February 29: An Anniversary in Civil Rights Act Law

February 29 comes around only every four years (all right, every four years except for certain years that end in double zeros).  February 29 was the birthdate of Frederic, the male lead in Gilbert and Sullivan’s “The Pirates of Penzance,” a fact that is an important plot point, as is described, among other places, here.  […]

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Editorial: The United States Senate Should Take Up President Obama’s Supreme Court Nomination, When Made

Within hours of the death of Justice Scalia, talk turned to who President Obama might nominate to fill his seat, and whether the United States Senate would consider that nomination in this presidential election year.  Senator McConnell (R-KY), the Senate Majority Leader, quickly announced that no nominee would be considered.  “The American people should have […]

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New Mother’s Failure to Tell Hospital Staff That She Had Used Certain Medication During Pregnancy Constituted Child Abuse or Neglect

New Jersey Division of Child Protection & Permanency v. K.M., ___ N.J. Super. ___ (App. Div. 2016).  This is another child abuse and neglect appeal, but one that contains an unusual twist on a woman’s use of drugs during pregnancy.  Defendant K.M. gave birth to a child, G.G., who, during the first three days after […]

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Time to File a Will Contest

In general, the time limitation to file a lawsuit in the State of New Jersey is quite lengthy. For instance, an action related to a Breach of Contract matter would extend for six years from the date of the breach, whereas a Personal Injury matter may be filed two years after the cause of action accrued. With regard to a Will Contest, however, the period of time to file a lawsuit is actually quite short.

Rule 4:85-1 governs the time period pursuant to which a Will Contest must be commenced. In general, if you are an in-state party that time period begins to run four months after the probate of the Will or the granting of letters of appointment by the Surrogate. If you are an out-of-state party, that period begins to run six months after the probate of the Will or the granting of letters of appointment by the Surrogate. As such, the time period to contest a Will is extremely short based upon the confines of Rule 4:85-1.

It should be noted, however, that the Court can extend the time period for thirty days pursuant to Rule 4:85-2, based upon a showing of good cause. For the most part, the Court is willing to grant a thirty-day extension in light of the short time period set forth by the statute.

Aside from the time period set forth under Rule 4:85-1, a party may seek to commence a Will Contest based upon Rule 4:50-1. This rule provides that the Court may vacate an Order or Judgment of the Court based upon several grounds for relief. The most useful section is Section F of this Rule. This catch-all provision provides that the Court may vacate an Order or Judgment for any other reason justifying relief from the operation of Judgment or Order.

As can plainly be seen, this catch-all provision gives the Court great discretion and latitude to vacate a previous Order which might have admitted the Will to probate, thereby opening the door to a Will Contest. In general, however, there must be some demonstration of fraud, excusable neglect, or other improper conduct by the Executor of the Estate. As such, although it is a catch-all provision it is often times narrowly construed by the Court unless there is proof of wrong doing.

In light of the very short time period to contest a Will, it is always suggested that a party immediately consult with an attorney after notice of probate should they be interested in Contesting a Will. Should they wait any appreciable time, the time period during which to contest a Will could be lost.

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Do You Want To Be Right Or Do You Want to Settle

I see it all the time.  The fight rages on for the fight’s sake.  Each party sure that they are right.  Each party insistent that they must win.  The lawyers pile on, adding fuel to the fire.  Worse yet, some times this happens when the major issues are resolved and the battle continues because of minor issues or non-issues.

In these cases, sometimes the parties don’t even know that they are as close to settlement as they are. Often, they don’t quantify the remaining amount in dispute to figure out that right or wrong, they will never in a lifetime recoup the legal fees it will cost to be right.  Clearly, they don’t consider the emotional cost being right is exacting and/or the value of putting the issue behind you.

Now some people will continue to fight because the fight is all they have left of the marriage or they are otherwise emotionally unable to let go and move on.  In those cases, you may have to wait them out, as we have blogged about in the past.

Some times, it is better to avoid the fight altogether and compromise the number.  As I have said before, sometimes it is better to look at the big picture and negotiate numbers as opposed to how you got to the number because you may ultimately agree to compromise on the number but will never agree how you got there.

However, most people are sane and rational when removed from the stress of the divorce.  Sometimes, you need to take a step back and figure out which issues there is agreement on and which issues remain open.  For the issues that remain open, it is then wise to quantify them to see how much is really at stake.  Figure out what you would get if you won and if you lost and also look at the midpoint.  Then think about how much it is going to cost to get a decision and decide (1) does the cost exceed the amount at issue and (2) is it worth losing the resolution on the major issues?

Most importantly, figure out if it is really worth it to be right or whether it is better to be done.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Custody and Parenting Time Issues of the “Interstate Child”

In today’s ever-increasing mobile society, divorced or separate families find themselves relocating for a variety of reasons, including employment opportunities, new relationships, financial incentives and to be closer to family.

But what happens after families relocate out-of-state and child custody issues arise? Which state has jurisdiction to hear the matter?

Background

In 1968, the Uniform Child Custody Jurisdiction Act (UCCJA) was promulgated in order to prevent parental interstate kidnapping and forum shopping by the non-custodial parent (i.e. attempting to secure a more favorable forum to litigate child custody and parenting time issues in order to obtain a better result) by creating a uniform system for states to determining interstate custody and parenting time jurisdictional issues. By 1981, all 50 states had adopted their version of the UCCJA.

