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Recently I posted about questioning whether your own attorney knows what he is doing and, as part of that question, whether the attorney knows the law surrounding your divorce or related family law matter.  A related question worth discussion is whether you know and understand the law and how it impacts your case.

With busy schedules filled to the brim with jobs, childcare responsibilities, and other daily stressors, I do not want my clients to undertake the unnecessary burden of purchasing a family law textbook and learning its contents front to back.  I do, however, encourage my clients to at least become familiar with the main points of the law.  For instance, most clients seem to know the general principles of equitable distribution in New Jersey – i.e., most assets, under the law, are subject to a 50/50 distribution absent any other factors, credits, or details; most clients also know, and readily offer, his or her awareness of New Jersey’s permanent alimony option. 

It was a recent incident that brought this issue to my attention.  During a first meeting with the parties and a custody expert in a very acrimonious matter, the expert asked one spouse whether her lawyers had explained to her the law of relocation.  She answered "no," despite relocation being one of the primary issues in the case and her desired result.  The expert then asked if her attorneys had made her aware of the Supreme Court of New Jersey’s decision in Baures v. Lewis, and the Appellate Division’s decision in O’Connor v. O’Connor, each of which are seminal cases on the issue of relocation.  The wife answered "no" to each.  Our client, by contrast, was aware of these cases because we took the time to advise him of the cases, and explain their underlying principles.  The expert then directed the wife to ask her attorneys to explain to her the law and those cases.

What is the lesson to be learned here?  If your client is going to spend tens of thousands of dollars, if not more, litigating an issue, make sure that he or she understands the law.  If there is a lack of understanding, or lack of awareness, then how is he or she supposed to know whether their position is reasonable, whether it is worth litigating over, and whether to settle?  An informed client better knows the risks, perils, pitfalls, and chances of success, no matter what area of law is involved.  In family law, where the stakes are often higher and more emotional, it is even more critical. 

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Robert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or repstein@foxrothschild.com.   

We have blogged about the issue of relocation (removal) with children after a divorce and the standards that a court must follow.  To see our prior posts, click here, here and here.  The considerations are different if the parties have a truly shared parenting plan or if the non-custodial parent has something less than 50-50.  In the latter instance, the move must be made in good faith and not inimical to the child(rens) best interests (and there are numerous factors set forth in the Baures v. Lewis case that a court must consider. For true shared parenting cases, moves are more difficult because a more stringent best interests analysis is employed. On top of that, it is not enough that the parties designate their arrangement as joint or shared custody, the case law post-Baures made clear that it was the actual parenting time that mattered not what the parties described to to be.

Against that backdrop, we turn to the unreported (non-precedential) Appellate Division in the case of Walsh-Morales v. Morales decided on November 5, 2010.  In this case, post-divorce, the mother sought to re-marry and move to Texas with the parties’ daughter.  The father moved to bar the move, seeking sole custody if the mother moved.  The mother asserted that she was the primary residential parent- the father asserted that there was true shared parenting.

The trial court determined that there was true shared parenting, denied the mother’s request to relocate and directed that the father be the primary parent if the mother moved.  The mother appealed not necessarily as to the law applied, but rather, as to the factual determination that the parties had true shared parenting.

Continue Reading When True Shared Parenting Isn't 50-50 for Relocation Analysis