Articles Posted in Other Family Actions

I often get asked questions about the Division of Child Protection & Permanency, more commonly referred to by its old name, DYFS. Specializing in child abuse and welfare defense, it is not uncommon for both individuals and family law attorneys who do not specialize in this area to have questions when the Division becomes involved with a family. One frequent question is whether it is necessary to retain an attorney if the Division has not actually taken parents to court, but rather is involved with the family on what I would refer to as an administrative level.

To answer this question, it is important to understand the role of the Division of Child Protection & Permanency on at least a basic level. The Division is responsible for investigating calls alleging abuse or neglect of a child. These calls are often anonymous and there is no minimal level of proof that triggers an investigation. When the Division gets a call, they must investigate. Investigating the allegation may include coming to the family’s home and assessing for any safety concerns, speaking to both the parent(s) and the child(ren), and speaking to professionals involved with the child(ren) such as the school or daycare and their pediatrician.

Upon completion of its investigation, the Division will make one of four findings: Substantiated, Established, Not Established and Unfounded. A finding of Unfounded means there is not a preponderance of evidence that a child has been abused or neglected and the evidence indicates the child was not harmed or placed at risk of harm. Such a finding will not be reported and remains confidential, and often any Division records regarding the allegation and investigation will be eligible to be expunged after three years (understand this is not always true). A finding of Not Established again means that there is not a preponderance of evidence that a child has been abused or neglected, but some evidence indicates the child was harmed or placed at risk of harm. This finding will not be reported and remains confidential, but the Division’s records may not be expunged and will be permanently maintained by the agency. A finding of Not Established may be appealed, but only to the Appellate Division within 45 days of receipt of the finding. pexels-pixabay-236215-300x198

pexels-tairon-fernandez-450301-300x179To say that 2020 was a challenging year would be an understatement. While it started off with a sense of optimism and relative economic prosperity, the coronavirus, racial unrest, and political rancor gave this world, and this country, in particular, a set of punches to the gut. And while it may have always been under the surface, the events of this year brought into the open an unprecedented level of anger. The devastating impact of the coronavirus upon the economy, i.e. loss of jobs, reduction in incomes, shuddering of businesses, etc. resulted in feelings of anger towards the economic system. The George Floyd tragedy led to calls for racial and social justice which unfortunately turned violent fueled by anger over the police and views that our country as a whole was systemically racist. Add to all of that the 2020 election – politically charged, to say the least. Feelings of anger if not outright hatred dominated the campaign. Whether justified or not, anger was the emotional thread that seemed to have run throughout the year 2020. While anger, as an emotion, may have its place in the human psyche, when that anger becomes one’s primary feeling, it ends up overwhelming and clouding everything else. Reason and rationality. Common sense. Communication and dialogue. They all end up getting lost. That was clearly on display throughout 2020.

As the calendar changes from 2020 to 2021, there are a great many things that we can wish for. Back in the good old days, we might wish for things like a better job, finally getting that bigger house or a fancier car, losing weight or getting in shape, traveling more, or crossing things off your bucket list. However, most people’s wish lists are probably dramatically different this year. Obviously, the top on just about everyone’s list is that there be an end to this coronavirus pandemic and a return to some level of normalcy. This hope is fueled by the rollout of the coronavirus vaccine which our scientific and pharmaceutical community developed in “warp-speed”. Obviously, the end of the coronavirus pandemic is at the top of my wish list as well. However, right below that is another wish for 2021 – the creation of an anger vaccine. I know I am a dreamer but think how much nicer the world would be if the level of anger could somehow be controlled, reduced, or tempered. I know this would be the case when it comes to the handling of divorce matters.