However, in December 1980, prior to all 50 states adopting the UCCJA, Congress enacted the Parental Kidnapping Prevention Act (PKPA). The PKPA was enacted to address interstate custody jurisdictional problems that continued after the enactment of the UCCJA, but ended up being largely inconsistent with the UCCJA and created almost 30 years of conflicting case law.

To address both the problems stemming from the UCCJA and the PKPA, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was created in 1997. To date, the UCCJEA has been adopted by 49 states and the District of Columbia (except for Massachusetts) and various U.S. territories.

Two of the major revisions made to the UCCJEA were the prioritization of home state jurisdiction and the vesting of exclusive, continuing jurisdiction in the State that entered an original/initial child custody order.

Home State Jurisdiction

The first major revision to the UCCJEA was the establishment of Initial Child Custody Jurisdiction or “home state” jurisdiction. “Home state” is defined as, “the State in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the State in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.” See Section 101 (7) of the UCCJEA.

Pursuant to Section 201 of the UCCJEA, in interstate child custody matters, a state is granted jurisdiction to make a child custody determination only if:

(1) The state was the “home state” of the child on the date of the commencement of the judicial proceedings, or was the home state of the child within the six (6) month period before the commencement of the judicial proceeding, and the although the child is not residing in the state, a parent or person acting as a parent continues to live in the state;

(2) A court of another state does not have jurisdiction, or the home state of the child has declined to exercise jurisdiction on the basis that this state is a more appropriate forum, and:

(a) The child and the child’s parents, or the child and at least one parent (or person acting as a parent) have a significant connection with the state, other than physical presence.

(b) Substantial evidence is available in this state concerning the child’s care, protection, training and personal relationships.

(3) All courts having jurisdiction have declined to exercise same on the basis that this state is the more appropriate forum.

(4) No Court of any other State would have jurisdiction under the criteria set forth in (1), (2), or (3).

Exclusive, Continuing Jurisdiction

The other major revision to the UCCJEA was the addition of “exclusive, continuing jurisdiction”. Pursuant to section 202, the continuing jurisdiction of the original decree state (i.e. the state that made an initial custody determination) is exclusive, and will continue until one of two events occur:

(1) If a parent or person acting as the child’s parent remains in the original decree state, continuing jurisdiction is lost when neither the child, the child and a parent, nor the child and a person acting as a parent continue to have a significant connection with the original decree state and there is no longer substantial evidence concerning the child’s care, protection, training and personal relationships in that State.

(2) When the child, the child’s parents and any person acting as a parent no longer reside in the original decree state.

This means that, even if the child has acquired a new “home state”, the original decree state retains exclusive, continuing jurisdiction, so long as the “significant connection” requirement of Section 201 (See 201(2)((a) and (b)) is met. However, if the original decree state determines that the relationship between the child and the person remaining in the original decree state has diminished, thus precluding a finding of significant connections and substantial evidence, jurisdiction in the original decree state would no longer exist.

Additionally, when the child, the parents, and all persons acting as parents physically leave the original decree state and live elsewhere, exclusive continuing jurisdiction ceases. In this event, either the original decree state or the new state may decide whether the original decree state has lost jurisdiction.

Jurisdiction to Modify Initial Determination

But what happens where an original decree state finds that it no longer has exclusive, continuing jurisdiction over a matter? How does it relinquish jurisdiction to a new “home state”?

Pursuant to Section 203, a new state may not modify a child custody determination made by the court of another state unless the new state has “home state jurisdiction” under Section 201 and

(1) the original decree state determines that it no longer has exclusive, continuing jurisdiction, or the original decree state determines that the new state would be a more convenient forum (See Section 207); or

(2) a court of the original decree state or a court of the new state determines that the child, the child’s parents and any person acting as a parent do not presently reside in the original decree state.

Thus, a new state is prohibited from modifying a custody determination made by an original decree state unless the original decree state has determined that it no longer has exclusive, continuing jurisdiction or the new state has decided is it a more convenient. The new state is not authorized to determine whether the original decree state has lost its jurisdiction; only the original decree state can make that determination. The only exception to this is when the new state finds that the child, the child’s parents and any person acting as a parent no longer reside in the original decree state.

It is clear from section 203 that when an interstate child custody issues arises, the original decree state and the new state must communicate and cooperate to determine the proper jurisdiction of a matter; but how often does this occur?

 

Application of the UCCJEA in New Jersey

While the new revisions and clarifications made to the UCCJEA were supposed to make it easier for courts to determine who could hear interstate child custody matters, as discussed in the recent unpublished (not precedential) decision of C.G. v. A.D. it is clear that the courts are still struggling over jurisdictional issues.

In the aforementioned case, the mother A.D., lived with the parties’ daughter in Delaware for 5 years, until the child temporarily moved to New Jersey to live with her father, C.G., due to A.G.’s medical condition.

Shortly thereafter the mother filed a petition in Delaware for custody of the parties’ daughter. In September 2012, the Delaware judge entered an order awarding the mother sole custody after determining that Delaware was the child’s “home state” pursuant to the UCCJEA, finding that since the mother filed the petition less than six months after the child left Delaware and went to New Jersey, Delaware retained jurisdiction.

