Last year I blogged on tri-parenting, or the concept whereby three parents agree to raise a child or children together as a family, with regard to the published New Jersey trial court decision of D.G. and S.H. v. K.S. My previous blog post can be found here.

In that matter, D.G. and his husband, S.H., along with their friend K.S. embarked on a journey of conceiving and raising a child together. The parties agreed to use D.G.’s sperm and K.S.’s egg, as they had known each other longer, and they would give the child S.H.’s surname. All three parties parented the child and were effectively able to do so for most of the child’s early life, until K.S. announced that she had fallen in love with A.A., who she intended to marry, and that she wanted to relocate with the child to California where A.A. resided. When the parties’ could not agree on a “tri-parenting plan”, D.G. and S.H. filed a Complaint seeking legal and physical custody of the child, parenting time, and that S.H. (who did not have any biological ties to the child), was the child’s legal and psychological parent.

After 19 days of trial, the Court found that S.H. was in fact the child’s psychological parent (although K.S. also stipulated to this on the eve of trial), and concluded that D.G., S.H. and K.S. should have equal legal and residential custody of the child, and the court established a 50/50 parenting time schedule. However, the court denied S.H.’s request for legal parentage as a matter of law on the basis that the court does not have jurisdiction to create a new recognition of legal parentage other than what already exists—genetic contribution, adoption, or gestational primacy. Further, although the best interest of the child standard is used for various family law determinations, it is not a factor in defining parenthood under the Parentage Act. (N.J.S.A. 9:17:38 through 9:17-59).

I concluded my prior post by stating that

With the evolution of today’s family, “tri-parenting” and other, similar custody and parenting time situations will emerge, creating a new, unique set of issues for families who are dissolving/separating. As the role of “parent” expands, it will be interesting to see how the courts will progress to handle these delicate issues.

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On March 8, 2017, The New York Supreme Court of Suffolk County also granted tri-legal custody and visitation, in the matter Dawn M. v. Michael M.

In that matter, Dawn and Michael, a married couple, began a polyamorous relationship with Dawn’s friend, Audria. All three parties considered themselves a family and decided to have a child together. Since Dawn was unable to have a child, the parties decided that Michael and Audria would try to conceive. The credible evidence presented to the Court established that all three parties agreed, prior to a child being conceived, that they would raise the child together as tri-parents.

Audria became pregnant and gave birth to a boy, J.M.; however shortly thereafter the relationship between the parties became strained and Dawn and Audria moved out together with J.M. Michael commenced a divorce action against Dawn, and asserted he no longer considered Dawn to be J.M.’s parent.

The court found credible the testimony of Audria and Dawn that J.M. was raised with two mothers and that he continues to the present day to call both “mommy.” The court further found that in all respects, during the first eighteen months of J.M.’s life when Dawn, Michael and Audria all lived together, and thereafter after their separation, Dawn acted as a joint mother with Audria and that they all taught the child that he has two mothers. The Court also conducted an in camera interview with J.M., which left no doubt in the Court’s mind that he considered both Dawn and Audria to be equal “mommies” and that he would be devastated if he were not able to see Dawn.

Although not a biological parent or an adoptive parent, Dawn argued that she has been allowed to act as J.M.’s mother by both Audria and Michael, that she has always lived with J.M., J.M. has known her as his mom since his birth and that the best interest of J.M. dictates that she be given shared legal custody and visitation with him. Audria, J.M.’s biological mother, strongly agrees. Dawn further argued, along with the child’s attorney, that Michael should be estopped from opposing this application because he has created and fostered this situation by voluntarily agreeing, before the child was conceived, to raise him with three parents, and that Michael has acted consistent with this agreement by allowing the child to understand that he has two mothers.