In the almost four decades I have been handling divorce matters, some level of anger permeates many of them. Indeed, some feelings of anger are fully understandable. Your relationship with someone you loved and thought you would spend the rest of your life with has fallen apart. Perhaps that person has been abusive. Perhaps that person has betrayed you. Perhaps that person has somehow changed and it is no longer the person that you had fallen in love with. Maybe you are the one who has changed and want to find a way out of that relationship. You would not be human if you did not feel hurt, guilt, a sense of loss, maybe even a little anger. However, it is when parties to a divorce allow their feelings of anger toward the other person to totally dominate everything else that it becomes a major problem. The level of anger can range from mere loathing to out-and-out hatred. Those feelings of anger can be there the first time I meet a client or they may gradually boil over onto the surface as the strain of the marital litigation takes its toll. How is this manifested? They want to “bury” the other person. They want to “rake them over the coals”. They want them to “pay” for all the suffering and pain that they have caused. They want you as their lawyer to make that happen. They want to get all the money. They want to give no money. They want him or her to have nothing to do with “my” children. They want to win. They want the other person to lose. While sometimes these feelings are made by someone who is simply evil, most of the time it is a product of anger.

I’ve gotten a lot of questions lately about how the Divorce process works. This blog is intended to outline the procedural steps usually taken in a Divorce Litigation. It is not tied to any particular complexity and as it is generic in nature and since litigation is not always one size fits all it is neither exhaustive nor is it intended to cover all the nuances in more complicated litigation.Person in White Long Sleeve Shirt and Black Pants

1) A litigation usually starts with a letter to the opposing spouse advising them that  A Complaint for Divorce is about to be filed and they should retain a lawyer and have them contact the writer. The hope is that the lawyers will be able to discuss The matter early on and save the litigants time and money.

2) A Complaint for Divorce is filed and either served on the opposing spouse or  More frequently acknowledged by the spouse’s lawyer.

pexels-ketut-subiyanto-4308054-300x200People are always asking me if they should divorce. My stock answer is that the decision to divorce is personal and that I am not qualified to make that decision for the client or even make a recommendation. Everybody has a different view of what a good marriage should look at and it is not mine to Judge. I do when the reasons for divorce seem like an argument that will blow over or the parties are older ask the client to think about options and give it a week to let things settle down and the realities of Divorce hit home. I am aware that not all marriages are built to last and that happiness like beauty is in the eyes of the beholder. Having said that I do have some views of my own about when a Divorce makes sense and when it does not. I am not a mental health professional. I am a lawyer who has practiced in this field for most of my career after a near-death experience ( from boredom) as a tax lawyer.

Often the decision to Divorce has been made by your spouse and you really have no option but if the choice is yours here are some things to think about. If you are in a destructive relationship and your spouse is physically or mentally abusing you should get out. Abusive people do not change. It is not your fault. If your spouse cheats on you and you will only reconcile if they don’t stop cheating now and forever and you can not live with a spouse who keeps cheating, get a divorce. My experience shows that once a cheater always a cheater.

If your marriage leaves you so unhappy that each day is drudgery or you find yourself wishing you were dead so the marriage can be over get the divorce. There is life on the other side.

I was recently asked by a high net worth client how they could save legal fees during their proceeding. I understood his concern as the matter is complicated and his wife had very little knowledge of family finances. Accordingly. it would be up to her lawyer to verify assets and advise the client. Half the cost of a divorce is the trial if the matter is not settled. One of the best ways to save money in a divorce proceeding is to avoid the trial and make a reasonable settlement. The other half of the cost of a divorce is pretrial preparation. Most of the pretrial action in a divorce deals with issues of child custody, interim support, and discovery. In this case, since the wife knew nothing about finances until discovery was exchanged, there could be no settlement. There were kids involved and my client was an active parent who wanted to stay involved. His wife opposed this may be out of anger or fear or desire to control the one thing that she did control during the marriage. My client liked bullet points and so I e-mailed him the following bullet points which have been sanitized to protect confidentiality:pexels-karolina-grabowska-4386373-1024x683

1) Put together a series of binders with all your bank and brokerage records over the last five years.

2) Do the same for the last five years of credit card statements.

Teaching and advancing the knowledge of the Bar and the Bench has always been part of the mission of our firm. In furtherance of that mission with Appellant Judge Hany A. Mawla I will present our annual seminar on recent cases in family law in the Fall of 2021. That seminar features The Yudes Family Law Citator, a compendium of every reported case in Family Law since 1949.