The mother then filed a motion in New Jersey, requesting that the court to enforce the custody order entered by the Delaware court.

In June 2014, a New Jersey judge, after conducting oral argument, denied the mother’s application without making any findings of fact as to the child’s residency leading up to the mother’s petition for custody in Delaware and without communicating with the Delaware court regarding the original order. Additionally, despite failing to follow the procedural requisites of the UCCJEA, the New Jersey Judge entered an order requiring the mother to attend therapeutic intervention to aid her parenting time with her daughter.

Thereafter, the mother then returned to the Delaware court seeking again, an order of custody of the parties’ daughter. The Delaware court affirmed its original September 2012 custody order asserting, among other things, that Delaware had jurisdiction to enter the initial order due to the fact that Delaware was the “home state” of the child at the time the mother filed the application.

The mother then appealed the June 2014 New Jersey order, challenging the intervention of the New Jersey court in light of the original Delaware custody order entered in September 2012.

The Appellate Division made it clear that the dispute at bar was subject to UCCJEA and that an initial custody order was properly issued in Delaware. Thus, the subsequent order entered in New Jersey was a “modification proceeding” and in order to modify the initial order, New Jersey was required to make a two-tiered finding as to whether (1) New Jersey was the child’s “home state” and (2) if it was not, whether Delaware was.

If the New Jersey court concluded that New Jersey had “home state” jurisdiction, the next step would be to determine whether custody proceedings had been commenced in another state. If so, New Jersey must stay its proceedings and communicate with the other court to seek an agreement as to whether New Jersey is a more convenient forum or Delaware retained jurisdiction.

If New Jersey concluded that Delaware remained as the child’s “home state”, then all proceedings should have been deferred to Delaware.

Unfortunately, in this matter, the New Jersey court did not follow the proper procedure under the UCCJEA, despite being presented with an existing custody order from Delaware, and the subsequently entered June 2014 order requiring the mother to attend therapeutic intervention to aid her parenting time with her daughter was reversed and remanded.

Parting Words

When it comes to the interstate child, the first order of business before filing a custody or parenting time application, it to determine the proper jurisdiction for doing so. In a matter where two (or sometimes more) courts must communicate, it may be prudent to file an application in all possible jurisdictions, requesting that the possible courts communicate with one another to determine the appropriate forum. This step will (presumably) avoid the inconsistencies that arise when multiple orders are rendered by multiple jurisdictions. Taking this simple step before filing an application may also avoid extensive litigation to correct jurisdictional errors, which could elongate matters and drive up fees unnecessarily.

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Baby, Now You Really Can Drive My Car: Questions About Child Support & Driving Expenses, Answered

Ah, the moment you have been waiting for – nay, dreaming of – has arrived:  your child has gotten his or her driver’s license!  It was a long time coming, after 17 long, hard years of carpooling to school, arguing with the other parents about who is going to pick the kids up from their mall hang-out session, shuttling your child to sports practices, lessons, tutors, and so forth.  Freedom is yours!  There’s just one question:  who’s going to pay for the expenses associated with your son or daughter’s car and insurance expenses?

When it comes to working out a fair child support arrangement, the devil is often in the details.  Child support recipients often feel that the support awarded to them under the Child Support Guidelines – the formula used in this state to calculate appropriate child support awards in most cases – isn’t enough.  After all, kids cost a lot of money.  Plus, their needs are constantly changing.  A child support award entered when the child is 3 years old may not be adequate when that child turns 13.  For parents of teenagers, one life change that often creates a dispute about the adequacy of the child support award occurs when the child begins driving and, at the very least, increases auto insurance costs.

For years, family law attorneys and our clients have grappled with the issue of whether the cost of a child’s car insurance as a new teenage driver was intended to be covered by a Child Support Guidelines-based award or, alternatively, it should be treated as an “add-on” expense to be shared by the parties over and above the child support payment.  And, as Judge Jones points out in his latest thoughtful opinion, Fichter v. Fichter, it has been unclear as to whether the Court may use its discretion to increase the child support contribution in order to address the costs of having a new teenage driver of divorced or unmarried parents.

In 2013, The New Jersey Child Support Guidelines were amended and gave us some answers to these questions.  As amended, child support is to include:

Transportation – All costs involved with owning or leasing an automobile including monthly installments toward principal cost, finance charges (interest), lease payments, gas and motor oil, insurance, maintenance and repairs. Also, included are other costs related to transportation such as public transit, parking fees, license and registration fees, towing, tolls, and automobile service clubs. The net outlay (purchase price minus the trade-in value) for a vehicle purchase is not included. Transportation also does not include expenses associated with a motor vehicle purchased or leased for the intended primary use of a child subject to the support order.

So, the 2013 amendments told us that if a child is going to drive his/her own car, the expenses associated with buying that car, and all other expenses associated with that car – which presumably includes insurance costs – are more appropriately considered “add-ons” to child support and not part of the child support expense.  By contrast, the 2013 amendments tell us that if a child is driving his/her parents’ car, child support will include all costs associated with that car.  And that makes sense:  if no new car is being purchased for the child, the actual expenses incurred by the parent who owns that car are going to remain the same.

