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 a recent case, Passaic County Board of Social Services on Behalf of T.M. v. A.S., the New Jersey Family Court encountered a unique set of facts.  A mother of two twin girls sought to establish the paternity of her daughters in order that the father would be obligated to commence paying child support. 

Trials in divorce matters are kind of like the Loch Ness monster – lots of people of heard of it, but few have actually seen it.  The system is currently set up such that there are many vehicles to get people to a settlement.  Moreover, most cases should be settled.  In fact, as I have blogged in the past, the cases that often get tried are ones where one, if not both parties, are totally unreasonable and unrealistic. As noted in prior blogs,there are, however, bona fide cases that cannot be settled and must be tried.

Many judges have a pre-trial Order or letter citing requirements of things that must be done before trial.  One of the things often on the list is that counsel are supposed to confer to to see if the can reach any stipulations as to facts, and sometimes legal issues.  Court’s have noted that "stipulations serve as a tool that enables parties to avoid the expense, trouble, and delay of adducing proofs on facts that, absent a stipulation, are contestable."  Though I have one colleague that refuses to enter in to stipulations because he feels that it throws off the flow or leaves holes in his presentation, generally, stipulations are a good thing because it cuts down on what is already limited trial time. 

Courts often also require parties to confer about joint exhibits for the same reason.  Once the parties agree, the exhibits are marked and should go into evidence without the need for authentication of other testimony.  Examples of things that are commonly joint exhibits are tax returns, bank records, prior court orders and transcripts, credit card records, and the like. 

The question then is, does a trial court have to accept the stipulation, and if they don’t, what is supposed to happen.
 


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Generally speaking, New Jersey statutes and court rules cloak settlement negotiations with secrecy (legally, called a “privilege”) such that what goes on in those proceedings are not evidential, that is, they are “privileged” from being disclosed to a court.

Somewhat of an exception arises in cases in which the negotiations produce an oral agreement. Let’s first deal with this in the context of settlement negotiations not in the mediation context. Usually, it happens this way: the parties are participating in a “4-way” settlement session in which each party is present (either physically or by phone), as is their attorneys. Through the negotiations, agreement is reached as to the basic provisions such that both parties walk away from the session thinking that they have reached a binding agreement, albeit oral, subject only to “finalizing” it by reducing it to writing (and filling in details that would normally expand the basic terms during the drafting process), approved by the attorneys, and signed by the parties. One of the parties then changes his or her mind before any written agreement is signed. The other party says “wait a minute, you can’t do that, we had an oral agreement. You can’t change your mind.” The party backing off of the arrangement says “but we did not have a full agreement. There were many terms and details still to be negotiated.”


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Victims of domestic violence often believe that they will be able to obtain a Final Restraining Order against their abuser simply because they were able to obtain the initial Temporary Restraining Order.  Obtaining an FRO, however, can be more difficult than one might think in light of the necessary proofs that must be made in court. 

The rights of individuals who have children to parent is one of the most precious and protected while at the same time vulnerable and subject to termination when state agencies, including the courts are involved.

In November, Robert Epstein blogged on the procedural safeguards that must be in place when custody is at issue.  To