In January of 2021 at the Family Law Sections Annual Hot Tips Seminar I am presenting a paper in my role as a past Chair of the section entitled, Domestic Violence: Social Media & other Cyber-Activity, technology has given rises to a whole new platform of cyber harassment and this paper explores the issue and available legal protections. In February 2021 I am teaching an Advanced Course in property valuation for the Institute of Continued Legal Education, the educational arm of the New Jersey Bar Association, entitled, The Haunting Trinity of Vexing Valuation in High Asset Litigation; 1) active v Passive, 2) The Double Count, 3) Trusts. This seminar will explore; with a panel of distinguished experts in business and real estate valuation theory focusing on cutting-edge issues dealing with asset valuation and exclusion.

In the Supreme Court decision of, Dugan v Dugan, our firm established the standard for valuing professional practice. Since then we have been involved in various reported decisions dealing with various aspects of family litigation. Through our educational outreach, we try to share our view of how Family Law has and should develop.

Ahhhh, the Coronavirus pandemic. As I write this blog post, most people are torn between feelings of fatigue and fear. After more than eight months since this pandemic began, most people are understandably weary over the personal, emotional, financial, and societal upheaval that this has caused. To say that this situation has put one’s coping skills to the test would be an understatement. People yearn for a return to some sense of “normalcy”. At the same time, that yearning has been tempered by the predicted “second wave” of this pandemic, with increasing infection rates and the return of lockdowns and restrictions that had been previously eased. At the early stages of this pandemic, I had written a blog post highlighting the significant economic impacts this pandemic was having (i.e. loss of jobs, diminished incomes, reduction in asset values and net worth, increasing debt, etc.) and how all of this was complicating the ability to resolve divorce matters. Between the economic upheaval and the uncertainty over what the future would bring, negotiating settlements was becoming a daunting task.

One of the topics which I had touched upon in my earlier blog post was the extent to which this pandemic might impact a family’s most valuable asset – their home. Prior to the pandemic, the housing market was looking strong. Homes were moving, prices were rising and everyone was looking forward to a robust spring market. However, when the pandemic hit everything, including the housing market, essentially came to a grinding halt. The number of new home listings, as well as mortgage applications, dramatically declined as stay home requirements took hold and the uncertainties made people leery of moving or taking on new financial commitments. While it was too early to tell how this pandemic would impact real estate values, this uncertainty would likely complicate how to approach the disposition of the marital home for purposes of equitable distribution in a divorce.

Jump forward seven months. The pandemic has resulted in a flight of people out of urban areas and choosing to movepexels-pixabay-164522-300x215 to the suburbs or country. Rather than living like sardines in close quarters with other people where the virus could more easily spread, people sought the openness and space. Further, the restrictions and lockdowns evaporated much of the quality of life living in a city would bring. The racial and societal upheaval following the death of George Floyd only exacerbated and reinforced people’s decision to move. The consequence? The housing market throughout much of New Jersey has exploded. Houses are getting snapped up as soon as they hit the market. Bidding wars are prevalent. Home values have risen dramatically. To say that it has become a buyers market would be an understatement. What impact has this had on divorce matters?

The holiday season is upon us and with it comes the joy and at times the tribulation and challenges of family gatherings. This year the holidays might be configured a bit differently than in past years. Uncle Charlie might be participating by Zoom and Aunt Ruth may be sporting her signature mask. This year offers new challenges both because of the pandemic and the Presidential election. Very few of us are neutral regarding issues of: voter fraud, election interference, or the quality and character of candidates. Some of us are Republican, others Depexels-olya-kobruseva-5842243-200x300mocrats or perhaps Independents. We all have an opinion and most of us have voted. In a democracy, our job as citizens is to vote. Once we have voted the outcome of the election is left to the States and if contested to the Courts and the Legislature.

As ordinary citizens, we really have nothing after voting to add to the process. No matter how loud you yell at FOX or CBS nothing Is going to change. It is like a football game you may get caught up in cheering on your team but your cheers have very little to do with the outcome. Biden or Trump will ultimately prevail because of the vote and whatever legal process follows. By Christmas, the die will clearly be irrevocably cast and your support or distress or discourse at family gatherings will not move the needle even a little bit.

Out Republic has been around 244 years and will survive the incumbency of either candidate. Politicians and the Press always say this is the most important election of our time. Maybe they are right this time that is a question to debate just not at the Holiday table.

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.