The Court found that the best interests of J.M. would be served by granted Dawn shared legal custody, stating that “J.M. needs a continuing relationship with the [Dawn] as his mother and that relationship cannot be left to depend on the consent or whim of either his biological mother or father. Anything less will promote great hardship and suffering for J.M.”, and established a tri-custodial arrangement, as Michael and Audria already shared joint legal custody.”

The Court concluded that Dawn, Michael and Audria

created this unconventional family dynamic by agreeing to have a child together and by raising J.M. with two mothers. The Court therefore finds that J.M.’s best interests cry out for an assurance that he will be allowed a continued relationship with [Dawn]. No one told these three people to create this unique relationship. Nor did anyone tell [Michael] to conceive a child with his wife’s best friend or to raise that child knowing two women as his mother. [Michael]’s assertion that [Dawn] should not have legal visitation with J.M. is unconscionable given J.M.’s bond with [Dawn] and [Michael]’s role in creating this bond. A person simply is responsible for the natural and foreseeable consequences of his or her actions especially when the best interest of a child is involved. Reason and justice dictate that [Michael] should be estopped from arguing that this woman, whom he has fostered and orchestrated to be his child’s mother, be denied legal visitation and custody…To order anything other than joint custody could potentially facilitate [Dawn]’s removal from J.M.’s life and that would have a devastating consequence to this child.”

Although the issue of legal parentage was not discussed in the New York Court opinion, it appears that the New York Court is as progressive as the New Jersey Court in moving  towards alternative custody arrangements in light of the evolution of today’s families.

In the case of M.C. v. P.C. (unreported, non-precedential), Judge Jones explores the issues surrounding mid-week overnight parenting time during the school year and its effect on the best interests of the children. In many cases, both parents live close by and are routinely exercising parenting time on weekdays in addition to weekends. While frequent and continuing contact with both parents is almost always positive for the child, it does not come without issue in the post-divorce context. We frequently see cases where one parent refuses to complete homework or take the child to soccer practice during their weekday parenting time.

The facts of this case are simple. The parents have two children, ages 8 and 10. As part of their divorce agreement, one parent was the primary residential custodial parent with the other parent having reasonable and liberal parenting time, to include every Thursday evening overnight into Friday mornings.

The primary parent, who works in the children’s school (but is not their teacher) filed an application to modify midweek overnight parenting time asserting that the children often come to school unprepared on Friday mornings and without their homework completed. It was alleged that the primary parent then has to rush around on Friday mornings assisting the children with completing their assignments before school formally begins. The noncustodial parent obviously denies same, however the Court noted that neither party produced any corroborating evidence so the Court was forced to rely upon the parties own testimonial positions.

In its analysis, the Court took “judicial notice” (meaning something is so well known it cannot be reasonably doubted) that education is one of the most important aspects of a young child’s life. The Court noted that children “need to learn from both parents, as early as possible, that tending to homework, test preparation and general scholastic readiness must take an appropriately high priority in a child’s schedule”.

That said, even in the cases where the parents are entirely cooperative, when the children go back and forth between households, this creates another layer of difficulty in trying to implement these fundamental educational values and maintain consistency. The Court opined while it is conceivable that back and forth parenting time could cause a child to incur a significant distribution and a loss of appropriate focus on meeting scholastic responsibilities, it is not per se harmful or contrary to a child’s best interests. As with many issues that arise in a family law matter, it is fact-sensitive and case specific given that each family and child is unique.

The Court goes on to remind that:
“Shared parenting” means more than simply counting the hours and minutes a child stays under a parent’s roof but also involves each parent meeting his or her responsibilities during such a time rather than unilaterally passing it off onto the other parent. Put another way, a parent cannot insist on simply taking the children for parenting time while siphoning out the parenting obligations which naturally continue to exist during such times. If a parent wants midweek overnight parenting time during a school year, that comes with all of the scholastic responsibility and other midweek obligations, in one integrated package.

