Best Interests of the Child(ren)

Family law practitioners know that in this area of practice, perhaps more so than in any other practice, hearsay statements are often an important part of motions brought before the trial court for every kind of relief imaginable.  A hearsay statement is a statement made outside of the court that is offered for the truth

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

You know you are intrigued by the title of the blog, but what does it really mean?  I was in a recent mediation session in a divorce matter when the mediator referred to the child as his “client”.  What he meant was that the child’s interests and well-being were his primary concern above all else,

While it doesn’t happen in every case, from time to time there is a request made by a client or opposing counsel to tape the meeting between the opposing expert.  This happens more frequently in contested custody cases, but it could happen as to any expert, I suppose.  The general rule seemingly had been that these sessions can be taped (with notice – not surreptitiously).  Why do people want to do this?  Some people are not trusting.  Others want to make sure that they are not misquoted in an experts report.  Some even do this if an expert is known to ask leading types of questions suggesting a response that may then be used against the party being interviewed.

A question recently arose as to whether the experts can be compelled to tape all interviews, not only of the one party, but of the children too.  In a reported (precedential) trial court opinion in the case of Koch v. Koch which was decided last year but approved for publication last week, the judge refused to allow all interviews to be taped.  Specifically, the court concluded that concludes that a party has the right to record his or her own interviews with a psychologist or psychiatrist, but does not have the right to compel the other party’s expert to record interviews of the other party or the parties’ children.

As to the general rule noted above, the judge here was not so sure and the opinion included a threshold discussion as to whether expert interviews in a custody case could be taped since the case that lawyers generally relied on involved the taping of a session with a psychologist in a civil litigation.  Notwithstanding the conclusion, the judge noted:

Accordingly, a custody evaluation is an expert report where the court expects, and is
assisted by, the independent professional judgment of a licensed mental health expert.  Requiring recordings could undermine the very purpose of the evaluation. If the children know that they are being recorded, and know that their parents are in a custody dispute, the children might be less candid for fear that their parents will hear what they say to the evaluator. Such recordings effectively bring the parents into the children’s interviews and could distort the information needed to prepare an accurate and balanced evaluation.


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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.


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Last year, in the Fawzy decision, the New Jersey Supreme Court put procedures in place approving parents’ ability to arbitrate child custody opinion.  This specifics of this decision was the subject of a prior blog at the time of the decision.  One of the procedural safeguards required by Fawzy was a verbatim record of the proceedings so that there could be meaningful review of the decision by a court.  Yesterday, the Supreme Court revisited this issue in the case of Johnson v. Johnson.  In May of this year, I previously blogged about this case though at that time, we all thought that the bigger issue for the court’s consideration was whether Fawzy could be retroactively applied.

In Johnson, there was no verbatim record as was required by Fawzy, for the simply reason that the parties had agreed that there was not going to be a verbatim record.  They did, however, agree that the arbitrator would provide detailed findings of fact.  In fact, the arbitrator did provide extremely detailed findings both in the initial opinion and upon a motion for reconsideration.  After Fawzy was decided, an appeal ensued and the arbitration award was set aside for no verbatim record. 

The Supreme Court in Johnson started by reminding us of what Fawzy requires with regard to an agreement to arbitrate:

must be in writing or recorded in accordance with the requirements of N.J.S.A. 2A:23B-1.
In addition, it must state in clear and unmistakable language: (1) that the parties
understand their entitlement to a judicial adjudication of their dispute and are
willing to waive that right; (2) that the parties are aware of the limited circumstances under which a challenge to the arbitration award may be advanced and agree
to those limitations; (3) that the parties have had sufficient time to consider the
implications of their decision to arbitrate; and (4) that the parties have entered into
the arbitration agreement freely and voluntarily, after due consideration of the
consequences of doing so.


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I recently read an article about post-divorce parenting. The article made suggestions that I thought were important to echo. In my practice, I see and meet all types of people and parents. Divorce often brings out the worst in people. It’s an emotional time – separation from a partner, equitable distribution, visitation, sale of the marital home, separation from children, moving, dividing of assets, alimony, infidelity, child support, negotiations, court, motions – the list goes on and on. Hopefully, these things will be resolved at some point. But the most important thing when all is said and done is that the children of the marriage are emotionally and mentally unharmed and continue to have a good relationship with both parents.

Without reciting the whole article, I thought I would make some observations about the matters I have handled. One thing I often see in a divorce is when a parent begins to treat their child like a friend.  Parents going through a divorce should not tell their child the intimate details of the divorce as if they are an adult. Divorce is an adult matter. Parents should avoid discussing the legal intricacies of a divorce with their child. It is important to explain to the child that you will be living apart and that both parents still love the child and it’s not the child’s fault. But there is no need to explain who will be receiving the retirement accounts or how much alimony will be paid.


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The scene is not all that uncommon.  Two people marry and have a child.  The relationship ultimately breaks down and, for one reason or another, one parent leaves the home without the child and tries to establish a new place to live.  If a custody order is entered during that time period, will a court