New Jersey Supreme Court

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.

Continue Reading New Jersey Supreme Court Weighs in Again on Arbitration in Custody Proceedings

I have previously posted several blog entries about custody and parental rights where DYFS (“Division of Youth & Family Services”), NJ’s child protective agency, has involvement.  To read those posts click here, here, or here.

On September 29, 2010, the NJ Supreme Court issued an opinion addressing the standards to be applied to a sibling’s request for visitation after children are placed outside the natural family’s home and after they are adopted.  The opinion of In the Matter of D.C. and D.C., Minors provides guidelines for those siblings who seek to continue a relationship with their adopted and/or placed siblings and addresses a very important issue for families across this state.

The facts of D.C. can be summed up as follows: Nellie, the biological sister of Hugo and twins sought custody and visitation of her siblings after DYFS removed the children from her mother’s care and placed them in separate homes.  In 2005, Nellie, then age 23, resided in Va.  Hugo was 14 years old at the time.  In 2006, Hugo was placed with Nellie.  In 2007, DYFS discussed visitation of the twins with Hugo and Nellie.  In August 2007, Va.’s child placement agency (“RDSS”) approved placement of the twins with Nellie and Hugo but expressed concerns about Nellie’s ability to support the children.  Based on that concern, visitation was recommended to ease the transition.  Then, in late 2007, RDSS rescinded its recommendation for placement of the twins with Nellie and Hugo because of Hugo’s poor grades and Nellie’s job loss.

The biological mother’s parental rights were terminated in December 2007.  In January 2008, DYFS approved Nellie as kinship legal guardian of Hugo, but not the twins.  At the same time, Nellie was informed visitation with the twins would stop.  In April 2008, Nellie filed an action seeking placement of the twins in her care or alternatively reestablishing the sibling visitation.  DYFS opposed her application.Continue Reading NJ Supreme Court Reviews Standard for Sibling Visitation After Adoption and/or Placement

The Supreme Court of New Jersey’s recent decision in New Jersey Division of Youth and Family Services v. L.L., provides a good opportunity to review New Jersey’s Kinship Legal Guardianship Act. The Act is designed to address the needs of children and caregivers in long-term “kinship” relationships, placing those children who cannot safely reside with their parents in the care of a relative or family friend. This placement option avoids the need to terminate parental rights where adoption is either unlikely or not possible. 

The Act defines a “kinship legal guardian” as a “caregiver who is willing to assume care of a child due to parental incapacity, with the intent to raise the child to adulthood, and who is appointed the kinship legal guardian of the child by the court[.]" From a legal rights standpoint, the guardian has the same “rights, responsibilities and authority relating to the child as a birth parent,” subject to various limitations set forth in the Act. By that same token, the birth parent can consent to an adoption or name change, must continue to pay child support, and can still have parenting time with the child as determined by the Court. As parental rights are not terminated, the Act logically provides that the child does not lose rights derived from the parents, such as rights of inheritance, benefits, etc.Continue Reading Supreme Court Rules on New Jersey’s Kinship Legal Guardianship Act

Previously, I blogged on the Appellate Division’s reported (precedential) decision in Kay v. Kay.  The New Jersey Supreme Court granted Certification and the decision was rendered on January 6, 2010.  In a per curiam decision (i.e. no one specific Supreme Court Justice authored the opinion), the Appellate Division decision was affirmed for substantially the reasons set forth in Judge Grall’s appellate opinion.

To reiterate what this case is about, the Appellate Division held that when the estate of a spouse who died while an action for divorce is pending presents a claim for equitable relief related to marital property, the court may not refuse to consider the equities arising from the facts of that case solely on the ground that the estate may not assert equitable claims against the marital estate sounding in constructive trust, resulting trust, quasicontract or unjust enrichment. In that case, the husband died basically penniless and the wife had assets in excess of $650,000 at the time.

The Appellate Division and now Supreme Court held that when the estate of a spouse who died while an action for divorce is pending presents a claim for equitable relief related to marital property, the court may not refuse to consider the equities arising from the facts of that case solely on the ground that the estate may not assert equitable claims against the marital estate sounding in constructive trust, resulting trust, quasicontract or unjust enrichment. This case rejects the holding in Krudzlo v. Krudzlo, a reported trial court opinion from 1990.Continue Reading Supreme Court Affirms Kay Decision – Estate of Litigant Who Dies During Divorce Can Make Equitable Claims