-precedential) Appellate Division decision Dilisi v. Dilisi illustrated the balance that must be struck in order to both uphold the custodial parent’s authority on this issue and also support the non-custodial parent’s religious freedom.  In that case, the Mother was the custodial parent and the Father the non-custodial parent.  Their divorce decree contained an agreement that the children would be raised in the Roman Catholic faith, which was the faith of the Mother.  The Father had been bringing the children to a non-denominational Christian church during his parenting time on alternate weekends.  The children continued to be raised as Roman Catholics and engaged in all of the usual religious practices of that faith, without interference from the Father.

The lower court interpreted the parties’ agreement that the children would be raised in the Roman Catholic faith as an agreement that, if the children were to attend church, then it would be a Roman Catholic church.  The lower court judge, therefore, ordered the Father to stop bringing the children to his church during his parenting time, and directed that he could only bring the children to a Roman Catholic church.

The Appellate Division overturned this decision, finding that the Father was not doing anything to impinge on the Mother’s authority as the custodial parent to determine the children’s religion, because even though he was bringing them to a different type of religious service, they were still being raised as Roman Catholics.  Further, to prohibit the Father from going to his desired church service during his parenting time forced him to choose between practicing the religion his daughters were being raised in, or no religion at all.  This, the Court found, was a violation of the Father’s own religious freedom and, therefore, was a bridge too far.

If you are going through a divorce and yours is an interfaith marriage, this is something to consider when negotiating the terms of a settlement agreement.  While religious differences may or may not have been a major source of marital strife, they may become an issue post-divorce.  It is important to know that the custodial parent will be given preference in this area unless you agree to the contrary or specifically identify this issue as one in which neither party is to be given priority.

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

I have written many times over the years regarding parent coordination, both during and after the end of the Supreme Court pilot program.  A parent coordinator is a person, sometimes a mental health professional and sometimes a lawyer, that is appointed to assist parties in high conflict custody disputes.  The description and function of a parenting coordinator under the pilot program were as follows:

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.

The goals are laudatory and make sense.  That said, they often didn’t work because the intransigent party would not follow the parent coordinator’s recommendations.  In these circumstances, if the court order required the parties to bring parenting issues to a parent coordinator first before coming to court, and one party wasn’t going to follow the recommendation, the result was often a several month delay until something got decided by a court.  Separately, the problem parent, assuming one was worse than the other, would present any issue, every issue to the parent coordinator, using the process as a way to abuse the other parent.  This sometimes could be dealt with with a fee shifting provision, but again, if the party didn’t comply with the fee shifting provision, then back to court the parties went anyway.

Over the last several years, I have seen parenting coordination Orders that provide that the parties must follow the parent coordinator’s recommendation, unless and until it was modified by the Court and moreover, it put the onus on the objecting party to bring the matter to court (but comply pending the decision).  Note that court’s cannot totally abdicate decision making to a PC and this is not a total abdication because there is a right to object to the Court.

That seemed like progress except when the parent coordinator refuses to enforce their recommendations.  In a recent matter, both the Court’s Order of appointment and the parenting coordinator’s own retainer agreement provided language that his recommendations were binding until modified by a court.  Except that the father would never accept or follow the recommendations, and also not go to court to set them aside)and the PC would often relent.  I have heard of another recent matter with a similar mandate that was in a Consent Order requiring that the parties follow the PC’s recommendations or file a motion within a certain number of days from the recommendation if they objected.  The objecting parent will not comply and the PC is not putting her foot down.  Not only does this empower the offending parent, but it further delays resolution and continues to victimize the parent that is in the right.

Often, the explanation is that the PC wants the parties ultimately to come to a consensus.  In most cases, however, if they were able to do that, they wouldn’t need a PC in the first place.  More importantly, the role is not mediator or therapist.  The goal is to not be even handed or Solomonic where you have one parent that is the offender the majority of the time.  If the PC cannot make the tough recommendation and stand behind it, their appointment is pointless and a waste of the parties’ resources.  Moreover, it allows the offending party to continue to use the process to harass and abuse the other party.


 Eric 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


Grandparent visitation is a unique area of family law that presents interesting case law every few years and seems to be growing with time and modern families.  We have blogged about this issue, including the requirement to show harm to the child if the grandparent doesn’t have visitation and procedure for grandparent visitation applications, as well as impact of Consent Orders between parents and grandparents for visitation with the child.   The Appellate Division just released an unpublished (non-precedential) decision in a consolidated appeal that touches upon both the harm requirement for cases reviewed under the Grandparent Visitation Act, as well as issues with consent agreements for grandparent visitation: L.S. and L.V. v. F.S. and S.P.M./L.S. and L.V. v. F.S. and A.K.

