Articles Posted in Other Family Actions

In the published Appellate Division opinion in NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. P.O. and M.C.D. A-1871-16, (App. Div.  Oct. 30, 2018), the AppellateIMG_1930-1-300x225 Division addressed the 2011 emergency removal of two children, ages 7 and 2, from their undocumented immigrant parents. While the two children remained in resource homes, the parents were removed from the United States. The mother was prohibited from returning to the U.S. for 10 years and the father was prohibited from returning to the U.S. for 20 years. In 2013, the parents appeared by telephone, represented by counsel, and entered into an identified voluntary surrender of their parental rights to a family they had identified to the Division as a potential resource placement. Both of the parents confirmed that in the event the family whom they identified for resource placement did not adopt their children, then  their parental rights would be reinstated and litigation would be reopened. Ten months later, the trial court ruled against moving the children to the family identified as a potential resource placement. Without notice to the parents, the trial court vacated the identified voluntary surrenders, reinstated the biological parents’ parental rights and reopened the guardianship litigation. Thereafter, the father was provided with services needed for reunification with the children.  The mother could not be provided with reunification services because she could not be located.  She failed to keep in contact with the Division after leaving the U.S.   She ultimately resumed living with the children’s father, but both parents were inconsistent in maintaining contact with the Division.

Neither of the children speak Spanish. One of the children had a language disorder that would make it difficult for him to learn Spanish if he were sent to live with his parents. Additionally, the children had bonded with the resource parents and wanted to be adopted by them. The trial court found that termination of parental rights was in the best interest of the children.

The parents appealed the trial court’s decision, arguing that their due process rights were violated because they did not receive notice of the pending dissolution of the identified surrender and because many of the hearings that were before the termination trial and were not held on the record. Even though the parties did not raise these arguments in the trial court, the Appellate Division agreed that the parties should have been notified before the identified surrender judgment was vacated. More importantly, the Appellate Division stated that every proceeding should have been placed on the record even when the parents were in agreement with the provisions of the order being entered. All Children In Court proceedings resulting in orders should be on the record. Particularly when the parents, who have not unconditionally abandoned their rights, are not parties to the proceedings. Nevertheless, the failure to do so in this case was not fatal because the parents rights were restored and they were parties to a full trial on the merits.

In my last blog post I summarized some of the recent Court Rule amendments that went into effect this September. While there were only a limited number of changes in the Part V Rules affectingRule-Book-225x300 Family Part practice, I noted that there were amendments made in other sections of the Rules which had a direct or indirect impact upon Family Part practice in some fashion. In this blog post, I will discuss one of the more significant changes – those relating to actions to change the name of an adult and/or minor under Rule 4:72.

Several years back I wrote a blog post “What’s In A Name” in which I highlighted some of the practical and procedural considerations involved in effectuating a name change incident to a divorce. While at common law, any adult or emancipated person was at liberty to adopt any name as his or her legal name except for fraudulent or criminal purposes without resort to any court, if someone wished to change their name, that person was required to institute an action in “Superior Court” under N.J.S.A. 2A:52-1, et seq. by the filing of a verified complaint accompanied by a sworn affidavit. Court Rule R.4:72-1, et seq. further detailed the procedures to be followed in actions for a name change. However, neither the statute nor the rule specified which division or part of the “Superior Court” such name change actions were to be filed and heard, except for actions seeking a name change for a minor who was the subject of a pending family action or one concluded in the preceding three years, and in which case they were to be transferred to the Family Part in the vicinage in which that family action was pending or was concluded.

Consistent with the theme of most of the recent Rule amendments to delineate and clarify which Division or Part certain types of actions should be filed and heard, R. 4:72-1, et seq. has been substantially amended to address where such name change actions should be filed and heard. Further, the changes to this Rule also address the procedures relating to requests for a change of name incident to divorce which were silent in both N.J.S.A. 2A:52-1 and the prior versions of R. 4:72. Finally, the procedures governing the name change of minors were substantially modified as well.

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.”