Well, except for the auto insurance.  New teenage drivers can increase the cost of auto insurance for an existing car exponentially – they are one of the most expensive classes of drivers to insure due to their inexperience.  To say that an existing child support award covers the cost of adding a newly licensed teenage driver to the auto policy for an existing family car – while the cost of insurance for a new car primarily for that child’s use is NOT included – seriously prejudices those families who can’t afford to, or don’t want to, buy a new car just for their child to use.  Judge Jones’ new decision recognizes that inequity and allows the Court to deviate from the Child Support Guidelines and craft a child support award that takes into account the new expense of adding a teenage driver to an existing auto insurance policy:

The Court finds that, based upon the totality of a family’s economic circumstances, a court may in its discretion find good cause to deviate from the guidelines and require each parent to contribute additional reasonable and affordable monies towards a newly licensed teenage driver’s car insurance.  Good cause may logically include, but not necessarily be limited to, the special nature and importance of car insurance and the need to adequately protect a child as a newly licensed driver.

And that seems fair.  Shouldn’t both parents contribute to the increase of the cost in insurance if they agree they will not purchase a new car intended primarily for their child’s use?  Of course, like most other things in family law, Judge Jones’ decision is fact-sensitive and not a brightline rule.  Although the decision opens the door for a Court to decide to adjust child support to take into account the cost of insuring a newly licensed teenage driver on an existing family vehicle, good cause to do so must still be shown.

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Jessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

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How Community Associations Can Collect on Judgments by Rent Levy

Once association counsel obtains a personal Judgment against the unit owner for failure to pay maintenance fees, late fees, attorneys’ fees and costs, and other charges, we look for ways to collect on the Judgment. If delinquent unit owner rents his unit, one method of collecting on the Judgment is by levying the rental income.

The process starts by association counsel requesting tenant information from management and the board; we need information such as the names of the tenants, copies of any leases management may have on file, license plate numbers of the vehicles driven by the tenants, etc. Once we obtain this information, we file an Execution against Goods and Chattels. A judge will review and sign the Execution against Goods and Chattels, authorizing a Court officer to levy the rent in an amount up to the Judgment amount, plus Court officer commissions and other Court costs. Once the Order is signed, the case is assigned to a Court officer. The Court officer will then serve the tenant with the Execution against Goods and Chattels, which mandates that the tenant must pay his/her rent to the Court Officer, rather than to the delinquent unit owner.

At that point, the tenant will pay the rent to the Court Officer. The Court officer will notify association counsel that the rents have been levied. Association counsel then files a Motion to turn over funds that were levied. The Motion places the unit owner on notice that his/her rental income is about to be turned over to the association.

Once the Order to turnover funds is entered, it is served upon the Court officer, who will then forward the monies to association counsel. This process continues until the Judgment amount, plus court officer commissions and court costs are satisfied.

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Does a Homeowners Insurance Policy That Covers Losses from “Hidden Decay” Protect Against Loss From “Hidden Defects”?

Bardis v. Stinson, ___ N.J. Super. ___ (App. Div. 2016).  This insurance coverage matter is a case with an unusual sequence of appellate events.  The case was argued before the Appellate Division on December 4, 2013.  The panel issued a 2-1 decision on October 8, 2014.  Judge Maven wrote the majority opinion, in which Judge […]

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Changes in Alimony Upon the Retirement of the Spouse Who Must Pay It

Landers v. Landers, ___ N.J. Super. ___ (App. Div. 2016).  This opinion by Judge Lihotz addresses when alimony can be changed due to the retirement of the spouse obligated to pay that alimony.  In 2014, the statute governing alimony was amended to add a new section (j) to N.J.S.A. 2A:34-23.  That new section “lists objective […]

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New Decision Provides Clarity on Impact of Retirement on Pre-Amendment Agreement

As we have previously noted on this blog, some of the biggest changes in the 2014 alimony reform amendments came in connection with the issue of retirement.  In fact, the amendment to the alimony statute now has three different standards, one for early retirement, one for retirement at the attainment of full retirement age (i.e. age upon which you can receive full Social Security benefits – 67 for most people) for new matters and a third for retirement at full retirement age for matters that pre-dated the amendments to the statute.

Perhaps due to either inartful drafting and/or creative lawyering, or both, there were arguments made that the language in the statute “…There shall be a rebuttable presumption that alimony shall terminate upon the obligor spouse or partner attaining full retirement age, …”  applied to all matters, no matter when the divorce occurred.

The Appellate Division decided this question in the negative in the reported (precedential) case of Landers v. Landers released on February 22, 2016.  In that case, which involved a pre-statute divorce where the ex-husband had been paying alimony for 24 years, the husband sought to terminate his divorce based upon retirement.  The trial judge misapplied the law, per the Appellate Division, and determined that the ex-wife had not overcome the presumption that alimony should terminate.

In reversing, Judge Lihotz held:

Notably, the rebuttable presumption included in subsection (j)(1), which places the burden on the obligee to demonstrate continuation of the alimony award once an obligor attains full retirement age, N.J.S.A. 2A:34-23(j)(1), is not repeated, but replaced by a different standard in subsection (j)(3). The latter provision follows the prior principles outlined in Lepis and its progeny, by mandating “the court shall consider the ability of the obligee to have saved adequately for retirement as well as the following factors in order to determine whether the obligor, by a preponderance of the evidence, has demonstrated that modification or termination of alimony is appropriate . . . .” N.J.S.A. 2A:34-23(j)(3) (emphasis added).

