Articles Posted in Removal

We all know about the political civil war which has been taking place in Washington D.C. However, that is a mere skirmish when considering the thermonuclear battle which is about to engulf the Earth – the impending divorce between Kanye West and Kim Kardashian! There is nothing better than a good old fashioned celebrity divorce to take people’s minds off of their mundane troubles of the day. We can see it now. Banners blasting across the internet. Headlines across the covers of People Magazine or the National Enquirer (does it still exist?) Page Six in the New York Post. Whole episodes of TMZ or Access Hollywood. Who should get custody of the children? Is Kim unfit? Is Kanye crackers? Was there a prenup, and if not, how will they divide the millions each are worth? However, there was one recent story about this once loving couple posted on the internet which actually piqued my interest. Apparently, Kim and Kanye live in a mega-mansion located in Calabasas, California. While many divorcing couples share a home which may need to be disposed of in some fashion during the divorce, it was the headline of this article that I found most fascinating – “Kim owns the land and Kanye owns the house?”.

The discussion that followed focused on how this could be, and what the impact may be in the disposition of this property upon their divorce. Assuming this is true, how might this be possible? Could it be a land lease situation – think a trailer park on steroids – where someone owns the physical residence structure who then pays rent or dues to the owner of the land itself for the privilege of placing your residence on it? Does Kanye own the track of land upon which the residence is situated but Kim owns all of the adjoining properties? Did Kim pay for the land and Kanye pay for the construction of the house itself? Perhaps as is common in most celebrity situations, some type of trusts were created to hold certain property or assets, and which afford different rights or entitlements to the holders or beneficiaries thereof. Regardless of how Kim and Kanye’s Calabasas home is held, the real question is whether it truly makes a difference when it comes to the disposition of the property in a divorce.

When it comes to California, anything is possible. California is what is known as a “community property” state. As such, it has its own set of standards as to what would constitute property divisible upon divorce, and who would be entitled to what. Who may “own” or have title to a given property, or to the form in which it may be held, might make a difference in how that property is disposed of in the event of divorce under California law. However, things may be considerably different if Kim and Kanye were getting a divorce in New Jersey. When it comes to the division of assets in a divorce, New Jersey operates by what is referred to as “equitable distribution”. If an asset or property is acquired during the course of a marriage, usually defined as being between the date of marriage and the date a complaint for divorce is filed, that property is generally considered to be a marital asset and thereby subject to equitable distribution in the event of divorce. Exceptions would include gifts or inheritances a party may receive from a third party, or assets acquired in the name of one party using “premarital” funds of that party. Assuming these exceptions don’t apply, the name under which the property is held, nor in what form, generally does not matter. Nor does it matter who paid for it. The inquiry is rather simple. Was it acquired during the marriage? Were marital assets or funds used to acquire it? If in Kim and Kanye’s case, the answer was yes, then under New Jersey law their Calabasas mega-mansion would be deemed a marital asset. It would be subject to equitable distribution. Please note that I use the term “equitable”, and not “equal”. This is not mere semantics. Once it has been established what property and assets constitute the marital estate, there are a myriad of factors under NJSA 2A:34-23.1 which a court must consider in order to effectuate “equitable” distribution of marital property. Who paid for what. Custodial obligations. Relative contributions. Prior agreements. These and many other factors may impact what distribution of marital assets would be “equitable”.

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

In enacting New Jersey statute, N.J.S.A. 9:2-2, the Legislature established a mechanism and25ebc4898eb30bc0cd7290a9cc18a32e-300x200 procedure for a divorced or unmarried parent when seeking to move with one’s children outside the state of New Jersey.  The statute provides:

“When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.”

The Courts in New Jersey have on several occasions interpreted this statute to address the standard for the family courts to apply when one parent wants to move out of New Jersey with the parties’ children, and the other parent objects to the children making such a move.   We addressed this standard in a previous blog with regard to parents having a shared 50/50 custodial arrangement based on the decision of the Appellate Division in Bisbing v. Bisbing, 445 N.J. Super. 207 (App.Div. 207), affirmed in part, modified, 230 N.J. 309  (2017).  In another blog, we addressed the standard for relocation based on the factors outlined in Baures v. Lewis, 167 N.J. 91 (2001).  In those cases,  before the children were removed from New Jersey, an application was made by the parent seeking to move.  Does that have to be the procedure?  Can the parent make that application after the move?  Is it the obligation of the objecting parent to make an application objecting to the children’s removal from New Jersey?

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.

TANGEL 13he jurisdiction of the Family Part of the New Jersey Superior Court to make orders determining custody is based upon the common law doctrine of parens patriae, which imposes upon the court an affirmative duty to protect the best interests of minor children. The members the New Jersey Judiciary that serve our State in making these decisions will tell you that these decisions are some of the most difficult they have faced in their professional careers and also some of the most rewarding. On December 15, 2015, the Supreme Court of New Jersey issued an opinion modifying and affirming the Appellate Division’s decision denying the appeal by the New Jersey Division of Child Protection & Permanency in the case of New Jersey Division of Child Protection & Permanency v. K.N. and K.E., 435 N.J. Super. 16 (App.Div. 2014), wherein the “Division” appealed from a June, 2013 order that awarded custody of T.E. (“Tommy”), the six-year-old son of K.N. (“Kara”) and T.E. (“Kevin”) to his maternal grandmother as a paid resource placement parents. Continue reading ›

In a recently published opinion, dated February 19, 2014, the Appellate Division analyzed and reversed a trial court’s decision declining to gavelexercise jurisdiction pursuant to New Jersey’s version of the Uniform Child Custody Jurisdiction and Enforcement Act (commonly referred to as UCCJEA).  In this particular case, designated S.B. v. G.M.B., the trial court made a determination  to decline jurisdiction, in favor of the courts of Ontario, Canada, despite the fact that this relief was not specifically requested by either party.  Continue reading ›

file0002082373718In a perfect world, the issue of relocation or removal would never come up in the context of either divorce litigation or a post-judgment application because parents would be able to live in relative close proximity to one another and cooperate for the best interests of their children.  Continue reading ›