The Court noted that although the primary parent’s testimony was persuasive there were evidentiary obstacles insofar as how prevalent the deficiencies that were complained of really were. Was this a situation where the child only missed 1 out of 10 assignments or a situation where the child’s backpack was not even opened with nothing done at all? The Court noted that evidence could have been presented by school records, testimony from teachers, lower test scores or any other evidence of the children’s lack of readiness on Fridays, as compared with other days when the children are in the care of the primary parent.

In sum, the Court found that there was insufficient evidence to make a specific finding that the homework issue was so prevalent as to require an immediate elimination of midweek overnight parenting time but established a helpful protocol for the parties moving forward as to how to deal with the issue of homework.

What can be taken away from this is case is how important it is to be fully prepared when presenting your application to the Court. Had the primary parent produced more corroborating evidence as to the magnitude of the missed assignments (assuming it was substantial), the outcome may have been different. It is always important to seek the advice of experienced counsel when presenting any application (especially an application to modify an existing arrangement/order) to the Court.

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Lauren K. Beaver is a contributor to the New Jersey Family Law Blog and an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices out of the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, support, equitable distribution, custody, and parenting time. Lauren also offers mediation services to those looking to procure a more amicable divorce. Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and former editor of our Pennsylvania Family Law Blog wrote an interesting post entitled “Listening to Your Kids During Traumatic Times” .

In this post, Mark, from a child’s perspective, lists 15 things that parents going through this process should consider, as follows:

  1. As your kid, I want to love both of you fairly and equally and not have you think that my love for you diminishes my love for the person you once promised to love “forever.”

  2. Moving from one house to another sucks and it’s made even worse when you get all stressed about my leaving. I will be back, just like the court order says.

  3. You are not responsible for everything that happens to me and I realize that when parents disagree, it gets disagreeable. But please don’t make it worse by making yourself crazy. If you feel trapped, try being in my place with two powerful adults wrangling over me.

  4. Please don’t share with me what you and my other parent are fighting about. And, oh yes, I did tell you each something different about what sport I want to play because I didn’t have the courage to stand up to either of you and feel your disappointment.

  5. Let me figure out whether I like the other parent’s new significant other. I am stressed with conflicting loyalty issues already.

  6. It really, really hurts when you don’t show up for something we have scheduled.

  7. Yes, gifts and trips are great but I can tell when the motivation is “Love me more.”

  8. When I’m with you, I do miss my other parent and that does not diminish my love for you.

  9. I am not staying with you to provide information about what the other parent is doing.

  10. Understand that when you share your animosity for the other parent or the frustration you have with them, I have just about no ability to help you with that. I am just the child which usually means all I can really do is channel your stress together with mine.

  11. You may have “moved on” emotionally and found the man or woman of your dreams. Please don’t ask me to share your dream until I am ready. I also know when your “friend” is a lot more than a friend.

  12. If I score a goal or play Dorothy in the “Wiz” I would like you both there sharing my joy. If I hug the other one first afterward, it is not a judgment.

  13. I don’t need to know your side of what happened. I don’t have the coping abilities of an adult and I have never been an adult. If money (or its absence) means you can’t say yes to me, that is something you can tell me without feeling that you failed me.

  14. If there is bad news, please don’t ask me to be the courier.

  15. Over time, I may judge the other parent harshly either with justification or without. I may be asking you to listen. I do want you to listen but I’m not ready to sign up permanently for the “Hate the Other Parent” team.

I recommend that everyone take a minute to read the entirety of this very thoughtful piece.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Despite my reputation to the contrary, sometimes I am a softy – especially when it comes to children.  Maybe it is due to my own experiences as a child of divorce.  Whatever the reason, I read a case today that was heartbreaking and uplifting at the same time.

The case, R.R. v. L.A.C., an unreported (so far because it seems like it was submitted for publication) decision written by Judge D’Alessandro in Hudson County, starts as follows: “This case concerns the Court’s authority to fulfill a Child’s request to hug and see her Father.” When I read that, I have to admit that I did a double take because on its face, it seems like this was not a legal issue at all (and maybe it really isn’t).

