New Jersey Provides Service Members With Extra Protections Regarding Custody.

According to SenateNJ.com, on January 28, 2013, Legislation (S-1051/A-634) was signed into law by Governor Christie, which provides additional protections for parents who are U.S. Service Members. The law prohibits our courts from modifying or amending any child custody or parenting time order or judgment while the service member parent is deployed, unless it is in the best interest of the child. More, the law provides that whenever our courts are required to make a determination concerning child custody or parenting time, they will not consider the service member parent’s absence or potential absence away from the child due to deployment, as a factor when determining the best interest of their child. 

Can my teenaged child choose where she wants to live

In follow-up to my 1/22/13 Post:

The appellate division released another opinion on January 23, 2012, again reiterating the necessity of a plenary hearing.  In M.I. v. B.I., the trial court conducted an in camera interview of the parties’ fifteen (15) year old daughter, who the court found to be “very sophisticated” and who expressed a desire to live with her father, and indicated her concerns for her mother’s parenting style. The parties have two children. 

The trial court denied the father’s application for a transfer of custody, without holding a plenary hearing. The trial court expressed concerns about splitting up the two children.

The Appellate Division held, that the “views of Amy, then age fifteen, were entitled to significant, albeit not controlling, weight.” The Appellate Division was satisfied that the father had made a prima facie case of changed circumstances, “specifically the preferences of a “very sophisticated” fifteen-year-old girl who expressed a preference for living with one parent and concerns about the parenting style of her then parent of primary residence.” Since the Appellate Division did not find the record to contain sufficient factual support for the judge’s denial of the father’s application, the panel remanded the matter for further consideration, and a plenary if the issues remain contested.

Does a Teenaged Child Have the Right to Choose Where He Wants to Live?

Does my teenaged child have the right to choose where he wants to live?

A teenaged child’s preference to change residential custody is but one factor that a Court must consider when transferring custody to the non-custodial parent.

On January 17, 2013, the Appellate Division, in Atherholt v. Hunter, reiterated a well settled principal that New Jersey Courts are required to hold a plenary hearing (mini-trial) before changing custody and must analyze the factors set forth in N.J.S.A. 9:2-4, even when an older child expresses a desire to live with the other parent.

The case came to the Appellate Division when the mother, Mary Atherholt, appealed a Family Part Order that granted her ex-husband, Michael Hunter, residential custody of their fourteen (14) year old son M.H. after an interview with the child, but without a plenary hearing. The Family Part judge found several factors that justified granting the Father custody, including but not limited to: M.H.’s preference to live with his father, the higher quality of educational facilities accessible from the father’s residence, and the inherent value of a father-son relationship during adolescence, which M.H. was just beginning to enter at the time. This marked the first success after a string of failed efforts by the Father to attain residential custody of his son.  A motion filed earlier by the Father was denied without prejudice in a February 2010 Order, with the parties being ordered to engage in mediation. Upon failure of the mediation the Father filed another motion, which was denied in September 2010 by a different judge. At that time a CNA* report recommended that the Father enjoy increased parenting time with M.H., but with the Mother retaining primary residential custody.

After two in camera interviews, the judge concluded that a change of circumstances had taken place, based in large part on the child’s preferences, and granted the Father residential custody, provoking an appeal. The Family Part Order was reversed on the basis that the judge did not hold a plenary hearing when making this decision, to determine the best interests of the child, and that he did not consider each of the factors outlined in N.J.S.A. 9:2-4 (“safety, happiness, physical, mental and moral welfare.") that would culminate to provide a justification for a change in custody.

*The Custody Neutral Assessment Program (CNA) is one option to help resolve custody issues when the parties do not agree and when mediation has failed.  It involves a mental health professional meeting with the parties and advising the Court of the concerns and considerations.

To learn more about child custody, parenting time, visitation, transfer of custody, or removal law, please do not hesitate to contact Hunnell Law, LLC. 

Only Fair and Equitable Agreements are Enforceable

The reasonableness and fairness of a Matrimonial or Property Settlement Agreement is often overlooked when determining whether it should be enforced.  An often favored concept by our court’s is its reliance on Peterson v. Peterson, 85 N.J. 638 (1981) and Smith v. Smith, 72 N.J. 350 (1977), which say that settlement agreements, because of their voluntary and consensual nature are entitled to “considerable weight” and should not be “unnecessarily or lightly disturbed.”  But, that only applies IF that agreement is fair/just and equitable.   This is a notation that existed well before the seminal case of Lepis v. Lepis, 83 N.J. 139 (1980) or the above cited cases.

A 1960 Supreme Court told us in no uncertain terms, a settlement agreement is a contract, and is only enforceable “to the extent that they are just and equitable”.  Schlemm v. Schlemm, 31 N.J. 557 (1960).  While there is a strong public policy in favor of maintaining stability of settlements in matrimonial matters (Konzelman v. Konzelman, 158 N.J. 185 (1999)) that policy must be tempered by the requirement that only those agreements that are “fair and just” shall be enforced.

To enforce an agreement simply because the word “Agreement” is written atop does a disservice to the entire Court system and trivializes our Judges’ roles in the process, who are not on the bench simply to rubber stamp such documents.  If one party challenges the validity of an agreement, a court must undertake to determine whether it remains fair and equitable.  If not, it should not be enforced. 

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SSA Enjoys Immunity Despite Failing to Properly Garnish Child Support

The Appellate Division held yesterday, October 18, 2011, that the “United States enjoys sovereign immunity from liability for damages arising from the Social Security Administration’s (SSA) failure to withhold disability benefit payments pursuant to a proper state child support garnishment order.”  In this case, a mother filed suit against the federal government, on behalf of her daughter, for who child support was awarded, because of the SSA’s failure to make timely garnishments from the father’s social security benefits.  At the time of the father’s death, he was $79,546 in arrears with his support obligation. The “SSA has paid [the mother] a retroactive award of Social Security disability benefits totaling $58,947.60, and did not garnish any of this award to satisfy child support arrears.”  

Based on the essential facts, which were not in dispute, the Law Division granted summary judgment in favor of the mother, and ordered the federal government to pay the mother, on behalf of the daughter, compensatory damages, prejudgment interest, and counsel fees and costs.

The Appellate Division reversed that decision finding that the mother’s claim was barred by sovereign immunity under 42 U.S.C.A. § 659.

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Restraining Orders

The New Jersey Appellate Division yesterday, in SMK v. CR, again makes clear that in order for a Final Restraining Order to be entered, the ‘victim’ needs to show more than just a predicate offense.  To prevail the ‘victim’ must also prove that a FRO is necessary for his/her protection.  This was a case on appeal from a directed verdict, wherein the trial court dismissed the plaintiff's Temporary Restraining Order after she presented her case, but failed to offer any evidence that a Final Restraining Order was necessary for her protection. 

The Appellate Division found that the trial courts analysis with regard to Silver was correct even on a directed verdict.  The Appellate Division went on to clarify that "The primacy of the second step in the Silver analysis — the determination as to whether an order is necessary for the protection of the victim — was recently reaffirmed. J.D. v. M.D.F., ___ N.J. ___, ___ (2011) (slip. op. at 37). That second step "serves to ensure that the protective purposes of the Act are served, while limiting the possibility that the Act, or the courts, will become inappropriate weapons in domestic warfare." Ibid.

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