New Jersey Family Law Blog

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)

Halle Berry Involved in Heated Custody Battle Proving Even Amicable Splits Can Turn Sour

February 5, 2011 | Kearns Rotolo Law

When actress Halle Berry and Gabriel Aubry called it quits last April, reports claimed the split was amicable. The couple was even seen enjoying outings together with their young daughter. Now, however, the two are involved in a bitter custody battle. With each flinging accusations aimed at proving the other unfit, these celebrities prove just how contentious the legal battle can become when custody is involved. (1)

There may have been a time when custody was almost always granted to the mother unless she was proven to be emotionally, physically, or mentally unfit. But that was a time of traditional roles, when mothers were the primary caregivers and fathers the primary breadwinners. Today’s familial roles are not so clearly defined. Courts can no longer depend on traditional definitions of “mother” and “father” when deciding custody matters. So what do the courts look for?

New Jersey recognizes the custodial rights of both parents, but also considers the child’s best interest. Courts must determine if both parents can, and are willing to, meet the basic needs of their children, which vary with age. Some issues the courts consider include any domestic violence history; the parents’ fitness; their work responsibilities; their ability to cooperate and communicate regarding their children; and their willingness to allow each other to fulfill their parental responsibilities. (2)

Can Reading Other’s Emails Be Criminal?

January 27, 2011 | Kearns Rotolo Law

It used to be couples embroiled in divorce battles would hire private investigators to collect evidence against each other. In this digital era, however, more people are relying on electronic means to snag their spouses in compromising situations. The ramifications of this are unclear.

In Rochester Hills, MI, a man is facing felony charges for allegedly hacking into his ex-wife’s computer to access her emails; if found guilty, he faces a prison term of up to five years. (1)

According to reports, Leon Walker is accused of using his ex-wife’s password to access her email, where he discovered alleged infidelities. Walker’s ex-wife, Clara, claims the computer was hers and the password that protected her account was kept secret. Walker counter-claimed that, although the two were divorced, they continued to share the same home and he had access to the computer. He further contended his ex-wife did not protect her passwords but kept them in a book beside the computer. (2)

Are Children Conceived Posthumously Eligible for Survivor Benefits?

January 22, 2011 | Kearns Rotolo Law

Social Security insurance provides survivor benefits for dependent children of deceased workers to help compensate for the loss of financial support. Dependent children are defined as unmarried and under age 18 (19 if still full-time high school students). But are children conceived after the death of a parent eligible for these benefits? According to a U.S. appeals court, they may be. (1)

Karen Capato, a New Jersey mother, filed for and was denied survivor benefits on behalf of her twins who had been conceived in vitro after the death of their father, Robert. Mr. Capato had his sperm frozen before undergoing treatments for cancer in the hopes of producing a sibling for the couple’s other child. Mr. Capato died in March 2002; the twins were born in September of the following year. (2)

According to Social Security regulations, applicants have the right to appeal an agency decision. That process has four levels: reconsideration, hearing, an Appeals Council review and a review by a Federal Court. (3)

New Laws Offer Help to Victims of Domestic Violence

January 10, 2011 | Kearns Rotolo Law

As 2010 was drawing to a close, New Jersey lawmakers were busy adopting bills to improve the rights of victims of violent crimes including victims of domestic violence.

The first bill, which was signed into law last month by Gov. Chris Christie, extended the time-frame under which victims of violent crimes, including domestic violence, could, under certain circumstances, collect compensation benefits from the State through the Victims of Crime Compensation Office (VCCO).

Previously violent crime victims or, in some cases, their dependents and families, could receive State benefits to cover expenses incurred as a result of the crime for a period of five years after the crime was committed. Those expenses may include physical and mental medical bills and relocation costs.

Child Support Sweep Nets Hundreds of Delinquent Parents

December 13, 2010 | Kearns Rotolo Law

Efforts by the 21 sheriffs’ departments throughout New Jersey resulted in the arrest of some 953 people on charges of failure to pay child support. Those arrested owed over $14 million in combined child support payments. As of December 10, the State had collected about $233,000 or that amount as a result of the arrests. (1)

This three-day sweep was a cooperative effort by New Jersey’s Child Support Services and the State’s Sheriffs Association to ensure that non-custodial parents abide by the court ordered child support payments. These sweeps seek out both parents who are in arrears on their child support and those who neglect to attend court hearings to set up medical and/or support payment schedules. (2)

New Jersey’s Child Support Agency is entrusted with ensuring that child support payments are made in accordance with court orders. The Agency uncovers incidents of non-payment or late or partial payment of support and takes action to rectify the situation. Those actions can include, but are not limited to, withholding income, seizing assets such as lottery winnings and/or settlements or awards resulting from civil suits, and offsetting tax refunds. (3)