Just as the Crews case elevated marital lifestyle ostensibly to a “super factor” in the alimony calculus prior to the 2014 amendments, it appears that this decision could have the same effect on the “ability to save for retirement” aspect of the new statute.  Specifically, the decision holds:

Importantly, subsection (j)(3) elevates the ability of the obligee to have saved adequately for retirement, listed only as a factor under N.J.S.A. 2A:34-23(j)(1)(j), setting it apart from other considerations and requiring its explicit analysis. N.J.S.A. 2A:34-23(j)(3). Also, factors identified in the two subsections are not identical, making the court’s focus different. For example, most apt to plaintiff’s arguments are subsections (j)(3)(f) and (g), mandating an examination of the obligor’s ability to maintain payments upon retirement, and “[t]he obligee’s level of financial independence.”

The problem with making the ability to save to be a “super factor” presumes that permanent alimony, the predecessor to open durational alimony was actually permanent and could never be modified based upon retirement.  That simply was not the case for the last several decades and there was ample decisional law addressing retirement.  Moreover, if alimony had a “savings component” allowing a recipient to save for a time when alimony may end, does that too not suggest that even permanent alimony can end other than death (and upon death, alimony is secured by life insurance in most instances.)

So, put another way, if permanent alimony was never really permanent, or at the very least, if retirement of the payor was a foreseeable event, can someone argue that they knew or should have known of this possibility and the failure to save should not be held against the payor?  Remember, just because retirement was not specifically included in a divorce agreement, does not mean that it was not foreseeable since the law allowed for it – and by the way, it was very difficult, pre-amendment to ever get anyone to agree that alimony should terminate on retirement so the issue was often silent and left to the law to address at the appropriate time.

Either way, as the nuances of the new alimony law work their way through the court, it will be interesting to see if the results lead to the call for even more reform.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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Despite Criticism of Its Brief as Disingenuous or Intentionally Misleading, the Division of Child Protection Wins Qualified Immunity

Mammaro v. New Jersey Div. of Child Protection & Permanency, ___ F.3d ___ (3d Cir. 2016).  In this case, plaintiff brought a civil rights case against the New Jersey Division of Child Protection and Permanency (“the Division”), supervisors and case workers from the Division, and others.  Among other things, she asserted that the Division had […]

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Washington DC Issues New Exempt Reporting Adviser Rule for Venture Capital Funds

Investment advisers should take note, as there has been an announcement of a new rule which might affect them. More specifically, any investment advisers that: (1) act solely as advisers to one or more venture capital funds; (2) are exempt from the registration requirements under the Investment Advisers Act of 1940; and (3) comply with SEC Rule 203(1)-1 (regarding venture capital advisers), are excluded from the District of Columbia Securities Act’s investment adviser definition, according to a new order issued on February 8, 2016. Exempt venture capital advisers excluded from the investment adviser definition must now comply with SEC Rule 204-4 reporting requirements.

To comply with Rule 204-4, an adviser must subject itself to the Exempt Reporting Adviser regime by gaining entitlement through the IARD, prepare a Form ADV as an Exempt Reporting Adviser, and submit it to the SEC and the DC Department of Insurance, Securities and Banking. The IARD will require a $250 fee that will be paid directly to the District of Columbia and a $150 fee that will be paid to the SEC.

In addition to exemption from registration for the investment adviser entity, individuals employed by, or associated with, an exempt reporting adviser that qualifies for the above exclusion are, themselves, excluded from the District of Columbia Securities Act’s investment adviser representative definition.

The above exclusions and exemptions extend to state investment adviser/representative licensing requirements only. Exempt reporting advisers and their employing or associating representatives remain subject to all other applicable securities registration, anti-fraud, and fiduciary provisions of the District of Columbia Securities Act and corresponding rules. In addition, by submitting an Exempt Reporting Adviser application with the SEC, an adviser remains subject to regular examinations by the SEC.

If any investment advisers have further questions about this exemption, it is recommended that you seek experienced counsel immediately.

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DD Stores charged with overcharging

“DD stores ‘Dunking’ their customers with overcharging”

Think you’re paying too much while picking up your mornin’ Joe? Well, you might be right. Several Dunkin’ Donuts stores in New Jersey and New York have recently been accused of overcharging their customers. Allegedly, these stores charge customers sales tax on tax-exempt items such as bottled water, packaged coffee, and other legally un-taxable products designated “untaxable” by the Division of Taxation. In Ft. Lee, New Jersey, the DD store supposedly charged the the state’s 7% tax on a multitude of items in clear violation of New Jersey code, as was alleged by a law suit filed earlier this month.

A similar case has occurred in Manhattan, in which a customer was charged sales tax on pre-packaged coffee beans, implicating yet another suit. According to Carl Mayer, a lawyer who commented to the New York Post, about a dozen separate DD stores overcharge their customers about 70% of the time. Mayer argues Dunkin’ Donuts stores across both New Jersey and New York have made huge illegitimate profits. He estimates DD stores have profited approximately $10 million off New York customers and $4 million in New Jersey over the course of three years.