The case answered two unique questions:

  1. Whether a grandparent visitation claim can be dismissed without a plenary hearing.
    • Yes. “Where a grandparent cannot make a threshold showing of harm, the complaint should be dismissed.”
  2. Whether a change in circumstances is required in order to modify the agreement between one parent and the grandparents when the agreement is not incorporated into an enforceable judgment or Court Order.
    • No. “…[G]randparent visitation agreements should be subject to a change of circumstances standard only if the agreement is incorporated  into an order or judgment and an application to the court is made for “modification of a consent order governing grandparent visitation”‘.

While those answers may seem simple, the facts of this case are nothing short of intriguing.  The plaintiffs in both matters are paternal grandma and great grandma.  The defendants in both matters are dad (F.S.) and former wife (S.P.M.), and dad (F.S.) and current wife (A.K.).  In both matters, plaintiffs sought parenting time with F.S.’ children/their grand and great grandchildren (1 child in the S.P.M. matter and 3 children in the A.K. matter, 1 of whom is A.K.’s child from another relationship who F.S. was adopting).

F.S. and S.P.M.

F.S. and S.P.M. had their daughter, Ellen, at young ages as she was born in 2011 and S.P.M. turned 18 in 2013.  Plaintiffs claim that Ellen, F.S. and S.P.M. lived with plaintiffs until they moved to a home near great grandma’s house.  However, S.P.M. claims she only lived with plaintiffs on the weekends.  Regardless, it appears undisputed that Plaintiffs brought F.S. and S.P.M. into the family business and paid the majority of their expenses.  Plaintiffs also claim that when the F.S. and S.P.M. moved into their own home, plaintiffs provided daycare services, the family had most dinners in plaintiffs’ home and Ellen spent a weekly overnight in plaintiffs’ home.  Eventually, F.S. and S.P.M. separated and got divorced.  F.S. had supervised parenting time with Ellen in plaintiffs’ home with great grandma as the selected supervisor and S.P.M. also present.  S.P.M. moved in with F.S.’ aunt and uncle and engaged in a relationship with the uncle (i.e.: grandma’s brother-in-law).  F.S. was abusing drugs (which was blamed on this relationship).  In any event, S.P.M. remained close with F.S.’ family and Ellen visited with grandma at least 3-4 days per week and they had daily telephone contact.  F.S.’ parenting time with Ellen continued at plaintiffs’ home until she was three years old.

F.S. and A.K.

Meanwhile, F.S. started a relationship with A.K.  and they lived together in plaintiffs’ home with A.K.’s child from a prior relationship.  They moved out after the birth of their first child together.  When F.S. had parenting time with Ellen, A.K. and their child, as well as A.K.’s child from another relationship, would all have dinner together with plaintiffs and the children spent overnights there. Plaintiffs continued to provide financial support to F.S. and the children.

Breakdown with Plaintiffs

It seems like every party has a different reason for the breakdown between Plaintiffs and each Defendant; however, they all agree the a significant breakdown occurred.  Plaintiffs claim that problems started in 2016, which they blame on F.S. and A.K. extorting money from plaintiffs in order to have visitation, leading to over a year of grandma not having a meaningful relationship with her grandchildren.  In her cross motion, S.P.M. claimed that problems began before then and were primarily related to plaintiffs fueling disagreements between F.S. and S.P.M., instigating child welfare complaints against S.P.M. (that did not result in any findings against S.P.M.) and exposing Ellen to screaming arguments between F.S. and plaintiffs.  At oral argument, F.S. blamed the period of no contact on an argument between F.S. and plaintiffs that then resulted in him being fired from the family business and in a homeless shelter.S.P.M. also explained that once F.S. was estranged from plaintiffs, he and S.P.M. successfully co-parented and Ellen improved in school and in her personal life.  In the year without contact, Ellen spent parenting time with F.S. on weekends and weekdays without incident.  A.K. claimed that during the year of no visitation, grandma refused to visit Ellen in their home even though other family members visited, and that the children were experiencing “peacefulness” during this no contact period.

