New Jersey Family Law Blog

‘Legally Separated’ Is Not a Status Recognized in New Jersey

July 8, 2011 | Kearns Rotolo Law

While entertainment news headlines these days may be full of celebrities and politicians calling it quits on their marriages, divorce is a big step for most couples no matter what problems they may be facing. There can be any number of reasons why a couple in domestic turmoil may not want to jump into divorce – at least not just yet. Among those reasons are financial situations, religious beliefs, insurance matters and even the hope that a little time apart could help mend the relationship. While many states recognize “legal separation” as a state between marriage and divorce, New Jersey does not. (1)

In New Jersey there is a proceeding on the books known as “divorce from bed and board.” This antiquated term refers to a marital state which is between living as husband and wife and divorce. During this time, the couple would enter into a Separation – or Marital Settlement – Agreement, which does much the same as a divorce agreement without permanently ending the marriage. (1)

Under a Separation Agreement, a couple decides and agrees on a number of issues such as how assets are to be distributed between them; whether or not support payments need to be made and, if so, how much; tax issues, such as who claims who as dependents; and custody matters, including visitation schedules and child support. (1)

Court: Grandparents’ Rights Not Automatically Terminated in Adoption

June 25, 2011 | Kearns Rotolo Law

In New Jersey when a child is given up for adoption, the rights of the biological parents are terminated at the end of the adoption process. What happens, however, to the rights of the child’s biological grandparents?

Prior to the 1970’s, grandparents had no legal visitation rights. Then divorce rates began to rise and so did the number of single-parent homes. Grandparents began to take a more active role in raising their grandchildren and states began to adopt laws granting grandparental visitation rights. (1)

Today New Jersey law gives grandparents the right to seek visitation with their grandchildren if they are at any time denied such visits by the children’s parents. The grandparents must prove visitation is in the child’s best interest and the court will consider a series of factors when granting this request, including the relationship between the child and the grandparent(s), the relationship between the child’s parents and the grandparents, and the effect the visitation may have on those relationships. (2)

Should Parents’ Citizenship Status Affect Child’s Rights to Financial Aid?

June 11, 2011 | Kearns Rotolo Law

Financing a higher education is a daunting task that has high school seniors from all walks vying for whatever tuition aid is available. Because need far exceeds availability these days, it is only logical that criteria for eligibility be set. But when a New Jersey teenager’s application for state aid was rejected recently, it raised the question of whether a child born in this country should be denied such benefits because of his or her parents’ immigration status. (1)

Generally, state and federal student aid is available only to U.S. citizens, permanent residents or certain other eligible non-citizens. (2) Whether states should extend this aid to children of illegal immigrants has been the topic of hot debate not only in New Jersey but across the country. Supporters say children should not be punished for the actions of their parents. Opponents, on the other hand, fear that granting financial assistance to children of illegal immigrants would deplete funds available for legal residents and/or put an undue burden on taxpayers. Proposed legislation that would have made illegal immigrants eligible for in-state tuition rates in New Jersey did not even win enough support for a vote. (3)

The New Jersey case currently in the media and the courts puts a slightly different twist on the issue, however: the student at the center of this case was born in this country, making her a legal citizen. Like many of her peers, she applied to the New Jersey Higher Education Student Assistance Authority (HESAA) for a Tuition Aid Grant. HESAA rejected the application on the basis that her mother was not a legal resident. That decision is being appealed. (1)

Pending Legislation Could End Battle over Rights of Adoptees versus Rights of Birth Parents

May 28, 2011 | Kearns Rotolo Law

The long-running battle that has pitted the rights of adoptees to have access to their birth records against birth parents’ rights to privacy may soon come to an end in New Jersey. A bill ending that battle was approved by the New Jersey State Legislature earlier this month and now awaits signing by Gov. Chris Christie. (1)

The pending legislation would give adoptees in the State the right to access their birth certificates once they turn 18. Parents who have given children up for adoption prior to the law taking effect would have one year from the date the law is adopted to request their names be stricken from the birth records. Once the law is passed — if it is — those giving a child up for adoption could submit in writing their desire not to be contacted. (2) Those parents could have their names stricken from birth records as long as they disclose details of their medical and cultural backgrounds. (3)

Currently in New Jersey access to birth certificates in “closed” adoptions is available only by court order. The adoptee must show good cause to the courts in order for their birth certificates to be unsealed. What constitutes “good cause” is up to the discretion of the judge involved with the particular case. (4)

Paying Parent Has Right to School Records

April 30, 2011 | Kearns Rotolo Law

Issues of privacy between parents and children can be very sensitive matters, with parents trying to balance their desire to support and protect with their children’s rights. Sometimes, however, a parent’s right to know can supersede the child’s privacy rights, as illustrated in the recent New Jersey case of Van Brunt v. Van Brunt.

The question in that case came down to whether children can both evoke their right to privacy under the Family Education Rights and Privacy Act (FERPA) and claim entitlement to child support and financial assistance with their education. The court’s answer essentially was no.

The Van Brunts are a divorced couple who have joint legal custody of their two children. Under terms of their divorce, Mrs. Van Brunt was named primary residential parent and Mr. Van Brunt was ordered to pay child support, including contributions towards the children’s college expenses, until they become emancipated. The children would not be considered emancipated, according to the agreement, as long as they were enrolled in a full-time, four-year academic college program. (1)

Should Your Right to an Attorney Pertain to Child Support Cases?

