Articles Posted in Child Custody And Visitation

In New Jersey, family law cases always provide courts the opportunity to create new law, particularly when it comes to child custody laws in NJ. One very recent case, Bisbing v. Bisbing, added an interpretation for what is necessary to establish “cause” to allow a child to permanently relocate out of state with the child, even if the other parent objects to the move.

The parties agreed to a marital settlement agreement when they separated. The agreement included that the mother, Jaime, would have primary residential custody with their twin daughters. The agreement also mentioned a relocation provision, stating that “[n]either party shall permanently relocate with the Children from the State of New Jersey without the prior written consent of the other.” About a year after the divorce was final, Jaime told her ex that she intended to marry another man, who lived in Utah. Significantly, the wife had been dating this gentlemen prior to the resolution of the agreement. She requested that her ex-spouse consent to the relocation of the children with her to Utah. Her ex-husband said she was free to go, but the children must remain in New Jersey with him.

Plaintiff went to court, filing a motion under N.J.S.A. 9:2-2, requesting that she be allowed to permanently relocate to Utah with her children. In response, her ex-husband argued that she had negotiated the agreement in bad faith, knowing she was planning on relocating without telling him so he would agree to give her primary residential custody. Child custody laws in NJ at the time, under the Baures standard, required the parent who is requesting relocation despite opposition from the other parent to show that there is a good-faith reason to move and that it will not negatively affect the child’s interests. At trial, the court agreed that the move was in good faith and the children would not be harmed by it, and granted plaintiff’s request. She promptly moved to Utah, and enrolled the children in school. Continue reading

A recent case out of New Jersey gives a great overview of the myriad child custody laws in NJ, particularly concerning jurisdictional aspects. The case, BG v LH, concerns three children. The eldest son has mental health issues, but lives in Israel and is now an adult. The younger son has extreme cerebral palsy. He has a wheelchair, cannot speak, and can communicate only using facial expressions, various noises, and a DynaVox. His physical disabilities are severe, and almost all of his daily functions are performed by someone else on his behalf. On June 30, 2014, the children’s parents were officially divorced upon the issuance of a Dual Final Judgment of Divorce (DFJOD), but prior to this, the court had entered a final judgment concerning the custody and parenting time issues, which the parties had consented to. Within this custody order, the mother had asserted that the father had agreed that she be allowed to relocate with her children to Massachusetts, specifically in the Boston/Newton area. She did move, and the parties continued to share custody and visitation of the children pursuant to the order.

However, in November 2016, the father picked up the younger son, then on the way back to New Jersey, traveled to Connecticut to retrieve his daughter who was at a school retreat. The daughter wanted to drive back with her friends and go visit her father from there, but the father refused, which of course, led to a confrontation. Although it was eventually resolved, the daughter’s anger discolored the entire weekend, and upon a week of returning the children to Massachusetts, the department of children and family received complaints, alleging that there was sexual and physical abuse upon the children by their father. Eventually, the complaints were said to be unsubstantiated, although the mother had already filed suit to amend custody in Massachusetts by that time, and the judge there restricted the father to have supervised parenting time only.

Courts interpreting child custody laws in NJ are bound to also follow the New Jersey Uniform Child Custody Jurisdiction and Enforcement Act, or NJUCCJEA. Essentially, the law provides that because New Jersey entered the initial orders concerning custody, that New Jersey can now be the only jurisdiction that is able to determine if it has lost jurisdiction. The children moved and currently reside in Massachusetts, so under the act, Massachusetts is the child’s home state. However, the court was required to go through a three-part analysis to determine whether it had appropriate jurisdiction to make custody determinations. Continue reading

The court in Sacklow v Betts very recently encountered the issue of a legal name change in NJ for a transgender child. In this case, the Plaintiff (Sacklow) petitioned the court to change their only child’s name from Veronica Betts to Trevor Adam Betts. The plaintiff argued that the name change was in the child’s best interest because the child is transgender, identifies as male and was undergoing treatment for gender dysphoria. Before puberty, Trevor had been a quintessential tomboy. But during puberty, he changed – he did poorly in school, began engaging in minor criminal enterprises such as vandalizing school property, and fighting. Given the drastic change in his behavior, Trevor was referred to a psychological team, who with their help, he announced that he was transgender and identified as male. At the age of 12, he began requesting that he be referred to as Trevor, rather than Veronica, and from that day forward, his wishes were respected. In fact, the only people who continued to call him Veronica were his father, his stepmother and his step-siblings. Because Trevor felt that this name better reflected his identity, he requested a legal name change.

