Articles Posted in Case Law

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A recent ruling by the New Jersey Court of Appeals clarifies the standard of proof required in obtaining a Final Restraining Order (a/k/a  an “F.R.O.”). This ruling affirms a court’s authority to use discretion to weigh evidence in restraining order proceedings. If you are being harassed by a spouse, significant other, a person you’ve lived with, or have a child with, you should contact a New Jersey family law attorney right away.

Although married for several years, Gandy and Blaine experienced irreconcilable differences, so they moved into separate residences and later obtained a divorce in 2012. There were two children born during the marriage, and Gandy and Blaine shared custody. The relationship between Gandy and Blaine seemed plagued with a history of hostility. In May 2013, Gandy claims that Blaine came to pick up the kids, but while he was waiting in the driveway he appeared to be doing something behind Gandy’s car. When Gandy came to the door of her residence, Blain walked out from behind Gandy’s car and around some bushes in order to proceed up Gandy’s walkway. Continue reading

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Changes in child custody orders can affect a parent’s financial obligations in a number of ways. In the recent New Jersey appellate case of Cowie v. Cowie, which was filed by our firm, a mother had already obtained sole custody of her children, and she made a motion to have the father’s child support obligation re-evaluated. But challenges arose when the new custody arrangement was deemed “temporary,” and the family court denied her motion. But the appellate court sided with the mom, noting that child support orders are designed to benefit the child, and that the change in custody warranted a fresh look at the father’s child support obligation. If your custody situation is changing, you should talk to an experienced New Jersey family law attorney to see if the new arrangement will have an impact on other aspects of the divorce and child custody agreements.

A divorced mother and father had joint custody of their children, with equal custodial and financial rights and obligations. But the father began to suffer from mental health issues, which began to strain the parents’ prior “50/50” custody arrangement. So a court intervened and awarded the mother “temporary sole legal and residential custody.” Because of a new supervised parenting schedule, the father no longer kept the kids overnight. Eventually, the father stopped seeing the children altogether. With the child-rearing responsibilities shifted solely to the mother, the mother’s expenses increased substantially.  Continue reading

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Child support negotiation involves a number of issues that can complicate the process. For example, some divorced parents want to waive or reduce a child support agreement as part of a larger divorce settlement deal negotiated between the parents. New Jersey judges can intervene by altering the child support amount or changing the date on which child support terminates. In some cases, judges can even void an otherwise mutually acceptable agreement. These thorny problems can be resolved by working with an experienced New Jersey family law attorney.

Sometimes divorced parents want to negotiate an agreement that reduces or eliminates a child support obligation in exchange for some other benefit, but problems can emerge because New Jersey courts recognize that the right to child support belongs exclusively to the child. This fact doesn’t change even when both parents agree to modify or terminate a child support agreement. The New Jersey Appellate Court case of Faro v. Heyden held that “even an explicit waiver agreement cannot vitiate a child’s right to support.”  Continue reading

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A recently published case establishes new rules for resolving preschool disputes between divorced parents. The court recognized that this particular issue had never been addressed before. An ordinary dispute between divorced parents can sometimes land you in an unexplored area of New Jersey law. It is important to hire a knowledgeable family law attorney to help navigate your parental rights disputes.

The case of Madison v. Davis involves parents who were married for four years before they were divorced. They have joint custody of a child, “L.D.”, with L.D.’s mother assigned as the primary residential custodian. Until recently, L.D. attended a preschool that was chosen by both parents. This school (referred to as “Preschool A”) violated state regulations by improperly allowing L.D.’s father to pick the child up from school when he was not authorized. L.D.’s mother promptly took the child out of “Preschool A” and enrolled her in “Preschool B.”  Continue reading

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If a person feels that his or her life, safety, or health is at risk because of the acts or threats of another person, he or she may be able to obtain a temporary restraining order from a judge in New Jersey. The Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 et seq is the body of law in New jersey that was enacted, and designed to provide a swift remedy to protect a  victim from abuse.   Similarly, if you are a defendant that believes you were wrongfully accused of having committed an act of domestic violence, the consequences of having a restraining order entered against you can have long term impact.

Domestic violence is pervasive. It knows no socio-economic boundaries.  If you are the victim of domestic violence, or if you have been accused of committing an act of domestic violence, you should call an experienced, licensed  domestic violence attorney in New Jersey to zealously represent your rights.

Procedurally, a victim of domestic violence may seek a temporary restraining order (T.R.O.) from a Superior Court judge in the family division of the county court where the alleged act of domestic violence occurred, the county where the victim resides, or where the defendant resides.  If the Superior Court is closed at that time, the victim should immediately contact the local police department who will then contact the municipal court judge. The municipal court judge will speak with the victim by telephone to ascertain the facts. The judge will then decide if the victim has described a set of facts that are sufficient to obtain a TRO.  If the judge decides to grant the TRO to the victim, the police will prepare and serve the TRO on the defendant immediately.   In many instances, the victim is granted the exclusive use and occupancy of any shared residence the two people had occupied up until the alleged act occurred.  In addition, the victim is presumptively entitled to temporary custody of any minor child.  The court will schedule the matter for a hearing within the next 5-10 days to allow the defendant to tell his or her side of the story.  Keep in mind, a TRO, if issued, is frequently issued without the judge  hearing the defendant’s version of what may have transpired.  Generally, our legal justice system does not so drastically effect a person’s rights and due process without a hearing. However, because of the need to balance the immediate protection of a potential victim of domestic violence, the remedy is swift.  To balance that significant impact on a person’s due process whereby  a defendant  in many instances will be denied the opportunity to be heard before he or she is literally removed from one’s home, the court must hold a hearing fairly quickly as well. This hearing is when the court will decide if the TRO should now become a final restraining order (‘FRO”) if the victim proves his or her allegations or, if the defendant can successfully defend against those allegations, the judge will dismiss the TRO and the restraints against the defendant will be vacated.