April 17, 2011 | Kearns Rotolo Law

Anyone who has ever watched a TV police drama is familiar with the line “. . . You have the right to speak to an attorney . . . If you cannot afford a lawyer, one will be provided for you at government expense.” (1) The question currently being considered by the U.S. Supreme Court is whether this right, which usually pertains to defendants in criminal cases, should be extended to include defendants in civil cases, specifically child support matters. (2)

The particular case under consideration involves a South Carolina father who has been held in civil contempt on several occasions and sentenced to as much as one year in jail at a time for failure to make his child support payments. (2)

Since 1963, the Supreme Court has held that people facing incarceration must have the opportunity to be represented by an attorney. People who cannot afford an attorney are provided with one. That ruling, however, was tied to the Sixth Amendment and only related to criminal proceedings, not civil matters. Still, a number of states, including New Jersey, make provisions for impoverished people in child support cases. (2)

Does New Jersey Need to Update Its Definition of “Mother”?

April 2, 2011 | Kearns Rotolo Law

Imagine availing yourself of all the advancements in reproductive technology in order to conceive the child you thought you may never have just to have the courts say you haven’t earned the title of “Mom.” That is exactly what has happened to a Union County couple now fighting to update State law.

The couple conceived a child through in vitro fertilization, a process whereby the egg is fertilized outside the womb and then implanted into the mother. In this case the egg came from a donor and a surrogate carried the baby to term. As a result, the intended mother has no genetic or biological relationship to the child. (1)

Before the child’s birth 19 months ago, a Superior Court judge issued a pre-birth order permitting the wife’s name to be listed on the birth certificate as the child’s mother. The Bureau of Vital Statistics challenged this ruling and an Appeals Court sided with the Bureau, ruling that the woman would have to adopt the child in order to be recognized as his mother by State courts. (2)

She Gets the House, He Gets the Cars, But Who Gets Rover?

March 19, 2011 | Kearns Rotolo Law

Deciding the fate of the family pet in a divorce is a little more complicated than deciding who gets Great Aunt Sara’s heirloom trinkets, yet most states consider pets as mere property. New Jersey, however, is one state that recognizes the uniqueness of pets and the sentimental value we attach to them. In fact, New Jersey courts will enforce sharing agreements entered into by divorcing couples.

This opinion dates back to the March 2009 case of Houseman v. Dare. As an engaged couple, Ms. Houseman and Mr. Dare shared ownership of a pug named Dexter. When the engagement ended, they reached an agreement on sharing their dog. This worked well until Ms. Houseman went on vacation, leaving Dexter with Mr. Dare. Upon her return, she learned Mr. Dare reneged on the agreement wanting Dexter to himself. Ms. Houseman filed suit. (1)

The lower court’s initial decision was to not enforce the sharing agreement. A two-year battle ensued and a New Jersey Appeals Court reversed the lower court’s decision to not enforce the sharing agreement, awarding monetary compensation instead. The Appeals Court ruled that a judge can, in fact, enforce sharing agreements or, if necessary, determine who gets the family pet based on sentimental value.

N.J. Court Denies Visitation Rights to Brazilian Grandparents of Tinton Falls Boy

March 6, 2011 | Kearns Rotolo Law

Divorce not only separates the nuclear family – father, mother, child – but it can have ramifications for the extended family as well. The grandparent/grandchild relationship is one that can often suffer from the dissolution of a marriage.

Since the 1970s, a number of states have passed laws recognizing grandparents’ rights in maintaining relationships with their grandchildren. The Grandparents’ Visitation Statute of New Jersey grants grandparents the right to seek visitation with their grandchildren in the State. (1)

In reviewing the grandparents’ application for visitation, courts take several things into consideration, including the grandparents’ relationship with that grandchild as well as with their relationship with their own child. Indications of abuse of any kind – emotional, sexual, physical – or indications of neglect will be weighed heavily by the courts when ruling on the visitation application.(2) Just how heavily such actions are weighed was evident in a recent Monmouth County case.

State Supreme Court Agrees Trial Court Judge Erred in Denying Custodial Parent’s Request to Relocate

February 19, 2011 | Kearns Rotolo Law

A New Jersey statute designed to protect the rights of non-custodial parents and their children and maintain their relationship may have unfairly affected the rights of custodial parents, but case law is changing to address this inequity.

This situation came to light recently in the case of Morgan v. Morgan, a New Jersey couple who divorced in 2005. As part of their divorce settlement, the couple was granted joint legal custody of their two daughters, with the mother being the residential parent and the father having custody every other weekend, and one evening, and one overnight per week. He was also granted two weeks vacation time with the girls each year. (1)

When circumstances in the mother’s life changed and she contemplated relocating with her daughters to her home state of Massachusetts, the father filed a motion to re-determine custody. The mother filed a cross-motion requesting permission to relocate. These motions were filed in November 2005, at which time the trial judge denied the custody motion. A hearing on the relocation issue was held in 2007. This, too, was denied by the judge, who stated the mother’s reasons for relocating were not “valid” and the father’s relationship with his daughters could not be sustained under a new visitation schedule. (1)