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The opinion goes on to address the marriage of people who for various reasons, never spent much time together during their marriage, both before or after the birth of their daughter, who is now in 8th grade.  As a result, the daughter was primarily, if not exclusively raised by her mother or with family in Peru.  During a DCPP evaluation in the past, the child “expressed a poignant wish: ‘to have a Dad.’ Her wish was not fulfilled.”  Just as home life was troubled, so was other areas of her life, as the court noted:

While flailing helplessly in the maelstrom of marital discord at home, Gabriela found no comfort at school. She was taunted and bullied because of her cleft palate, hearing loss and impaired speech. In desperation, Mother sent her back to Peru to live with her maternal Grandmother to escape the bullies and for medical treatment that she could not afford in the United States. Within a few months, Gabriela left her home in Peru for the United States; had her hopes for a family dashed; was bullied at school; and boarded a plane back to Peru without her Mother. Four months later, she returned to the United States at age 14. She is in therapy to ease the pain of separation, bullying, her many challenges and adolescent angst. She had cleft palate surgery. Surgical repairs, speech rehabilitation and dental restoration beckon.

At the divorce hearing, the Father requested a divorce, with the possibility of future parenting time “when I am ready.”  He did not know that his daughter was present in the courtroom.  The Judge noticed her in the courtroom and ultimately, when addressing the court:

Gabriela explained that she came here “to ask [the Court] if it is possible for him [Father] to see me once a week.” Gabriela hesitated before her evocative second request: “and I would like to give him a hug.”

The words in the opinion that followed were poignant:

A hungry person does not want a dissertation on the socio-economic causes of poverty. There will be time enough for that after the hunger pangs subside. A hungry person wants something to eat. Gabriela came to a Court believing that a Judge could and would help her. She did not seek an explanation of why some parents do not see their children. Gabriela stood courageously before strangers risking rejection, disappointment and more heartbreak if her requests were denied. Gabriela’s heart hungered to know and hug her Father.

The father still proclaimed not to be ready to see her.  What follows is what really started to tug at my heart strings.

Through colloquy with the Court, Father began to see things through his daughter’s eyes instead of his own. Father acknowledged that Gabriela was without him for most of her life wondering what she did wrong to explain his absence. He acknowledged that Gabriela might have been justifiably angry when she called him bad names in the past because she was unable to express her pain in a way that he approved of. Gabriela worried about her appearance, her prior surgeries and the surgeries to come. She suffered at school. She was depressed and attempted to harm herself. She was reminded why each time she spoke and whenever she saw her image in the reflection of her tears.

Before Gabriela returned to the courtroom, Mother said that she had a “gift” for Father. Her “gift” was to let him know that Gabriela is now considered a genius at school, and that she is a photographer and a poet whose poetry may soon be featured in the New York Times.

With that, the ice had melted.  The following is where I nearly lost it:

The Court then asked Father if he was ready to share the “gift” that was discussed while Gabriela was in chambers. Father quickly walked toward Gabriela as she rushed toward him. They sobbed heartily and hugged for a long time.

The opinion concluded with even more poignant words – the likes of which we seldom see in the battleground that is the family court:

Courage takes many forms and comes in all sizes. Gabriela’s courageous words were riveting. The tears that she and her Father shared were inspirational. Mother cried afterwards “that seeing my daughter happy makes me happy.” The Court thanks this beautiful child for her gift of hope. Tear-moistened soil is often fertile soil.

What a reminder of the resiliency and indomitability of spirit some children have.  What a reminder that it is never too late to re-establish a broken bond with your child.  What a reminder that a court should do whatever it can to prevent, if not stop (and if necessary, sanction) a parent that is taking actions (or allowing others to do so), which injure a child’s relationship with the other parent.  I have often said that childhood is fleeting.  Judge D’Alessandro’s thoughtful opinion is an excellent reminder of the importance of the parent-relationship.

