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As an attorney who practices family law, I can attest to how painful battles for custody over children are when couples separate.   Even more painful are disputes between adoptive and biological14688d11364778879628f618a4504f40-300x169 parents fighting over custody of a baby.   Among the most famous and newsworthy of such disputes was the New Jersey case of “Baby M”, which was decided ultimately by the Supreme Court of New Jersey in 1988 in In re Baby M,109 N.J. 396 (1988).   In that case, a couple hired a surrogate mother to give birth to their child, after which the surrogate mother claimed that the surrogacy contract was invalid and that her parental rights were improperly terminated, and the child improperly adopted by the biological father’s wife.   The Supreme Court in In re Baby M, invalidated the surrogacy contract and restored the surrogate mother’s biological rights.   This case was splayed out in the news at the time, but was ultimately still a dispute between biological parents.

It is still heartbreaking when there are disputes between biological and adoptive parents over custody of a child.  A recent unpublished decision of the Appellate Division in the case of In re Adoption of a Child by R.C.W. and S.M.W., A-2907-17 (App. Div. Aug. 7, 2018) has recently been in the news in New Jersey, though not with the same attention as the “Baby M” surrogacy case.   In this case, the biological mother of “Baby J” sought to set aside the adoption of her biological child by its adoptive parents.  The Appellate Division addressed the heartache head-on, writing “Few cases have so much potential for calamity.  The adopting parents could lose their only child, the child they have nurtured since birth, and in consequence suffer a lifetime of emotional pain and heartbreak. The birth mother could see her decision to surrender her child upheld, have her parental rights terminated, and in consequences suffer a lifetime of regret and sorrow.  The child could be abruptly removed from the only parents and home it has ever known, placed in the hands of a virtual stranger, and in consequence suffer permanent emotional damage.”  The Court’s statement acknowledges the weight and impact of the decision before it.

In this case, the 19 year old birth mother “Mya” was a full-time college student, with a part-time job, and living with her mother.  She had terminated two prior pregnancies at the request of her mother, and indicated that she was surprised by this pregnancy as she used birth control.  She did not tell her mother other family members about this pregnancy, fearing that she would lose the support of her mother.   Moreover, after she and her mother were evicted from their apartment and she came to live with her sister and her sister’s family, Mya did not feel that she would be financially able to care for the child, and expressed that she needed to finish college.  She told only a new boyfriend and a teacher/mentor about the pregnancy.

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In this Appellate Division case entitled New Jersey Division of Child Protection and Permanency v. S.K., A-2734-15 (App.Div. August 31, 2018), the defendant argues the Family Part Judge file000388004075-200x300improperly drew an adverse inference against him when he invoked his right against self-incrimination under the Fifth Amendment to the United States Constitution and this New Jersey’s evidence rule, N.J.R.E. 503, in response to DCPP’s (the “Division”) request to call him as a witness in the fact-finding hearing. This issue has not been addressed in a published opinion by any court in New Jersey. The Appellate Division held that a Family Part Judge may not draw an adverse inference of culpability against a defendant who invokes his right against self-incrimination to refuse to testify at a Title 9 fact-finding hearing.

In this case, after an interview with the Division caseworker, the defendant’s two daughters, Jane and Kate, were taken to the police station for interviews as a result of Jane claiming that the defendant abused her when she was younger. Jane told the detective that the sexual abuse began when she was six years old and continued until she was approximately eleven. When the detective asked her if she could tell him what happened, she answered: “No. It’s . . . I don’t actually remember, I have[a] bad memory.” She also claimed she could not remember the last time he molested her.  Through the use of drawings of male and female bodies and pointed to specific body parts to ask Jane where the defendant had touched her, Jane told the police that the defendant touched specific body parts with “his hand and dick.”She claimed he kissed her lips while she was laying down, and touched her “boobs”with his hand, and her vagina with his “dick and hand.” With respect to her vagina, she claimed he touched her “on the inside.” She estimated the molestation occurred less than 20 times.

The detective also interviewed Kate, who at first claimed that Jane did not tell her about the abuse but after the detective pressed, Kate claimed that Jane may have told her something a while ago but she could not remember.

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A frequent post-divorce concern or criticism often heard from the parent who has primary residential custody of child is that their former partner does not exercise their parenting time and thatvisitation-300x200 the failure of their partner to keep to the schedule has negative monetary and lifestyle implications. I have always viewed a failure to exercise parenting time as a matter that needed to be addressed economically.   Many matrimonial attorneys and judges, however, relying on a 2006 case encaptioned J.S. v. L.S, 389 N.J. Super. 200 (App.Div. 2006), have opined that the failure a parent to exercise parenting time did not give rise to a right for economic relief. Continue reading

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The Jolie/Pitt “Fight Club” continues. I previously blogged about the Jolie/Pitt divorce in “Fight Club: What You Can Learn From Angelina Jolie’s and Brad Pitt’s Long Term Relationship With Short Marriage“.  This week the media was abuzz with news of Angelina Jolie’s claims that Brad Pitt is not paying “meaningful child support,” which begs the question, what is “meaningful child5d984e7b33cffbf6bc1f5cd9b12b51d5-300x200 support”? Clearly, Jolie and Pitt are not your average parents. They both earn a significant amount of money. And, even though Jolie may very well be able to support their children on her income alone, that does not negate Pitt’s obligation to support the children.  I have blogged before about New Jersey child support when the parties earn more than the income stated in the Child Support Guidelines. Continue reading