New Jersey Sports Gambling Law Case Argued En Banc

As discussed here, the en banc Third Circuit was to hear oral argument in this case today, and it did so this morning.  The audio of that oral argument, which ran for about 70 minutes, is available here.  Among the central subjects of discussion were the somewhat ephemeral distinction between repealing a prohibition on sports […]

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Triparenting, is it better than two?

In a recent Ocean County Superior Court case, Judge Stephanie Wauters ruled on the issue of child custody between three people.  Included in the proceedings was the biological father, his same-sex spouse, and the biological mother, of whom were attempting to create a “tri-parenting relationship.”  The biological father, ‘D.G.’ had artificially conceived with ‘K.S.’, who had been friends with both spouses for a long time. 

What Can I Do If An Executor Abuses the Estate?

If an Executor fails to properly administer an estate, it can have severe repercussions for the beneficiaries. An Executor has broad authority to control all aspects of an estate. When an Executor acts improperly, it can delay settlement of the estate and diminish the value of the estate’s assets. If you are a beneficiary of an estate that is being damaged by an Executor, you have rights and can take action to enforce the estate and the executor’s obligations.

Beneficiaries need to be aware that even simple problems, such as an Executor’s failure to take timely action, can substantially damage an estate. I will provide a hypothetical estate to help demonstrate these problems. Suppose an estate consists of the following assets: (i) a car; (ii) a house worth $650,000; and (iii) financial accounts worth $2,000,000. If the Executor fails to list the house for sale, the estate incurs unnecessary property taxes, utilities, and operating costs. The homeowners and automobile insurance policies have to be transferred into the name of the estate, and failure to properly update the insurance coverage may jeopardize coverage. The house and the automobile have to be secured and sold. Failure to take these basic actions places estate assets at risk and incurs unnecessary costs.

The Executor is responsible for filing and paying income taxes and paying property taxes on the house. If income and property taxes are not paid on time, they accumulate interest and penalties. In addition, New Jersey imposes a lien for the collection of New Jersey Estate and Inheritance Taxes.

Using our hypothetical estate as an example, the Executor would have to file and pay these taxes before the liens are released by the State of New Jersey. Until the liens are discharged, the beneficiaries will have limited access to the estate’s assets.

In more serious cases, Executors engage in misconduct that affects the value of the estate. We have seen situations where an Executor:

• Refuses to probate the decedent’s Last Will and Testament;
• Fails to make distributions;
• Misappropriates estate assets;
• Refuses to account for assets taken during the decedent’s lifetime;
• Lives in a residence owned by the estate without paying rent; and,
• Allows estate property to pass into the Unclaimed Property Fund.

These problems are very serious and costly for the beneficiaries, particularly where no action is taken.

Beneficiaries have rights and do not have to suffer through an improper estate administration. Executors are subject to court oversight including accountings, time limitations, sanctions, and removal. The nature of the remedies depends on the specific problems caused by the Executor. Until action is taken, the losses often grow worse with time. The first step is to know your legal rights, and the available options, so you can take the most effective course of action.

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Special Sunday Alert: Justice Scalia Dies

Justice Antonin Scalia of the Supreme Court of the United States died yesterday.  Born in Trenton, New Jersey on March 11, 1936, he was 79 at his death. A graduate of Georgetown University and Harvard Law School, Justice Scalia began his legal career at the law firm now known as Jones Day.  After six years […]

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Proposed Changes to New Jersey Appellate Rules

The Supreme Court has published for comments the report of its Civil Practice Committee.  The report is available here.  The Committee has proposed revisions to three appellate rules. There are two proposed changes to Rule 2:6-2.  Revised Rule 2:6-2(a)(1) would require that, in every point heading in the appellant’s brief, a parenthetical reference at the […]

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Divorcing from Your Spouse’s Student Loan Debt

I recently came across an article, Getting Financially Naked with Your Partner, by Erin Lowry, that got me thinking about a question that is bound to arise more and more in this practice.  Millennials, as a generation, are beset by student loan debt at the highest levels in history.  As they start marrying and, as a corollary, divorcing, a common question they will ask is: what responsibility do I have when it comes to my husband’s / wife’s student loan debt?

 

As with many issues, the answer will be fact specific.  It is well-settled law in New Jersey that any pre-marital assets or debts, and any passive growth of either the asset or the debt, are the separate property of the spouse who acquired the asset or the debt.  For example, Doug Debtor may have acquired $50,000 in student loan debt when he was in college, years before he met his wife.  In principle, if that debt still exists when Doug and his wife get divorced, he is going to be responsible for the entirety of it, including any interest on the debt that accrued while Doug and his wife were married.  Of course, the facts of any individual case may very well blur that bright line rule.  For example, maybe the parties lived together (though were not yet married) when the debt was incurred, and it was used to pay for living expenses.  In that case, an argument could be made that the non-debtor party should share in the debt – after all, s(he) benefited from the loan.

However, both parties will share in responsibility for debt incurred during the marriage – including student loan debt incurred by one of the parties for his or her education.  The idea here is that the parties as a united front made the decision to take on that debt and, hopefully, reap whatever benefits come with the spouse’s education; therefore, they are both responsible for the debt.

