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Earlier this month, a March, 2017 written opinion by family court judge the Honorable Russell J. Passomano, J.S.C. was approved for publication in the matter of BG-v-LH (FM-07-468-13).   In this published opinion the court addressed issues of296050aba1c021ff4a7e4cab0ed498d2-1-300x200 jurisdiction in a custody and parenting time dispute where one party had relocated with the children out of the state of New Jersey, but the parties had reached an agreement as part of their divorce that future custody disputes would be decided under New Jersey law and in New Jersey courts.  This case contains a detailed analysis that a family court undergoes to resolve jurisdiction issues and the application of the Uniform Child Custody Jurisdiction and Enforcement Act.

In this case, the parties married in 1993 and had three children.   By the time of the litigation the eldest child was an adult living in Israel, while the younger two lived with Plaintiff in Massachusetts.    The middle child was disabled and confined to a wheelchair and unable to speak or use his hands due to cerebral palsy.

In October, 2013 the New Jersey family court entered a final judgment as to custody and parenting time.  That custody judgment contained the defendant’s consent to allow the plaintiff to move with the children to Massachusetts no later than the beginning of the 2014/15 school year.  The judgment also contained the parties’ agreement that until the children were attending college or no longer living at home that the parties would maintain a residence no further apart than the 280 mile distance between the Boston area and the Northern New Jersey area.  The judgment set forth a parenting time schedule for Defendant and a holiday schedule, with the parties sharing use of a specialized van in order to accommodate the middle child’s special needs.  The parties consented to continued jurisdiction in New Jersey, and contained the parties’ irrevocable consent to submit to the jurisdiction of the courts of New Jersey for any future custody and parenting time disputes, as long as one parent resides in New Jersey.

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Only a court can grant a divorce. A court can also decide issues of custody and parenting time, alimony and child support, the distribution of property, as well as other claims incident to the 7df9a9b7f03c042ccdfba2b0252bb070-300x200dissolution of a marriage. However, a court need not decide these issues as the parties themselves have the power to resolve them–and in the vast majority of cases, they do. Often the parties are able to settle their financial and custodial issues whether with or without the assistance of counsel, during the course of an ongoing litigation process. However, in recent years there has been a growing acceptance of dispute resolution methods, whether as an alternative to conventional litigation or as a compliment with respect thereto, to assist parties to resolve their marital issues. Indeed in 2006, Court Rule 5:4-2 was amended so as to require litigants to acknowledge their having been informed of the availability of these alternative and/or complimentary dispute resolution methods, including mediation and arbitration, when they file their initial pleadings. This reflected a commitment by this state’s Supreme Court encouraging use of these alternatives. Then in 2015 R.5:4-2(h) was amended once more to expressly include specific reference to the “collaborative law” process consistent with The New Jersey Family Collaborative Law Act (N.J.S.A 2A:23D-1 through 18) enacted in 2014 as an additional alternative method to conventional litigation.

While I have written blog posts addressing topics pertaining to mediation and arbitration, I admittedly had not given much thought to this process called “Collaborative Law” until it was a topic discussed at a recent seminar I attended. Although statutorily recognized and referenced in the court rules, family collaborative law by its nature can only occur outside of the litigation process. Hence, the family collaborative law process is distinct from other dispute resolution mechanisms because the parties must expressly agree and intend to resolve their disputes without litigation. Instead, each party, represented by his or her own collaborative law attorney, meet together with the other party to the dispute, that party’s collaborative law attorney, and as needed one or more non-party participants who are not attorneys but are professionals in their fields such as certified financial planners, certified public accountants, licensed clinical social workers, psychiatrists, psychologists, licensed professional counselors and marriage and family therapists. All participants must understand and agree that the process will terminate if either party commences a court proceeding related to the subject matter to be addressed through the family collaborative process other than to seek incorporation of a settlement agreement reached into a final judgment. Participation in the family collaborative law process can only be by way of an agreement voluntarily entered into, and communications made during the process are deemed confidential and privileged from disclosure.

Proponents of the family collaborative law process tout its emotional and financial benefits as opposed to traditional court litigation. They note that traditional litigation by its very nature lends itself to an adversarial approach in which parties generally devolve into warring camps where they fight out disputed issues either amongst each other or through the courts, fueling feelings of anger, hostility and mistrust. On the other hand, proponents claim that the collaborative law process is designed to foster communication, cooperation and trust with the goal of working towards a mutually created resolution of the parties’ marital issues. While each party’s lawyer provides them advice and advocates their positions, they do so collaboratively with the goal of reaching a settlement of the matter. “Divorce Coaches” maybe enlisted to assist the parties in dealing with the emotional issues inherent in these types of cases and to foster effective communication with each other. While asserting that traditional litigation is controlled by time frames and guidelines established by court rules or the judge, its proponents claim that in collaborative law it is the parties who control the process and time needed to come to a resolution. Proponents contend that traditional litigation involves a costly and time consuming discovery process for the exchange of information while in collaborative law the parties must commit themselves to transparency and cooperation in exchanging information deemed necessary by the participants to the process. Proponents also note that the confidentiality of the collaborative law process lends itself to facilitate a more free, frank and open line of communication which not only fosters settlement, but improves relationships going forward for the benefit of the entire family post-divorce.