Now I’m going home to hug my child.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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The Summer season can truly be the best time of the year with the kids out of school, great weather, barbecues, pools, baseball and more.  Divorced parents, however, often experience stress and conflict at a time when they really just want to sit back and unwind.  For those parents, here are a few of the familiar issues that may arise and how to potentially address the situation based on your given case:

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1.  Camp – By now most parents have determined whether, and where the kids are going to camp, whether by agreement or court order.  The last time I checked, sleep away camp is typically running upwards of $10,000 per Summer, per child, and this rite of passage for some kids can prove to be a major financial issue for discussion.  Even day camps can run upwards of $6,000 per child, per year.  A few years ago when faced with the issue of who was paying for camp and for how long the kids should go, I remember a trial judge asking when did kids stop going to the sandlot by themselves and not returning home until dinner.  Probably around the same time they stopped riding bikes outside by themselves.  Nevertheless, this is often an issue for a mediator to help settle and, if unsuccessful, for a judge to decide on a motion.

2.  Parenting time and vacations – Agreements usually provide for what the parenting time schedule will be when the kids are home from school and not away at camp.  I’ve been involved in cases where the parents literally negotiate not only each and every day to ensure that neither has more days than the other, but even who will be driving the kids back from sleep away camp.  On the flip side, many arrangements are defined by flexibility.  In the event of a dispute as to such issues, a parenting coordinator or mediation can facilitate a cost efficient and expedient resolution, as opposed to filing a motion in court that will cost thousands of dollars for each party and may not result in a decision until the Summer is almost over (if not already over).

3.  Work-related child care – Child care issues seem to increase during the Summer, especially if the kids do not go to camp.  The required child care time and cost may, as a result, substantially increase.  Perhaps, during the Summer, a different kind of child care is necessary in a given case, such as an au pair or a nanny, as opposed to a before or after care program utilized during the school year.  Maybe the au pair or nanny is needed for an increased number of hours.  Agreements should provide for such a payment allocation and arrangement to avoid conflict in such situations, but many times a judge will ultimately be faced with an issue to decide regarding Summer work-related child care no matter what the agreement provides.

These are just a few of the issues that may arise during the Summer months.  Ultimately the goal is to reach a resolution, if possible, but oftentimes a judge is called upon to make the final decision.  Addressing these issues in a settlement agreement, to the extent that they can be addressed, may help you avoid the Summertime Blues and bask in the sunshine.  If conflict “rains”, however, it is best to consult with experienced matrimonial counsel before it is too late and school is back in session.

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

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Custody disputes are often an emotionally trying process where litigants are advocating for what they deem to be in the best interests of the child caught in the middle.  Even with the opinion of a custodial expert and months, if not years of litigation, the decision is a difficult one for a trial judge to make.

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A custody dispute between two fit parents requires a court to determine the issue of custody based on the best interests of the child.  When the dispute is between a fit parent and a third party, however, only the “fit parent is presumed to be entitled to custody,” because the rebuttable presumption is that the child’s welfare will be protected.

A third party can overcome the presumption, however, by satisfying the standard required for termination of the rights of a non-consenting parent – unfitness, abandonment, gross misconduct or so-called “exceptional circumstances.”  This is a 2-step process:

  1. Application of the parental termination standard or a finding of “exceptional circumstances.”  Exceptional circumstances may be satisfied by establishing that the third party has become the child’s psychological parent.
  2. If the parental termination standard or “exceptional circumstances” component is fulfilled, the court must decide whether to award custody to the third party in the best interests of the child.

As part of Step 1, to determine if there exists a “parent-like” relationship between a third party and a child, the following 4 prongs must also be fulfilled:

  1. The biological or adoptive parent consented to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child.
  2. The petitioner and the child lived together in the same household.
  3. The petitioner assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation [a petitioner’s contribution to a child’s support need not be monetary].
  4. The petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

Only after this test is fulfilled under the “exceptional circumstances” option can the best interests standard be applied under Step 2.

