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Nothing is more precious to us than our children. The Supreme Court of the United States has established the right to know one’s children as a fundamental Constitutional right. In New Jersey the9-08-3-300x225 right to know and raise one’s children is firmly entrenched in statutory and case law.  In our mobile society the right to know one’s children post-divorce has often come in conflict with the post-divorce business or social needs of the parents.  New Jersey, like many North Eastern states, has a highly transient population who has come here for business or personal reasons and may find business or social needs more compelling than identity to the State as home. When parents of children feel compelled to move, there is often contention over the impact of such a move on custody of the children.

We call these matters Relocation cases and it is not surprising that these matters can be hotly contested.  Over time, the New Jersey Supreme Court established a standard called the Baures standard (created in the case of Baures v. Lewis, 167 N.J. 91 (2001)) to control how such matters were to proceed when the “primary physical custodian” of the children sought to relocate outside of the state of New Jersey.  Simply put, under Baures if the custodial parent could establish that he or she has a “good faith”  basis for the move and the move was not inimical to the child’s best interest, the burden of proof would then shift to the non-moving, noncustodial parent to prove why the move should not occur. The burden of evidence needed to stop such a move once the prima facia case was established by the custodial parent was nearly impossible.

Recently, we reported on an Appellate Division decision in the case of Bisbing v Bisbing, 445 N.J. Super. 207 (App.Div. 2016),  in which a wife who negotiated a custody agreement with her former husband that allowed for relocation within months of the divorce judgment sought to relocate with the children to another state.  The Appellate Division reversed the trial court decision which applied the Bauer standard, reasoning that if the Wife had perpetrated a fraud on the Husband by allowing the Wife primary physical custody of the children and agreeing to the Bauer standard while the Wife knew that she was moving, then the Bauer standard had to be supplanted by a more stringent “best interest of the child” standard.   Hence, the Appellate Division established two standards for relocation, one applicable to cases in which there was no fraud, and then a higher standard when there was fraud when the original custody agreement was established.

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Divorce as defined in Webster’s Dictionary means, “the action or instance of legally dissolving a marriage.” While a divorce does end a marriage, it is not “THE END”.   Unfortunately, when in theIMG_6784-300x200 midst of a divorce is it almost impossible for one to see the new beginnings that lay before them.

Getting a divorce can improve your overall mood.  They say, “Misery loves company”. Well, perhaps if you are all miserable then this model could work. However, most people do not want to be surrounded by miserable people and do not really like miserable people. Being in an unhappy relationship is difficult to mask and negatively impacts your overall mood. Once the angst and agita that you may unknowingly carry around, which causes people to distance themselves from you lifts, you may find that your relationships with others in your life improve.

Leaving a bad marriage can make you a better parent. If you have children, a divorce can be positive thing in a volatile marriage. Yes, choosing to leave a bad marriage makes you a better parent. The common excuse, “I stayed for the kids”, may not necessarily equate with good parenting.  For those who use children as an excuse to stay in bad marriage, they may find out when their children are older that the children probably felt all along that their parents, and the children themselves, would have been happier if the parents had divorced. Children should not be raised in an unhealthy environment, especially if domestic violence is occurring. Allowing a child to be exposed to domestic violence, even if the child is not being physically harmed, in some instances is considered child abuse. Even if your divorce is not due to something as extreme as domestic violence, moving on from a situation that makes you unhappy can do wonders for your overall mood. If you are in a good mood, it makes those around you enjoy being around you, especially your children. This not only significantly improves your relationship with your children, but also could likely save lots of money on therapists and the like for you and your children.

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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.  The plaintiff filed a domestic violence complaint against the defendant on March 15, 2016 in which she accused him of choking her  during a party at the apartment they shared.  A temporary restraining order (TRO) was entered and a hearing was scheduled for March 24, 2017 pursuant to N.J.S.A. 2C:25-29(a) which states that a final hearing on a party’s request for a FRO should be held within ten days after the plaintiff files a complaint.

The next day, the defendant appeared in court without counsel present, and he requested an appeal of the TRO based upon the grounds that he was unable to retrieve his personal belongings from the residence. In response to the defendant’s request, the trial court ordered that the hearing be scheduled for the following day: March 17, 2017. Keep in mind that the defendant had only been served with the TRO on the previous day. Likely in light of the aforementioned facts, the defendant then told the court that he needed more time to hire an attorney.   The plaintiff first requested an adjournment “because of a medical issue” and the court granted that request, moving the hearing to March 31 and then rescheduling it again to April 7, 2016 because of the court’s schedule.  Defendant’s counsel then requested an adjournment again “because of a prior court commitment” and the judge granted that request as well, scheduling the hearing for April 14, 2016. Just two days prior to the trial date, on April 12, 2016, defendant’s attorney requested yet another adjournment because of other municipal court matters he had scheduled on this date.  In my experience, Superior Court judges are not always willing to adjourn matters on their own calendars for municipal court matters.  More importantly, this case had had a number of adjournments already, and the trial judge was mindful of the statutory requirement to hold a hearing within ten days of the filing of the domestic violence complaint.

The trial court judge denied counsel’s request for an adjournment but offered the consideration of a “ready hold” so that the matter would be heard at a specific time that day.  The defendant’s attorney appeared in municipal court the morning of the hearing but had to advise the trial court that the municipal matter was running late.   The trial judge advised the defendant that the case was going to proceed that day even if his attorney did not arrive.  Defendant was permitted the opportunity to call his attorney but could only reach the attorney’s office staff.   Defendant’s counsel never appeared.  He faxed a letter to the judge’s chambers advising that he was tied up in municipal court, and requested another adjournment of the final hearing.  He sent a second letter asking that the matter be held until he arrived shortly.   The court, however, conducted the hearing without Defendant’s attorney, and entered a final restraining order against the defendant.  The trial judge stated in his amplified decision that he did not receive the two letters from counsel until after the hearing was already completed.

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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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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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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