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When grandparents are denied an opportunity to visit their grandchildren, a conflict is bound to arise. On one hand, a parent has a right to decide how his or her child will be raised. On the other hand, removing a grandparent from a child’s life could potentially harm the child. In New Jersey, we have a statute that governs the rights of parents and grandparents in these situations, and two important court rulings have clarified the way in which the statute is applied. If you are involved in a conflict over visitation, you should speak to a family law attorney who can explain how New Jersey’s statute applies to your case.

The New Jersey legislature passed a law to address problems that arise when a parent forbids a grandparent from interacting with a grandchild. The law sets out a process by which grandparents can apply for visitation rights and lists eight factors that must be considered in evaluating the grandparent’s application for visitation. They include the relationship of the grandparent with the child, how the grandparent gets along with the child’s parents or the person who has custody of the child, and the length of the period since when the grandparent has spent time with the child. Other factors extend to considering what impact the grandparent visitation may have on the relationship of the child with his or her parents or the individual with custody, the time-sharing arrangement of the parents, the motive of the grandparent in seeking visitation, any record of the grandparent mistreating the child, and any other information that may seem relevant to the court.

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A recently published New Jersey case held that a divorced parent is not always liable for a child’s college education. This case involved complex facts, and a number of criteria were considered in addition to the parent/child relationship. Divorce cases can be complex, especially when there are children involved in the equation. If you are considering a divorce or a dissolution of your civil union, you should talk to a New Jersey family law attorney who can help explain your case.

Mr. and Mrs. Black had been married for 17 years, and together they had three children. When Mr. and Mrs. Black were divorced from each other, the settlement included obligations to pay for their children’s college educations.  Although Mr. Black had repeatedly tried to establish a positive relationship with C.B., their oldest child, the child had  written  Mr. Black completely out of his life.  Therefore, Mr. Black no longer saw a reason to pay for C.B.’s college tuition. Continue reading

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New Jersey residents are allowed to designate a representative in legal matters. This arrangement, called a Designated Power of Attorney (POA), allows a trusted person to sign documents and negotiate legally binding agreements on your behalf. The right to a POA is expressed in the Revised Durable Power of Attorney Act (N.J.S.A. 46:2B-8.1). But when a litigant in a contested divorce case tried to use a POA, the court found that there are limits to a POA’s powers. Before  allowing someone to act with such power on your behalf, you should discuss the implications with a licensed attorney.

Mr. Marsico created a POA agreement that allowed his adult daughter from a prior marriage, Ms. Mertz, to act on his behalf in some legal matters. Several months later, Ms. Marsico decided she wanted a divorce from Mr. Marsico. When Ms. Marsico sent a complaint for divorce, Ms. Mertz signed and filed a counterclaim for divorce on behalf of her father, Mr. Marsico.

The attorney for Ms. Marsico objected to the counterclaim, stating that it wasn’t valid because it wasn’t signed by Mr. Marsico. The attorney went on to note that Mr. Marsico is 84 years old, but he has not been ruled incompetent by any court. Furthermore, the attorney argued that Ms. Mertz has a conflict of interest because she may eventually inherit part of the Marsicos’ marital estate. Continue reading

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A 2010 change to New Jersey law made oral agreements for palimony unenforceable. But it was unclear whether this change would affect agreements that were already in place. A landmark case was recently decided by the New Jersey Supreme Court, declaring that older oral palimony agreements are still valid. If you are struggling to enforce a palimony agreement, or if you want to create an agreement of support between yourself and a loved one, you should contact an experienced New Jersey family law attorney.

When two people agree to something, they don’t always “get it in writing.” New Jersey law recognizes that some oral contracts can be just as binding as written contracts, but there are a number of problems inherent in oral agreements. Therefore, it is imperative to get your agreements in writing and in a format that comports with the law.

New Jersey’s Statute of Frauds requires that certain important agreements must be made in writing in order to prevent fraud. For example, if you transfer ownership of real estate, make certain major agreements relating to creditors, or make agreements that depend upon a future marriage, the Statute of Frauds requires those agreements to be in writing. Continue reading

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In the state of New Jersey, it is rare that the entry of your final judgment of divorce represents the final interaction with your former spouse, especially  if your settlement agreement or  judgment of divorce includes a provision for alimony to be paid.  Whether you are the payor/obligor or the payee/recipient of alimony, it is a common occurrence that post-judgment issues arise between the now divorced spouses will inevitably occur and, in many cases, it involves the issue of alimony. This post-judgment scenario frequently occurs when the obligor spouse believes that the dependent spouse receiving alimony may be cohabiting with a person in a relationship akin to a marriage and thus, believes the alimony obligation should terminate or, at a minimum,  be reduced. Continue reading

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