In J.F. v. R.M., an unpublished (not precedential) Appellate Division decision, the biological father, was denied residential custody of the child in favor of the child’s great-grandmother despite him being deemed a fit parent.  Without getting into too much detail about the facts, the child lived with his maternal great-grandmother after his birth in 2007.  Dad was not involved in his life until 2011, claiming that he did not know the child was his son.  The mother lived with great-grandmother on and off for three and a half years before departing for good.

In early 2011, great-grandmother filed an action seeking custody of the child, which was granted.  She also sought to establish dad’s paternity and his obligation to pay child support.  Dad was granted “open and liberal” parenting time, and he exercised time regularly with the child, including overnights.

In later 2013, dad filed an application for full custody of the child.  Great-grandmother opposed the application, arguing that there was no basis for a change.  After a hearing, the trial judge denied dad’s application and recognizing that, because there was no allegation of parental unfitness or gross misconduct by dad, the law required great-grandmother to demonstrate the existence of “exceptional circumstances” – such as “psychological-parent” status to retain residential custody of the child as a non-parent.

After concluding that she was the child’s psychological-parent based on her bond with the child, and that the child used her as a parental figure even though he knew she was not his mother, the court then applied the “best interests of the child” standard in denying dad’s application.  In so holding, the trial court noted that because great-grandmother was deemed a psychological-parent to the child, she was held on equal footing with dad as a parental figure and, as a result, the best interests standard applied.  Ultimately, the court found no basis to change the custodial arrangement, despite noting that dad was doing “a great job as a father,” because there was no dispute that the child was doing great.

Dad appealed, arguing that great-grandmother was not a psychological-parent and, as a result, the trial court should have applied the “parental fitness” test, rather than the best interests standard.  The Appellate Division disagreed.  Primarily, he argued that he did not consent or foster the child’s relationship with great-grandmother under Step 1 of the psychological-parent test detailed above because he did not know for certain that he was the father.  The Appellate Division, however, noted dad’s concession to knowing mom was pregnant, he never sought to determine paternity until great-grandmother sought child support, and then 2 more years passed before he sought residential custody.  As a result, his actions/inactions were deemed “tacit consent” to great-grandmother’s relationship under the first part of the 4-part test.

Interestingly, the Appellate Division also found the fourth part of the 4-part test fulfilled as to the length of the child’s relationship with great-grandmother because parts two and three were fulfilled with the child living with her throughout his entire life and her being the primary caretaker.

As a result, the Appellate Division affirmed the trial court’s finding that great-grandmother was the psychological-parent and use of the best interests standard in denying dad’s application.  Custody disputes are very fact sensitive situations.  The facts and circumstances here were certainly of no exception in denying a fit biological father’s request for residential custody of the child.

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

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*photo by supakitmod courtesy of freedigitalphotos.net

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, but the concept resonated with both parties involved and focused their attention, at least for the moment, away from the financial issues at hand.

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All too often the litigant mantra is that he or she wants to do what is best for Little Johnny or Susie, but, as one would expect, opinions differ – especially between the litigants – as to what that means.  For instance, mom may believe that it is in the child’s best interests that she be the primary residential custodian, while dad may believe 50/50 is the way to go.  Neither party may necessarily be wrong, but ultimately an agreement has to be reached, or a court-decision rendered that is in the “client’s” best interests.

Here are a few other tips to ensure that the “client” is properly cared for during a litigation and beyond:

1.  Don’t talk badly about the other parent with or in front of your kid!  It is so easy to say, yet seemingly so hard to do for some, if not most parents.  You’d be amazed what a child will overhear and absorb.  Even negative body language in front of the other party while the child is there sends a message.  You may brush it off as nothing, but the impact of your words or actions can have long-lasting effects.