In 2004, Massachusetts became the first state in the United States to recognize same sex marriage.  Numerous states thus enact differing laws regarding the ability of same sex couples to marry infile000224065590-300x200 their states, with numerous states  passing laws to ban same sex marriage, and various states over the years, voting to allow same sex marriage.  Some states began to allow same sex couples to enter into “civil unions”.  New Jersey did so in 2006.  In 2012, Governor Chris Christie vetoed a potential law in New Jersey that would have allowed same sex marriage. Continue reading ›

In modern society, it is common for unmarried couples to live together without being married.  When an unmarried cohabiting couple separates, however, the rights to equitable distribution and6a3146dbdf81597192112ac03d77c7e4-300x200 alimony does not exist.  No matter how long an unmarried couple has lived together, they do not have the legal rights and protection that divorcing couples enjoy.  Cohabitating, unmarried couples also do not enjoy the rights and protections that married couples having during their marriage, such as filing joint tax returns; receiving distributions from estates free of estate tax; receiving survivor’s benefits from retirement plans and Social Security; obtaining “family” health insurance, dental insurance, and other employment benefits; and automatically sharing in his/her partner’s property in the event he or she dies without a will. Continue reading ›

 

For the third time since 2012, the New Jersey lawmakers have passed legislation that would allow persons to enter into gestational carrier agreements; namely for the intended parents to enter into a contract with a woman 21 years of age or older to become pregnant by assisted reproductive technology without the use of her own egg, and to surrender custody of the child to the intended parent immediately upon birth, and considered neither an adoption nor termination of parental rights, as long as the requirements of the statute are strictly adhered to. While two prior legislative attempts were vetoed by then Gov. Christie, it is expected that this Baby-M-movie-300x238current legislation (S482) will be signed by Gov. Murphy soon and become law. Many people continue to refer to the agreements covered by the statute as “surrogacy contracts”, and that they would in effect overturn the Supreme Court ruling in Matter of Baby M, 109 N.J. 396 (1988) which deemed such surrogacy contracts invalid. Continue reading ›

This past week the New Jersey Appellate Division issued an unpublished opinion in the case of V.J.C vs. M.V. (docket no. A-4587-15T3).  In this case the defendant appealed from a final d744f80a269bdfa75c34d7830ed52c13-300x200restraining order (FRO) entered by the trial court in favor of plaintiff pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The defendant claimed that the trial court abused its discretion in denying his request for a short adjournment of the April 14, 2016 hearing until his attorney could arrive at the courthouse. The series of events that led to the defendant being in court that day are as follows.  Continue reading ›

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 ›

image1-232x300On Friday, billions of people around the world observed the Christian Holy Day of Good Friday. It marks the day that the Trial of Jesus of Nazareth occurred and when he was sentenced to death for failing to deny that he believed himself to be the Son of God. Christians believe that Jesus willingly suffered and died by crucifixion as the ultimate sacrifice for the sins of humanity (1 John 1:10). Easter Sunday celebrates Jesus rising from the dead, an event which is referred to as the Resurrection. Set in the springtime every year and often close to the Jewish Holy Day of Passover, Easter symbolizes a time of rebirth and renewal. Holy Thursday, which occurred yesterday, marks the event of the Last Supper of Jesus and his Apostles, during which the group were celebrating a Passover Seder when Jesus informed the group that he would be betrayed by his followers. Continue reading ›

The Violence Against Women Act (VAWA), 42 U.S.C. § 13701 et seq., is a United States federal law that was originally passed in 1994 and was reauthorized in 2013 in which the spouses and children and parents of United States citizens or lawful permanent residents may self-petition to obtain lawful permanent residency in the United States. The Immigration and Nationality Act (INA) is the law that governs immigration in the United States. The VAWA provisions relating to immigration are codified in section 204(a) of the INA. Rules published in the Federal Register explain the eligibility requirements and procedures for filing a self-petition under the VAWA provisions. People who may apply include: (1) a spouse of a U.S. citizen or lawful permanent resident; (2) a child of U.S. citizen or lawful permanent resident; (3) a spouse of U.S. citizen or lawful permanent resident who’s child has been battered or subjected to extreme cruelty for the reason bANGEL-13-144x300eing that a parent files for self-petition based on abuse of the child but both parent and child benefit; and (4) parent of a U.S. citizen . It is important to note that, despite its title, the VAWA is applicable to both men and women although spouses of undocumented foreign nationals cannot self-petition. Continue reading ›