The set of facts raised in Lowry’s article present some interesting questions.  While the debt is pre-marital and was incurred apparently before the couple ever knew each other, the “deal” they make is that when they’re married, they will live off of Lowry’s income, and use her boyfriend’s income to pay off his student loan debt.  That is a fairly explicit declaration that, although he will be responsible for paying off the debt, she will be responsible for supporting him.  In New Jersey, such an arrangement in combination with other facts could be used to show that she was the supporting spouse during the marriage and that he is entitled to alimony in the event of their divorce – and what’s more, entitled to alimony in an amount that would allow him to continue devoting his entire income to paying off his student loan debt.

Certainly, it’s important to “get financially naked” with your husband or wife – after all, you need to be transparent with one another so you can financially plan for your future.  But in the event of a divorce, it’s also important to realize that the way you dealt with pre-marital student loan (or other) debt during your marriage may have an impact on the outcome of financial issues attendant to a divorce.

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Insurer Under “Claims Made” Policy Issued to Sophisticated Insured Need Not Show Prejudice From Late Notice of Claim in Order to Disclaim Coverage

Templo Fuente De Vida Corp. v. Nat’l Union Fire Ins. Co., ___ N.J. ___ (2016).  Insurance policies normally require insureds to provide timely notice of claims against them to their insurer.  If timely notice is not given, the insurer may be able to deny coverage based on the insured’s breach of policy obligations. In this […]

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How Community Associations Can Collect on Judgments by Way of Wage Garnishment

Once association counsel obtains a personal Judgment against a unit owner for failure to pay maintenance fees, late fees, attorneys’ fees and costs, and other charges, we look for ways to collect on the Judgment. One method of collecting on the Judgment is by garnishing the unit owner’s wages.

The process starts by conducting an employment search. Once we find that a unit owner is employed, we file a Notice of Application for Wage Execution, Order, Certification and Execution against Earnings pursuant to 15 U.S.C. 1673 and N.J.S.A. 2A:17-56. After a judge signs the Order allowing for the wage execution, the case is assigned to a Court officer. The Court officer then takes the Order and serves the unit owner’s employer with a copy of the Order. The Order has specific instructions to the employer mandating him/her to garnish the unit owner’s wages. In no event shall more than 10% of the unit owner’s gross salary be withheld.

The employer is ordered to deduct a certain amount from the earnings and to pay that sum over to the Court officer. Once the Court officer receives the monies, he/she forwards the check to association counsel, and this process continues until the Judgment amount, plus Court officer commissions, is paid in full.

Many times, once a unit owner notices that his/her wages are being garnished, they contact association counsel to pay off the Judgment amount, so that the association will put a stop on the wage garnishment process. Either way, we find the wage garnishment process to be an effective method of collecting on Judgments.

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Financial Abuse: The Invisible Wounds of Domestic Violence

When most people hear the horrific phrase “domestic violence”, they think only of the physical abuse or threats of physical abuse inflicted upon another; however, financial or economic abuse exists in approximately 98% of all domestic violence situations, according to the National Network to End Domestic Violence.

Financial or economic abuse is defined as “making or attempting to make a person financially dependent”. In order to accomplish this form of dependency, an abuser may resort to the following tactics:

• Maintaining sole title and control over bank accounts, real property or other assets;
• Withholding or restricting access to money;
• Making all major financial decisions without consulting the victim;
• Refusing to put the victim’s name on joint assets or removing the victim’s name from previously joint assets so that the victim does not have any knowledge of the family’s resources, or own any assets/property;
• Using the victim’s personal identity information (such as Social Security number) to open credit card accounts or obtain loans, which are then never paid (destroying the victim’s credit);
• Forcing the victim to co-sign credit card accounts or loans;
• Forcing the victim to sign a power-of-attorney so that the abuser can sign legal or financial documents on the victim’s behalf, without their knowledge;
• Forcing the victim to cash-in assets in his/her name only, and turn them over to the abuser;
• Placing the victim on an “allowance”;
• Forcing the victim to account for all money spent, including providing proof such as receipts;
• Forcing the victim to beg for money to meet basic needs, such as food, clothing or shelter, yet spending money freely on him/herself;
• If the victim is employed, forcing him/her to turn over all earned income/paychecks to the abuser;
• Harassing the victim at work or threatening the victim’s employer with the intention to get/have the victim fired (and therefore cannot work and earn money);
• Isolating the victim from the family, friends and support system and/or turning others against the victim;
• Preventing the victim from attending school or job-training programs;
• Preventing the victim from obtaining employment, thereby forcing the victim to be totally dependent; and/or
• Threatening the victim that if they leave they will never see the children again and will never win a custody dispute if they go to Court.

Financial abuse typically starts out slowly, and may not even be recognizable at first. Simple statements such as “let me handle the finances, you have enough to worry about” or “since I’m better at saving, let me maintain our bank accounts”, evolve into situations where the abuser has gained a total financial stronghold over the victim.