2.  Don’t talk about your case with or in front of your kid!  No child should ever be exposed to what is happening in a divorce proceeding or the issues that may directly or indirectly impact upon him or her.  While even the most off-hand comment may seem innocuous, I can’t tell you how many times clients report to me about what the children know about that latest motion that was filed, or that support payment that wasn’t made.

3.  In connection with the above – Don’t try to curry favor with your kid!  This is not a contest.  There are no blue ribbons at the end, and your child is not the prize.  The “client” does not need to be tugged both ways simply to make you feel better about yourself and your parenting role in the child’s life.  It may sound harsh, but it happens all the time, even in the most amicable of cases.

4.  Talk to the other parent about your kid so that you both know what is going on!  Again, this should seem self-explanatory, yet in many cases one parent will hoard information about a child in a way that never occurred during the marriage.  Johnny needs extra help at school?  Tell the other parent.  Susie is having difficulty with what is happening to the family?  Tell the other parent.  There are so many feelings, emotions and questions that a child may have both during and after a divorce.  To exclude the other parent from what is happening is not only contrary to how things likely worked during the marriage, but…again…may have long-lasting impacts on the “client.”

5.  Finally, remember that it took two parents to bring your children into this world and two parents to raise them to be the adults that you always thought they should and could be.  Present a united front to the “client” – let him or her know that no matter what is happening between mommy and daddy that the “client”‘s best interests are always front and center, and that you and your spouse will be always be there for them.  Sometimes the most basic reassurance goes a long way.

This is really common sense, yet it comes up so often in matters involving children that it only goes to show that common sense sometimes goes out the window in the midst of even the most friendly of divorce proceedings.  Ultimately, while your marriage may be coming to an end, that does not mean that certain steps cannot be taken to protect the child as the “client” at the center of your case.

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

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I experienced a bittersweet moment this weekend.  My family was away for the holiday weekend (the weekend before my daughter’s 11th birthday), and she had a friend with her.  All of a sudden, gone was “daddy” only to be replaced by the much more mature sounding “dad” when she spoke to me.  I was not angry.  In fact, words cannot express the love and pride I have for both of my children.  That said, it was a stark reminder about how fast children grow up.  In a instant, she graduated from that sweet little girl to a mature (most of the time) pre-teen.  It is not that I did not see this coming, mind you, just that when it got here, it was jarring.

Father Holding Child Hand Stock Photo

So why, do you ask, is this family anecdote on a Family Law Blog?  In fact, I am happily married.  However, this reminded me that in one particular case, where there is particularly egregious parental alienation going on, we started using the term “childhood is fleeting”, to urge the court to act swiftly (it didn’t and that is another story – perhaps for a future post on this blog).   Put more simply, while there will always be a parent-child relationship, at least in name or by biology, childhood is finite.  It ends at 18 – if not sooner.  And once it is gone, it is gone.

When a parent interferes with the other parent’s relationship with the child(ren), special occasions interfered with or worse yet, the other parent is precluded from attending, disparaging the other parent to the child, buying a child’s affections, making a child take sides, the harm done is untold.  So too, when a parent voluntarily absents her/himself from a child’s life, think of all that child and that parent loses?  While sometimes there can be make up parenting time, often the parent can never be made whole.  If proms, graduations, religious events, birthdays, fathers or mothers days are missed – you can’t get those days back.

Courts often don’t do enough to stop parental interference (putting aside for the moment that it can take months to actually get before a judge), which only serves to encourage the violator to continue their abhorrent conduct.  Often, they are steeled by the fact that they got away with it, or worse yet, the threats of sanctions are empty threats, empowering the misconduct to get worse.

As I have just seen for myself, childhood goes by in a blink of an eye. Because you can never get the time back, court’s must be more dilligent in ensuring that parenting interference is swiftly remedied.  After all, isn’t this in the best interests of the child?

