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While the U.S. Supreme Court has declared that same sex marriage is now legal all across the country, the states are still addressing with the newly accepted concept of a family in other contexts aslimo-suv-wreck-300x225 well.  This is demonstrated in the recent published opinion of the Appellate Division in Moreland v. Parks, A-4754-16, which was decided on August 17, 2018.   In this matter, Valerie Benning and I’Asia Moreland were a same sex couple.  Ms. Benning was living with Ms. Moreland and her two children, along with Ms. Benning’s godson.  After leaving a Disney on Ice show at the Sun Bank Arts Center in Trenton, the couple witnessed a pick-up truck hit Ms. Moreland’s two year old daughter, I’Maya, and kill her.    Ms. Moreland and Ms. Benning were not married.   Ms. Benning and Ms. Moreland filed a civil suit, which included a count by Ms. Benning for bystander negligent infliction of emotional distress.  The trial court dismissed Ms. Benning’s claim for bystander negligent infliction of emotional distress on the basis that she did not present enough evidence of an “intimate familial relationship” with the the child to bring a claim under Portee v. Jaffee, 84 N.J. 88 (1980).

Ms. Benning was not married to Ms. Moreland, who was I’Maya’s mother.  Ms. Benning was not biologically related to I’Maya, nor did she have custodial rights.  She began dating Ms. Moreland in 2007 and began to live with Ms. Moreland and her children in 2008.   Within a few months, both of Ms. Moreland’s children began referring to Ms. Benning as “Mom”.   I’Maya was killed in 2009.  Ms. Benning and Ms. Moreland became engaged in 2011 and they married in 2014.   A psychologist who evaluated Ms. Moreland’s son, I’Zhir, noted that he considered Ms. Benning and her godson members of his family, and that he felt safest when with his two mothers and his grandmother.   Two year old I’Maya was holding Ms. Benning’s hand in January, 2009 to cross the street when she was struck by the truck and killed.  Ms. Benning’s godson’s legs and ankles were broken in the accident as well.   In the ambulance after the incident, Ms. Benning was able to describe to the paramedics I’Maya’s medical history. I’Zhir told hospital staff that he had two mothers.   Ms. Benning was so distraught when told of I’Maya’s death that the hospital had to put her in restraints.  Benning helped pay for I’Maya’s funeral and borrowed money from her family to help pay for it.

The trial court referred to Ms. Benning and Ms. Moreland as lovers, but found that the case of Portee v. Jaffee requires a showing of an intimate family relationship, not merely an intimate relationship.   The trial judge rejected the contention that Ms. Benning was a psychological parent to I’Maya.  The trial judge noted that in the case of Dunphy v. Gregor, 136 N.J. 99 (1994), a decedent’s fiance was permitted to bring a claim for bystander negligent infliction of emotional distress.  However, the trial judge distinguished this matter because Ms. Moreland and Ms. Benning had not been engaged at the time of the I’Maya’s death, and he found no evidence of a permanent bond between them or one that was “deep, lasting and genuinely intimate.”

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The rumor is we did have a summer this year. Besides what seemed like a few nice days, what passed for summer flew by like a flash. Suddenly it was Labor Day, which for most people signals theRule-Book-225x300 arrival of Fall. What else arrives each Fall? The annual Amendments that have been approved by our Supreme Court to the Rules Governing the Courts of the State of New Jersey arrive. Historically, any significant changes in the Part V Rules affecting Family Part practice are made every other year. This was an off-cycle year, meaning there was a paucity of amendments to the Family Part Rules this year. However, there were a number of Rule amendments in other sections of the Rules that either have a direct impact upon Family Part practice in some fashion, or may have some general application to aspects of this practice. I will summarize and discuss these Amendments over the course of several blog posts.

Besides an addition to Rule 5:22 involving juvenile matters, the only actual Amendment in Part V dealing with Family Part Practice is in regards to Rule5:1-2.  Rule 5:1-2(a) generally defines what types of “Family Actions” are to be filed and heard in the Chancery Division, Family Part. The prior version of this Rule, after delineating certain specific types of actions, included not once but twice catch-all language to include “all civil actions in which the principal claim”, as well as “all other civil actions and proceedings” which were “unique to and arising out of a family or family-type relationship”. Very broad language indeed. While the recent Amendments to this Rule may seem subtle, they represent an attempt to better define what types of Family Actions are cognizable in the Family Part. While continuing to include reference “all actions in which the principal claim is unique to and arises out of a family or family-type relationship”, the recent Amendment deleted reference to the term “civil” actions, and deleted the catch-all “all other civil actions and proceedings” language at the conclusion of the Rule. Palimony actions were added to those which should be filed and heard in the Family Part. Most importantly while the amended rule continues to include reference that “such action shall include all actions and proceedings referenced in Chapters II and III of Part V”, the language “unless otherwise provided in Rule 4:3-1(a)(4)” was added. What does this mean? This language was added for the purpose of cross-referencing those actions excepted from Family Part jurisdiction in light of the contemporaneous adoption of Rule 4:3-1(a)(4).

Please remember that the Part IV Rules are intended to govern Civil Actions generally, and which includes most Family Actions unless otherwise specifically addressed in the Part V Rules. Before turning our attention to Rule 4:3-1(a)(4), Rule 4:3-1(a) delineates generally which Court or Division a certain type of action should be instituted. Rule 4:3-1(a)(3) delineated the types of actions which were to be instituted in the Chancery Division, Family Part. However, it is curious to note that the language of this Rule was also subtlety amended to track some of the language changes to Rule 5:1-2(a), i.e. deleting the reference to “civil” and adding a reference to palimony actions, yet curiously continued to include the catch-all “all other actions and proceedings unique to and arising out of a family or family-type relationship” although deleted from Rule 5:1-2. What this means or whether it was an oversight or intentional is unclear. However, the language of the Rule referencing actions cognizable in the Family Part to “include all actions and proceedings referenced in Part V of these rules” is now followed by the limiting language “unless otherwise provided in sub-paragraphs (a)(4) of this rule”, referring in this instance to the newly enacted Rule 4:3-1(a)(4). This new rule sub-paragraph specifically refers to variety of actions named therein which may be associated with Family Actions, but which constitute exceptions from the normal Family Part practice. Said another way, while they may generally arise out of a family or family-type relationship, Rule 4:3-1(a)(4) attempts to delineate which Division or Part certain types of actions should be filed and heard, and not necessarily in the Family Part. Rule 4:3-1(a)(4) identifies nine (9) such types of actions. I will briefly comment on each of them.

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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