Grandparent Visitation Agreement

Toward the end of the no contact year, plaintiffs and F.S. entered into an agreement for visitation with the children.  Neither S.P.M. nor A.K. signed the agreement or even knew about the agreement before it was signed.  F.S. thought S.P.M. and A.K. would object to the agreement had he presented it.  The agreement  did not refer to the pending divorce between A. K. and F.S., under which parenting time orders had been entered. The agreement was never entered into an enforceable Court Order or judgment.  Notwithstanding, the agreement had clear terms for regular and summer visitation with plaintiffs, exchange locations, make-up time, anti-alienation clauses and language acknowledging the children’s significant relationship with plaintiffs.

F.S. did not follow the agreement, which plaintiffs claimed was because he still tried to extort them for money in order for them to have visitation under the agreement. F.S. claims he did not cooperate because plaintiffs violated S.P.M.’s wishes, such as posting pictures of the children on social media and letting them in a pool.

Notably, at oral argument, F.S. claimed he did not participate in the drafting or understand that overnights were part of the agreement. Both mothers were opposed to plaintiffs having any contact with their children.

Close up of wooden gavel isolated on white backgroundTrial Court Decision

The trial court heard the matter in November 2017 and dismissed plaintiffs action without a plenary hearing after hearing oral argument.  Plaintiffs and S.P.M. had counsel arguing on their behalf and the court took testimony from F.S. and A.K. who did not have counsel, as well as from S.P.M. regarding lack of harm to the children by not having contact with plaintiffs.  A.K. also acknowledged that she knew about the agreement, but not until after it was signed and she objected to plaintiffs having any contact with the children.

The trial court’s decision considered both enforcement of the agreement and the grandparent visitation rights statute.

Regarding the agreement, the trial court  distinguished this matter from Slawinski v. Nicholas, noted in the above prior blog, involving a Consent Order for grandparent visitation.  However, the agreement here was merely a private agreement and it was not signed by both biological parents.  The trial court further noted that the biological mothers who object to the visitation are fit parents.  The mothers also believe that the relationship between the children’s parents would be impacted by the grandparents having visitation.  F.S. is also a fit parent and also objects to the time.

Regarding the act, plaintiffs did not meet their burden to prove by a preponderance of the evidence that the children would be exposed to harm without the grandparent visitation, despite the trial court’s acknowledgment of a close relationship between plaintiffs and the children.  This step is required before a court turns to the statutory factors, as explained in the above prior blogs. The trial court noted that two of the four children were infants when the agreement was signed and, thus, could not have had the “profound, substantial and enduring relationships” with plaintiffs as they had claimed; the plaintiffs were never full-time caregivers; and, the mothers were not parties to the agreement.  The trial court went on to state that even if harm was demonstrated, visitation would not be in the children’s best interests because the mothers were fit parents and it would have negatively impacted the parents’ relationship with each other.

Appellate Decision

The Appellate Division affirmed the trial court’s holding.  The Court acknowledged the “value of a child’s relationship with his or her grandparent”.  However, superior to that value is “…the principle that parents have a fundamental right ‘to make decisions regarding the care and custody of their children'”, citing to the polestar case of Moriarty v. Bradt, also discussed in the above prior blogs.  Pursuant to Moriarty, the grandparents must prove by a preponderance of the evidence that visitation is necessary to perform harm to the child, which the grandparents did not accomplish here.  As the Court explained while relying on case law, the statutory factors are only reviewed after this burden to prove harm is met. Thus, the court held that “Where a grandparent cannot make a threshold showing of harm, the complaint should be dismissed“, which is what happened in this matter.  They further stated that “…no evidence [was] presented by plaintiffs that established the requisite showing of particular ‘concrete harm’ to any of the children that would support a finding that plaintiffs overcame the presumption against interference with the parents’ fundamental rights” – focusing on the fact that all parents opposed the visitation and are themselves fit parents, the grandparents were never permanent caretakers of the children and they only speak of general suffering in the event of lost contact.

Regarding the agreement, the court found that it is not enforceable/doesn’t require a change in circumstances to modify.

We concluded in Slawinski that grandparent visitation agreements should be subject to a change of circumstances standard only if the agreement is incorporated into an order or judgment and an application to the court is made for “modification of a consent order governing grandparent visitation

Absent a court order, a parent who agrees orally or in writing to allow grandparent visitation is free to withdraw from that agreement unless the significant harm required by the Act is established.”