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Judges want all issues resolved but especially custody and parenting issues.  No issues are more difficult and heart wrenching to decide – especially when facing a true, bona fide custody dispute (and I am not sure that there are really many of those – but occasionally they occur.)

Conflict Resolution Buttons Show War Or Reconciliation Stock PhotoPhote courtesy of freedigitalphotos.net

The New Jersey Court system is set up to try to resolve custody and parenting time issues first.  There is a mandatory parent education program in each county that the parties have to attend (separately) not long after filing.  There is no mandatory alimony, child support or property distribution workshop.  Shortly thereafter, there is mandatory custody and parenting time mediation at the court house – again at the very beginning of the case.  The point is to ferret out those cases where custody really is not in dispute.

Why?  Because the process gets painful and expensive when custody is in dispute.  If custody is not agreed upon, the parties may agree or the court may appoint a custody expert.  Sometimes the parties each get their own expert.  Sometimes, the court adds a third, court appointed expert to the mix.  If things are really bad, sometimes Guardian Ad Litems and/or attorneys for the children are appointed.  Everyone undergoes psychological testing, perhaps more than once (the appropriateness and repetitive testing is a discussion for another day.)  The children are interviewed one or more times by each expert.  They are interviewed and observed with each parent and perhaps their siblings.  Collateral sources are contacted.  Sometimes there are custody interrogatories to be answered and depositions focused on custody issues.  Again, when there is a real custody issue, all of this is fair gain and much, if not all may be necesssary.

But what if it really isn’t necessary because custody and parenting time is or can be resolved except that one parent refuses to settle the issue unless they get what they want financiallyThere should be a special place in you know where for these people.  In light of what I described in the prior paragraph, think about what they are putting their kids through, not because of a good faith custody dispute, but because of money.  Think about what it costs that could be better spent on the kids.  Think about the added stress on everyone, over money.  Think about the ethics of this.  Is this extortion on some level?

Yet it happens all of the time.  We have more than one case in the office now where the other side wont actually settle the custody issues or even address them until the finances are resolved.  In one, they refuse to go to the custody expert either – thereby delaying resolution of the entire case if our client won’t capitulate to unreasonable financial demands.

Unfortunately, this happens way to often at an expense not merely measured by dollars.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

For many, the holiday season includes exercising traditional family celebrations.  For separated or divorced parents, the season brings about acrimony regarding which parent celebrates which holiday with the children because each parent wants to include the children in their respective family celebrations.  As one very respected and wise Judge noted “There is nothing wrong with children celebrating the holidays twice.”

Does it really sound ridiculous to enjoy Christmas morning festivities the day before or after Christmas?  Or to have the family holiday dinner on a different night?  I am certain that no child will complain about having a weeklong celebration of the holidays.  After all, it is twice the fun, twice the family and twice the gifts.  More importantly, I think that it is positive reinforcement of family values and beliefs to be reminded twice why we celebrate the holidays that we celebrate.

It is true that a holiday is a special day and that it seems incomplete when you are not spending it with your children.  However, the ultimate celebration of it with the children makes an ordinary day a special day.  This past Thanksgiving my family celebrated Thanksgiving twice.  My sons, husband, and I eagerly awaited for my daughter to come home for Thanksgiving.  When we learned at the very last minute that she would be unable to get home until Friday, I was not happy which is a huge understatement.  She would be missing the family traditional Thanksgiving with the grandparents, aunts, uncles and cousins.  In my mind, the tradition was broken.  At some point on Thanksgiving day, while in a different context but still applicable, I remembered what that wise Judge stated.  So, we celebrated Thanksgiving again on Saturday.  It was a different day but all of the traditions were exercised (again), the joy was shared and the memories created.  The only downside is that turkey, stuffing, mashed potatoes, pecan pie etc. will have to remain out of our diet for quite a while.

I wish you and yours a safe, peaceful and happy holiday season!