The court in Sacklow v Betts provides a succinct overview in the procedural aspects of acquiring a legal name change in NJ for a child. An application must be filed by first filing a verified complaint which sets out the reasons why the child is requesting a name change. It should include the child’s date of birth, and also notify the court that the application is not filed in order to defraud creditors, avoid prosecution, or for other illegitimate reasons. The complaint should also include whether or not the child has been involved in some sort of delinquency. If they have, then the complaint needs to be clear on the nature of the crime and punishment. To that end, of course the complaint should include if the child is currently facing delinquency charges. There are additional requirements if the child is part of a family law action, or had been part of one within three years before filing the complaint. In the instant case, there were no errors on the face of the complaint. Continue reading

Child custody cases can often be contentious, expensive, and lengthy. Because of this, New Jersey courts have developed programs like mediation to assist parents in settling their differences outside of the courtroom. The Custody Neutral Assessment Program exists in some areas of New Jersey, mostly in the southern part of the state, though it is not specifically provided for in the child custody laws in NJ. A custody neutral assessment is used in a child custody case if the parents fail to reach an agreement through the initial mediation process, and is thought to be a less expensive and less time consuming of a process than otherwise lengthy custody evaluations. The assessment process takes approximately 3-4 hours, and costs vary depending on the location, but cost around $1,000 to perform (each parent paying half of the cost), which is significantly less than other options.

The Assessment Procedure

The assessment itself is conducted by a licensed mental health professional such as a psychologist or social worker that is prequalified by the court to have the experience and skill necessary to conduct such an assessment. Despite the fact that mental health professionals perform the assessment, the assessment is not a psychological evaluation or testing, and does not involve treatment. The assessor meets with the parties to discuss the issues that cannot be agreed upon. The assessor will sometimes include the children or others involved in the family situation such as step-parents, if deemed appropriate considering the circumstances.

Scope of Assessment – Recommendations

At the conclusion of the interview(s), the assessor will prepare his or her recommendations about how to resolve the issues in dispute by the parents and deliver them to the court. The clinician’s recommendations may include parenting time and custody, as well as referrals for substance abuse evaluations, anger management classes, or related issues that are preventing the parties from agreeing on custody matters. The court will then schedule a case management conference and at that time determine whether it will accept, modify, or reject the recommendations of the evaluation. The recommendations are not binding on either party, each still has the ability to perform a full custody evaluation. Continue reading

For many people, the holidays are a time of family gatherings and happy memories.  However, for recently divorced couples with children, the holidays present a myriad of issues.  Who will have the kids on Christmas morning? How will visits with extended family members be managed? Who decides what to buy and how much to spend on Christmas gifts? Can the ex-spouses manage to be in the same room together? Even after a divorce in NJ, the holidays can be a joyful time if the divorced parents intentionally keep it that way. If the problems get out of hand with your former spouse, you need to speak to an experienced NJ child custody lawyer.

 

Preparation is key.  Conversations about visitation schedules, gifts, and special events should be had weeks, if not months ahead of time. Talking to your ex might still be painful.  Keep conversations focused on the task at hand.  Resist the urge to take jabs at one another or to bring up old wounds. Try to remember that you both love your children and that moving forward in a healthy co-parenting dynamic will benefit them immensely.

 

Provide opportunities for your children to spend time with both sides of the family.  This may mean that your holidays are more hectic than they used to be.  If so, talk with extended family members about your concerns.  Do your best to allow opportunities for family celebration, but don’t sacrifice all your time with your children on the altar of extended family relationships.  Continue reading

New Jersey Statute – Grandparent Visitation

According to the Grandparent Visitation statute, N.J.S.A. 9:2-7.1, a grandparent who is deprived of visitation can seek an order of visitation from the court. In order to do so, the statute states that the grandparent must demonstrate that visitation is in the best interest of the grandchild. As a general rule, however, parents have the right to raise their children the way they wish to, without interference. We call this parental autonomy.

Validity of the Grandparent Visitation Statute – Moriarty v. Brandt

To better understand the current status of grandparent visitation in the state, we need to discuss a case called Moriarty v. Maguire. In Moriarty, the court dealt with the apparent clash between the Grandparent Visitation Statute and parental autonomy. The court in Moriarty ruled that in order for a grandparent to gain visitation against a parent’s wishes, the grandparent must show by a preponderance of the evidence that without the visitation the child will face harm.

