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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.

Connect with Robert: Twitter_64 Linkedin

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 financially.  There 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!

Just in case you find yourself rereading the title of this blog over and over thinking you missed something, I promise you read it correctly the first time. Every divorced/divorcing parent should be thankful for their ex (or soon to be ex) spouse. As a divorce attorney, I realize that such a lofty suggestion is a hard feat to accomplish year round, even for parents who are happily married.

Our lives have become complicated and chaotic.  The concepts of “multi-tasking” and “work-life balance” test our will each and every day.  We spend our days rushing through life from what seems to be one obligation after the other.  After people divorce, another layer of complications are thrown into the mix.  The spouse on whom you used to rely upon to have dinner ready at 6:00 p.m. or pick up Johnny from soccer practice is no longer there each day.  These now “single parents” are forced to fill, not only the daily multiple roles they already filled during the marriage (dinner maker, dog walker, homework helper, carpool driver, etc.), but now they are required to take on the daily roles of the other spouse as well.

I realize that because of our overly busy lives, it is easy to lose sight of how much your ex really does for the children you share.  Therefore, I suggest that on Thanksgiving, a holiday specifically dedicated to “thankfulness” for the many blessings in life, you should also be thankful for your ex.  I dare to go as far to say that you should consider sharing this thankfulness with your ex.  While you may not be able to the first Thanksgiving you spend apart, you will find that you may muster up the courage as the years pass and your children grow older.  The old adage “a little goes a long way”, in my experience, is therapeutic for divorced parents trying to co-parent.

To be clear, I am in no way suggesting that this “thankfulness” requires a grandiose gesture – in fact, just the opposite.  Even just a simple “thank you” in a short note or when you are dropping the children off for holiday parenting time with your ex, will work wonders to ease the strain on your relationship.  More importantly, these small gestures remind your children that even though their parents are no longer married that does not mean they should not be thankful for their family.

In the end, one simple important fact remains — without your ex, your children as you know them, would not exist.  Remind your ex the inverse of this is true as well.   You may even find yourself thanking them more than once a year.

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Lauren K. Beaver is an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices in the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, custody, parenting time, support and equitable distribution.  Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

One issue that seems to be coming up more frequently of late is the enrollment of children in extracurricular activities.  It seems that now, more than ever, kids are enrolled in several activities as a standard part of their growth and development.  As a dad to three boys (one of whom is still crawling his way through life and multitasks by drooling, eating and sleeping), my two older boys are enrolled in any combination of activities at once including baseball, hockey, karate, basketball, football, soccer, art, and more – even a class devoted solely to legos!  Gone, for a variety of reasons both positive and negative, are the days when kids really just play outside after school with their friends.

In the divorce world, which parent gets to decide what activities the kids are involved in?  Generally this is an issue of “legal custody” (major decisions), and, as most cases involve “joint legal custody”, both parents will have a say.  This does not mean, however, that both parents are going to be reasonable.

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In many of our cases, extracurricular activities are an issue of dispute between parents for any one of a number of reasons.  These may include but, as always, are not limited to:

Signing up a child for an activity without the other parent’s consent – When this happens, an analysis has to occur to see if the other parent has a history of saying “no” to activities, the reasons for saying “yes or no” (are the reasons reasonable?), and what is ultimately in the child’s best interest, which, as always, is the guiding principle here.  For instance, does the child want to do a particular activity, but dad will only consent to something else?

The activity only falls during one parent’s parenting time – Again, an analysis has to occur regarding the facts surrounding the activity, enrolling the child in the activity (did it deliberately occur to interfere with the other parent’s parenting time?), and the like.  We recently had a case where mom continued to enroll the kids in activities that interfered with dad’s parenting time even though the settlement agreement expressly precluded her from doing so.  Not only was the activity scheduling itself in dispute, but also who would pay for it, which brings me to…

Cost – What is a reasonable cost for an activity?  What was the history for this sort of expense during the marriage?  It is typical for such expenses to increase as a child gets older and has more, and more expensive, activities.

There is no denying that our kids need activities to help them develop their social, physical and emotional skills.  Confidence, problem solving, and simple fun are all benefits to any number of activities.  Unfortunately, however, they all too often become an issue in divorce because of parents’ different views as to what is in the best interests of their child, and costly litigation results.

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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.

 

Earlier this year, we blogged about  of our colleague, Aaron Weems’ post on our firm’s Pennsylvania Family Law Blog, which advised that any recommendations by a parent coordinator would be given a de novo review by a court.  A de novo review means that the Court is taking a completely fresh look at the issue and is not obligated to make or accept the same conclusions, interpretations, or issue the same Order as the prior level did (in this case, the Parent Coordinator); their job is to look at all of the information as though it is brand new to everyone and reach a decision based on the evidence presented.

This week, Aaron posted a piece entitled New Rule: No Parent Coordinators Allowed on that blog.  Aaron advises that the Pennsylvania Supreme Court enacted a new rule that stated:

Only judges may make decisions in child custody cases. Masters and hearing officers may make recommendations to the court. Courts shall not appoint any other individual to make decisions or recommendations or alter a custody order in child custody cases. Any order appointing a parenting coordinator shall be deemed vacated on the date this rule becomes effective (Editor’s Note: May 23, 2013)….

Aaron noted that this ended the quasi-judicial role of parent coordinators.  He also wondered whether this would result in increased enforcement and modification proceedings. 

As I noted when commenting on Aaron’s prior post regarding the de novo review:

Isn’t that was it supposed to happen in NJ? Under the now defunct Parent Coordination Pilot Program which we have blogged on many times in the past, recommendations of a parent coordinator, if accepted, were to immediately become a court order. However, either of both parties objected, either or both could bring the matter to the court for review. That said, it really wasn’t a de novo review because the court would have the recommendation made by the parent coordinator. All too often, thought the judge is not supposed to defer to the parent coordinator, this is exactly what happened, 

So bravo to Pennsylvania for requiring a true de novo review, where judicial authority is not abdicated to a third party and evidence is actually considered. On the other hand, a malevolent party will object to every recommendation, totally vitiating the purpose of a parent coordinator in the first place, and causing the other party to incur fees, first for the parent coordination and then for the inevitable subsequent litigation.

As I blogged previously, New Jersey, while ending the pilot program, does not preclude the appointment of parent coordinators.  If courts defer blindly to the recommendations of parent coordinators, without thoroughly reviewing the issues, will New Jersey be next to totally bar their use? 

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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 practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.