New Jersey Superior Court (Appellate Division)

This is not a perfect world we live in and few of us are perfect and free from vices.  There is, however, a difference between imperfections and either addiction and/or mental illness that could impair a person’s ability to parent their children.  Often, when these issues arise, we try to build safeguards into agreements to protect the children where there is a history of alcoholism, drug abuse or significant mental illness.

These are always tricky cases because the infirm party often (1) is in denial or at least downplays the severity of the issue, (2) doesn’t want their problem in writing in a written agreement; (3) there is no agreement as to whether there even is a problem; etc. As such, there are times that we do our best to put as much teeth as possible into agreements to avoid the cost of trial, not over the actual parenting time, but the protections to be put in place when someone falls off the wagon.  With compromise, however, comes the chance, not necessarily of actual risk to the children (thought that certainly is possible too) but the possibility of putting the kids in danger and being left to fix a problem after damage has been done.

The title of this post is came to me after reading the Y.A.B. v. A.C.B. unreported Appellate Division decision released on November 28, 2012.  In that case, despite evidence that he former husband, who had acknowledged alcohol issues, may have been drinking  (private investigator reports showing him buying alcohol, Facebook pictures of him holding a beer and a Certification from an ex-girlfriend regarding the husband’s alcohol use), and protective language in the agreement, not only was his parenting time not meaningfully curtailed, but the ex-wife was seriously chastised for bringing her application.

Continue Reading If Parenting Time is Going to Be Conditioned on Both Sobriety and Total Abstinence, The Agreement Better Say So

The times, they are a’changing – at least when it comes to how the judicial system approaches harassment as an act of domestic violence in light of advanced technology used for communication.  In the newly reported (precedential) Appellate Division decision of L.M.F. v. J.A.F., Jr., the Court addressed the use of electronic communications, specifically text messages, as a form of harassment.  Those claiming an act of harassment based on electronic communications might not like what the Appellate Division had to say, as detailed further below, but the decision provides a breadth of noteworthy language in shaping what is an extremely sound, rationale and common sense methodology to approach such cases in the future.

As a refresher, harassment is defined by New Jersey statute as follows:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

Addressing the struggles faced by courts in addressing harassment as an act of domestic violence, the Appellate Division noted

The facts presented here exemplify the complexity of human interactions and the strain they place on the Family Part judges as they struggle to distinguish between the cases that merit judicial intervention and those that do not.

Further addressing such difficulties in the context of modern technology and the facts at issue, the Court first provided an online definition of “texting” from as:

[t]he act of typing and sending a brief, electronic message (less than 160 characters) via a wireless network to another person so that they can view the short message on any number of mobile or handheld devices.

Continue Reading The Use of Modern Technology as a Form of Domestic Violence – The Appellate Division Weighs In

How does one change their name, or that of a child, in the State of New Jersey?  Well, as set forth in the recently unpublished (not precedential) Appellate Division decision, Henao v. Tibbrine, there’s a law for that, which requires an applicant seeking a name change to file a verified Complaint in the Superior Court, with a sworn affidavit with certain required details.  Interestingly, notice of the application must be published in a newspaper of “general circulation.”

When the hearing occurs, if the verified Complaint fulfills the statutorily specified requirements and there is no reasonable objection to the assumption of another name, than the name change will be permitted.  The issue in Henao was whether the biological, non-custodial mother of two children could orally oppose the father’s name-change application at the hearing on the scheduled date.  Notably, the law specific as to name changes does not require written opposition, which was the basis upon which the trial court relied in denying the mother’s oral opposition (rationalizing that the mother should have known to file an opposition in writing because she had previously been involved with motion practice before the court).  However, court rules specific to the family part do require a written response 15 days prior to a scheduled hearing date.

The Appellate Division disagreed with the trial court, finding that there existed no evidence that the mother was informed of the need to oppose the application in writing.  Interestingly, the Appellate Division in dicta expressed concern with allowing a name change application to proceed via a default judgment.  Noting that a strong presumption exists that the name change is in the best interests of the children since the father was the custodial parent, the Appellate Division also noted that the presumption is rebuttable, especially where the child has used the non-custodial surname for a period of time, is comfortable with that name, is known by that name, and maintains contact with the non-custodial parent.

As a result, the matter was remanded to provide the mother with an opportunity to contest the name-change application, where it is incumbent upon her to establish that it is in the best interests of the children to keep her surname, or, interestingly, have a name that combines that of both parents (such as a hyphenated name).

While not the typical “family part” matter, this case was nonetheless interesting for its specific issue and the Appellate Division’s rationale and concern over the name-change proceedings.

Continue Reading What’s In a Name Anyway?