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Summer is the time for: sea breezes, mountain air, trips to the museums with the kids in tow, and . . . domestic violence.  Statistically, domestic violence increases during summer months.  This rise is probably because there are a number of holidays in the summer months, and people take time off. There is something to be said about the old adage about idle hand and the devil. Here are some pointers about New Jersey’s approach to domestic violence.

Domestic Violence is a civil not criminal proceeding in which certain criminal acts perpetrated on a protected class of adult familiars results in the arrest and the entry of civil restraints including, no contact with the victim and removal from the home.

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file701299029783-300x255In Sacklow v. Betts, a case of first impression,  Hon. Marcia Silva, J.S.C. a Chancery Division judge in Middlesex County, decided that the “best interest of the child” standard applies when a considering whether to allow a transgender child to change his or her legal name.

Janet Sacklow, the child’s mother in this case, petitioned the Chancery Division to change the name of the parties’ 16 year old transgender child from Veronica to Trevor, arguing that this was in the child’s best interest because her child is transgender, identifies as a male, and has been undergoing treatment for gender dysphoria.  Richard Betts, the child’s father, initially opposed the name change, but after cross examining the child, he was willing to consent to changing Veronica’s name to Trevor even though he still nonetheless expressed his concern about whether this name change was in the best interest of the child.

Judge Silva first discussed what standard a court should use when considering a request to change the name of a transgender child, and decided that the “best interest of the child” standard is the applicable standard.   The factors listed by Judge Silva that should be applicable are as follows:

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This week the Northern Hemisphere celebrated the Summer Solstice which marks the longest day of the year and the official start of the summer season. The month of June also brings with it the end of the school here in New Jersey and the many high school graduations. In New Jersey, approximately 70% of those graduates are enrolled to start college in the months ahead. For most families, once the euphoria of graduation wears off and celebratory balloons begin to deflate, it does not take long for the anxiety related the costs, both emotional and mainly financial, associated with a child[en]’s attendance at college to set in. The stress associated with the process can also be magnified in situations where the parties are divorced. Continue reading

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On June 5, 2017 the Appellate Division approved for publication its opinion in the matter of TMS-v-WCP, A-4900-15T2, which involves reinstatement of  a final domestic violence restraining

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order.

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For attorneys and litigants alike, the legal fees attendant to the handling of a divorce matter are an important consideration. When it comes to legal fees, time is money. Because our Rules of Court prohibit the handling of divorce cases on a contingent fee basis, legal services are billed based upon the actual time spent working on the case at an hourly rate and charged against an initial retainer amount to be paid by the client. When prospective client asks how much in legal fees the divorce will cost, I explain that there are too many variables to give a precise estimate, including the number and complexity of the issues involved, the level to which those issues are contested, the reasonableness of the other spouse and/or attorney in regards to their positions, cooperation and/or course of conduct during the process, and the extent litigation or court involvement is needed to resolve those issues. Continue reading

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Summer is upon us. Summer brings with it holidays, family time, holiday preparations and expectations, and some stress brought on by kids being home for the summer.  The reality is thatcohdrankntmbstn7-300x256 families that have problems often argue and fight at holiday time. The summer is unkind to rocky relationships.    Continue reading

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In the published opinion in the matter of Division of Child Protection and Permanency v. T.U.B. & J.E.C., (A-2565-15T2) the trial court terminated the Defendant’s parental rights in a Title 30 DSC2330-300x200guardianship case based upon the admission of hearsay statements by children about corroborated allegations of abuse or neglect pursuant to N.J.S.A. 9:6-8.46(a)(4). The hearsay statements made by the children involved allegations of sexual abuse that were later in part recanted by one of the non-testifying child declarants. Continue reading

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We have all now probably seen or heard the public service announcement of “If you see something, say something.” which is usually in the context of witnessing suspicious package or person. On May 17, 2017 the Supreme Court of New Jersey, in affirming the ruling the of the Appellate Division in the case of New Jersey Division of Child Protection and Permanency v. J.L.G  and In the Matter of B.G., M.A and M.G., (A-1746-13T2), sent a clear message to individuals that witnessing a domestic partner abuse a child and doing nothing to stop that abuse can lead to a finding that the witness also abused the child. Continue reading