After all of that, it’s important to remember the tough burden of proof in grandparent visitation cases before running into court.  Also, if entering into an agreement for grandparent visitation, make sure it’s filed with the Court and both biological fit parents are parties if you foresee any enforcement issues (and even if you don’t).

Lindsay 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

Lindsay A. Heller, Associate, Fox Rothschild LLP

Some people think there are no winners in divorce court. While I like to have a more optimistic outlook, it goes without saying that family law cases sometimes yield unhappy litigants.   With emotions running high and issues so personal in nature, it is common to have one, or both, parties unhappy with a decision of the court. So what do you do when you’re on the receiving end of an unfavorable court order? A recent Appellate Division case reminds us that, when looking for a second bite at the apple, procedural errors made by the lower court can be just as important as substantive ones.

In the recent unpublished decision of J.H. v. K.H., the defendant was dissatisfied with a trial court’s order, so he filed a motion to vacate that order and, when that was unsuccessful, he filed an appeal. This case involved post-divorce issues related to interpretation of the parties’ property settlement agreement (PSA) and issues regarding child support.

At the time of divorce in 2016, the parties executed a two-page PSA, without the assistance of attorneys. It provided, in part, that defendant would pay child support to plaintiff and he would give plaintiff the former marital home “free and clear” by September 2021. When defendant failed to meet his child support obligations, plaintiff filed a motion in 2017 to enforce her rights under the agreement, as defendant’s failure to pay support allegedly resulted in her inability to pay the mortgage on the former marital home.

Defendant contended that he was never served with a copy of the motion papers and only learned of the pending motion by calling probation to inquire about his support arrears. When he appeared in court on the return date of the motion, he was “advised to leave” by court staff because he had filed no papers and the matter was being decided as unopposed.

The resulting order found defendant in violation of litigant’s rights for failure to pay child support and “regarding” the former marital home. The statement of reasons provided with that order cited to the PSA to provide that “defendant shall satisfy his child support obligations” and “bring his mortgage payments current,” with no reference made whatsoever as to the proper service of motion papers on defendant or his ability to meaningfully respond.

When defendant filed a motion to vacate that order, he certified that he never received the motion papers, while plaintiff certified to the contrary. Defendant further requested a finding (or alternatively, a plenary hearing) as to interpretation of the two-page PSA, as he contended it was the parties’ intention to afford plaintiff a five year window to refinance the former marital home and that he was not responsible for mortgage payments in the interim. The trial court denied oral argument on this motion and summarily denied defendant’s request, in part finding that defendant was obligated to “give” plaintiff the property by September 2021 pursuant to the PSA and that he shall therefore “deliver the property” to her by that date. The trial court further found this provision of the PSA to be “unambiguous.”

On appeal, the Appellate Division found several procedural errors below:

Deficient Statement of Reasons: The trial court erred by failing to make requisite findings pursuant to R. 1:7-4(a). The appellate court held that meaningful appellate review is inhibited unless the judge who sat below sets forth the reasons for his or her opinion. The appellate court determined that the trial judge made insufficient findings and conclusions of law. The statement of reasons issued with the first trial court order was deemed conclusory in nature. The court found this to be especially problematic where the motion was decided on the papers.

Failure to Grant Oral Argument: The trial court erred in denying oral argument on the motion pursuant to R. 5:5-4(a).  The appellate court found that there is a strong presumption in favoring argument of motions other than calendar and routine discovery matters. This error was particularly egregious considering the conflicting certifications of the parties filed in connection with the motion to vacate.

Service of Process Issues: Though not expressly stated in the decision, the appellate court seemed troubled by the lack of probing inquiry made by the trial court into the allegedly deficient service of process of the original motion on defendant. Further, the appellate court chastised the lower court for not curing this procedural deficiency by affording defendant the opportunity to present his “potential, meritorious defenses” in the first motion.  In theory, this could have been accomplished either by granting oral argument or permitting an out of time submission.

Relying on these procedural issues, in part, the Appellate Division reversed the trial court’s determinations and remanded for a plenary hearing regarding the parties’ intention as to their PSA.

While in this case, the appellate court found both procedural and substantive issues with the lower court’s decision, it shows how fatal procedural errors can be, regardless of substance. If you are dissatisfied with a court ruling, in addition to analyzing the merits of the ruling, don’t forget to look at how the court came to that decision, as a procedural error may be the key to undoing the  decision the court has made and getting the opportunity to make the court take a second look at your substantive issues.



Katherine A. Nunziata, Associate, Fox Rothschild LLPKatherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at