Grandparent Visitation Litigation – Major v. Maguire

In Major v. Maguire, grandparents Anthony and Suzanne Major sought visitation under the Grandparent Visitation Statute. The Major’s son, Chris Major, was separated from their granddaughter’s mother, Julie Maguire, when he passed away in 2013. During the separation, the Major’s said they had a close relationship with their granddaughter, including weekly or bi-weekly visits, attending dance recitals, and family trips. Suzanne stated that she frequently took care of her granddaughter while Chris was dying, even living with them in the final weeks. Since Chris’s death, the grandparents stated that they have only seen their granddaughter twice for short visits. Continue reading

What is Physical Child Custody in NJ?

Physical child custody is also known as residential custody. A child lives with the parent who has physical custody. The parent who the child lives with is called the Parent of Primary Residence (PPR).

What is Sole Physical Child Custody in New Jersey?

A parent may have sole physical custody of the child, meaning that the child lives only with one parent. In this arrangement, the child often has visitation time with the other parent, but does not stay overnight.

Can We Have Joint Physical Child Custody in NJ?

Yes, in New Jersey parents can share physical custody. The child will split time equally between both parents’ homes. A common example of this custody arrangement has a child living with a parent for a week, and then living with the other parent the next week. Continue reading

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Divorce is an ugly word but an unfortunate circumstance in many families today. While a divorcing couple can typically navigate the process with as few hurt feelings as possible, it is often impossible to keep children completely out of the battlefield when parents start considering separation and divorce. It is easy to let your children slip to the back of your mind when you are preparing to go through a divorce, simply because there is so much for you to worry about. One thing you simply cannot do, however, is stop worrying about your children. They are going through the divorce with you and your spouse – even if you try to keep them as far from the process as possible.

If you and your spouse are giving serious thought to ending your marriage and you would like to spare your children as much anguish, confusion, and heartache as possible, here are several important things to remember when you begin the process.

Reinforce your love for your children.  Children of divorce often feel that they are at fault in some way for their parents’ divorce, while this is usually never the case. It is critical that you and your spouse constantly reinforce your love for your children while you are going through the process of divorce. They need to know that they are important to you and that the reason why mommy and daddy are no longer together has absolutely nothing to do with them at all. Continue reading

The Bisbings entered into a Marital Settlement Agreement (MSA) that contained specific provisions about relocation of the children. The provision was quite detailed, including specifics about proximity of local relocation distance limits as well as out of state relocation requiring agreement of the parties or court order. The parties considered relocation for employment purposes, though not for re-marriage. At the lower court level, the parties agreed that the children’s quality and style of life are equally provided by both parents.

The lower court allowed relocation of the children, to Utah, with the mother. There was no hearing whatsoever on the issue of relocation. The lower court made a further order for a parenting plan, again, with no hearing whatsoever.  The father appealed. The Appellate Division of the New Jersey Superior Court’s decision returned the case to the lower court to hear the matter and apply the appropriate standards in so doing. Unfortunately, it did not return the children to New Jersey while the matter was pending.

One of the pivotal issues in this appeal was whether the wife had acted in good faith in the negotiation of a settlement agreement, including custody and a non-relocation provision. Looking at the timeline of events, it is clear why that was an issue. Here are the basic facts: Continue reading

Whether you divorce by settlement agreement or a judge orders divorce terms after a trial, the resulting judgment is a legally binding court order. Your settlement agreement is incorporated into your judgment. If your ex doesn’t abide by its terms, either for custody or child support, you have a few options.

Problems With Child Support

If your ex isn’t paying child support, your easiest remedy is to sign up for your state’s child support services. State services collect from your ex, often through an income withholding order, so it’s more difficult for to fall behind with his payments in the first place. His employer must deduct his support from each of his paychecks and forward it to the state. The state then transmits the payments to you and keeps track. If your ex falls behind for such reasons as being out of work, the state may intercept his tax refund, report to the credit bureaus, or place liens against his property.

But state services can be slow because they often labor under a huge caseload. If you want your money sooner rather than later, you can take your ex back to court yourself. Your ex will have to appear before a judge and explain why he hasn’t paid. The judge may work with him if he’s suffered some financial hardship that genuinely prevents him from paying child support. This doesn’t mean the judge will vacate or erase the support terms of your divorce judgment so you won’t get paid. It means he’ll put a plan in place by which your ex can eventually catch up with his arrears (the unpaid balance he owes you) and get back on track. Continue reading

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Peter Van Aulen is certified by the New Jersey Supreme Court as a Matrimonial Attorney.

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