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A few weeks ago The New York Times published an article about a divorce in the United Kingdom caught my attention.  The article was called  “Divorce on Demand? In the U.K., It’s Not Quite That Simple“.   Does the UK have “divorce on demand”?  What even is divorce “on demand”?   Can spouses in New Jersey get a “divorce on demand”? Continue reading

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Earlier this year, I wrote a blog post entitled Support Security: Real Life Considerations. In it I discussed the developed case law and statutes dealing with affording dependent ex-spouses (and children) some level of economic security and protection in the event of the death of a payor – spouse, including in the form of life insurance, trusts or other means. While the legal authority of a Court to require same is now well established, it is an issue which has complexities, both practical and equitable, in regards to the determination of the nature, level and extent of same, depending upon the facts and circumstances in a given case. However, often forgotten is another, if perhaps even more valuable, form of “security” which may be available to ex-spouses (and children) in the event of the death of a former spouse – Social Security Survivor Benefits.

social-security-card-300x202Last year my partner wrote a blog post in which he discussed the fact that a divorced spouse may be entitled to elect to receive retirement benefits under Social Security based upon the former spouse’s work history, rather than their own as long as certain conditions were met, namely (1) the marriage lasted ten (10) years or longer (measured from the date of a valid marriage to the date the divorce is final); (2) you are unmarried; (3) you are age 62 or older; (4) your ex-spouse is entitled to Social Security or disability benefits, and the benefit you are entitled to receive based upon your own work is less than the benefit you would receive based upon the ex-spouse’s work. Further, if the ex-spouse had not applied for retirement benefits, but could qualify for them, one would only be eligible to receive such retirement benefits if the parties were divorced for at least two (2) years. These Social Security retirement benefits are not subject to equitable distribution. Since alimony and spousal support are often subject to modification, if not termination, upon the payor – spouse’s retirement, such benefits are an important and valuable consideration which are often overlooked. Curiously, the right to receive these benefits is not predicated upon the existence of such support obligations, or even actual dependency, as long as the requirements noted above are met.

While most people focus on retirement benefits when we talk about Social Security, there is another form of benefits available to divorced spouses that is often ignored and which may be even more valuable – survivor benefits. Under Social Security, if a worker spouse dies, whether before or after reaching retirement, that person’s spouse and/or minor children may be eligible to receive survivor benefits as long as certain criteria were met, i.e. work credits, age, etc. Those eligible to receive monthly survivor benefits include (1) a widow or widower age 60 or older (age 50 or older if disabled); (2) a widow or widower at any age who is caring for the deceased’s child who is under the age of 16 or disabled and receiving benefits on their record; (3) an unmarried child of the deceased who is younger than age 18 (or up to age 19 if he or she is a full-time student in an elementary or secondary school) or age 18 or older with a disability that began before age 22. Additionally, a divorced spouse of a worker who dies may be eligible to receive the same benefits as a widow or a widower provided that the marriage lasted ten (10) years or more. If the divorced spouse is caring for the deceased’s ex-spouse’s child younger than age 16, the ten (10) year rule does not apply and he or she would be able to receive survivor benefits until the child reaches 16 or is no longer disabled. Surprisingly, the divorced non-worker’s spouse’s remarriage after reaching age 60 (50 if disabled) will not affect eligibility for survivor benefits. However, if the remarriage occurred before age 50, the former divorced spouse would not qualify for survivor benefits. Compare this to the fact that by statute remarriage at any age would terminate a right to receive alimony. Further, the fact that the worker spouse may have been remarried at the time of his death would not affect the ability of a divorced spouse who claimed survivor benefits under Social Security. Indeed, multiple spouses, current or former, may be eligible for such benefits as long as they meet the requisite criteria.

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Words matter. Cliche? Perhaps it is.

This is a week that illustrates how words have power.  Remember when then President Clinton responded to a question with the infamous line about the meaning of the word “is”? Presidential words-300x225impeachment dangled on a two letter word which most of us took for granted. President Trump attended a “summit” with Vladimir Putin in Helsinki this week.  That’s if it was a “summit”.  Some said not to use that word. Continue reading

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Mass shootings in schools, colleges, movie theaters, churches, concerts and other public spaces have been in the news regularly, leading to disputes over gun control and issues involving4168c94f1d5117faacc4fa82b69915a3-300x200

the Second Amendment also in the news, while politicians grapple with how to respond.   It is interesting that after a mass shooting, when those who knew the shooter are interviewed, they commonly indicate that there was no way to predict that the shooter would engage in such violence.   A large portion of mass shooters, however, appear to have in their past abused and/or committed acts of violence towards women in their lives. Continue reading

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Kate Spade’s recent suicide has been the subject of widespread speculation in the news. How could it be that this attractive and successful icon of fashion would take her own life? After all she soldfile4801310649783-300x249 her business for billions. She was attractive, popular in the media and in the “right” social circles. She had everything to live for including a 13 year old daughter with whom she had a loving relationship. Continue reading

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One of the many rights litigants have is the right to be represented by counsel of their own choosing. Simple, right? Well, not really. An attorney of your choosing could be disqualified from file0001869482997-225x300representing you if that attorney had participated in the matter prior to your representation and your adversary does not consent to the attorney representing you.  Additionally, an attorney could be disqualified from representing you if the attorney is likely to be a witness in the matter, under certain circumstances pursuant the Rules of Professional Conduct (“RPC”).  Whether the RPC prevents an individual from being represented by an attorney of their own choosing is a fact sensitive matter. Continue reading