The number one reason victims of financial abuse remain or return to abusive relationships is because they do not have the financial resources to escape. Thus, victims of financial abuse are caught in an inevitable Catch 22: either they stay in the abusive relationship (physical, emotional and/or financial abuse) or they leave and risk becoming impoverished and/or homeless because they do not have the financial wherewithal to even obtain a bus ticket. Worse, if the abuser has incurred debt under the victim’s name and/or destroyed their credit, the victim will not even be able to obtain housing, a credit card, a cell phone or even certain jobs. It’s no wonder victims choose to stay in unhealthy situations.

Moreover, abusers often manipulate the victim into believing that they cannot leave because they will not survive without them; however, the situation becomes even more contentious when children are involved. Abusers often threaten victims that if they leave, they will “never see their children again”, they will call child protective services and/or utilize the court system to gain custody. Unfortunately, victims have no reason to believe otherwise. Contacting a knowledgeable family law attorney can help alleviate some of the fiction perpetrated by abusers, which usually has no basis in law, and a skilled practitioner can help you take the first steps into protecting yourself and your children, and rebuilding your life.

Victims of domestic violence should be aware of their legal and other options. Below is a list of some New Jersey based resources:

• State of New Jersey Department of Children and Families, Domestic Violence Services
• New Jersey Coalition to End Domestic Violence
• An Abuse, Rape and Domestic Violence Aide and Resource Collection (A.A.R.D.V.A.R.C.)
• Legal Services of New Jersey

If you or someone you know is a victim of financial domestic violence, below is an excerpt from the Forbe’s article ‘I’ll Take Care of the Bills’: The Slippery Slope Into Financial Abuse (see citation below) that provides a strategy for victims of financial abuse to start breaking the cycle:

1. Learn more about it to see if your situation matches the description. Find a checklist online, such as this one, this one, this one or this one.
2. If you believe you are a victim, start organizing important financial and personal documents such as bank statements, birth and marriage certificates, etc., and store them with friends or family or in another secret, safe location outside of your home.
3. Earn extra money however you can, and keep it with a trusted person or in a secret location, so you can rely on this when you leave.
4. Get a free copy of your credit report at Annual Credit Report. Report or dispute any fraudulent charges.
5. Create a budgetso you know how much your housing, food, transportation and other expenses will cost when you leave.
6. Change your PIN codes and passwords so your abuser can’t access your financial information or track your activity.
7. Check out resources like URI NYC, The National Domestic Violence Hotline(1-800-799-Safe (7233)) and Safe Horizon.

Resources used for this article:

1. Shin, Laura. “‘I’ll Take Care of the Bills’: The Slippery Slope Into Financial Abuse.” Forbes. 19 March 2015. Web 05 Feb. 2016.
2. Triffin, Molly. “The Warning Signs of Financial Abuse.” Daily Worth. 20 July 2015. Web 05 Feb 2016.
3. Purple Purse; http://purplepurse.com/

 

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The Third Circuit Still “Leads” in Fewest Oral Arguments, as Well as in Fewest Published Opinions

I have posted before about the relatively low percentage of Third Circuit appeals in which oral argument is heard.  The latest statistics show that little has changed in this regard. Matthew Stiegler has a detailed post about this at his CA3 Blog.  His analysis also shows that the Third Circuit publishes fewer opinions than other […]

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A Tri-Parenting Conundrum and the Evolution of Custody and Parenting Time

In the recently published 67-page trial court decision of D.G. and S.H. v. K.S., the trial court dealt with the novel issue of custody and parenting time in a “tri-parenting” relationship. In that matter, D.G. and his husband, S.H., along with their friend K.S. embarked on a journey of conceiving and raising a child together. The parties agreed to use D.G.’s sperm and K.S.’s egg, as they had known each other longer, and they would give the child S.H.’s surname. During K.S.’s pregnancy, the parties had two baby showers, one at D.G. and S.H.’s Manhattan apartment, and one at K.S.’s home in Point Pleasant, New Jersey. All three parties attended parenting classes and began preparing both of their homes for the child’s arrival, purchasing everything in duplicate.

After the child, O.S.H., was born in 2009, D.G. and S.H. moved into K.S’s home in Point Pleasant and all three parties co-parented the child. D.G. operated a business at the Jersey Shore and, shortly after giving birth, K.S. returned to her job at her family’s restaurant. S.H., a high-school teacher, undertook the significant portion of the parenting responsibilities as he was on summer recess.

At the end of the summer, D.G. and S.H. rented a home in Point Pleasant to be near K.S. Thereafter, parenting time fluctuated, but was successful. In the summers, D.G. and S.H. undertook the significant portion of parenting time responsibilities due to K.S’s job responsibilities, and in the winters, K.S. undertook the significant portion of parenting time responsibilities, including taking the child to Costa Rica, where she owned a home, for varying amounts of time. In 2012, Superstorm Sandy destroyed D.G. and S.H.’s rental home, so they began enjoying weekend parenting time in New York City.

The parties were able to effectively and efficiently co-parent with one another for most of the child’s early life; however, things broke down when K.S. announced that she had fallen in love with her neighbor in Costa Rica, A.A., who she intended to marry, and that she wanted to relocate with the child to California where A.A. resided. A.A. could not relocate to New Jersey due to parenting obligations to children he had from a prior marriage.

D.G. and S.H. requested that K.S. prepare parenting time proposal for them so they could determine if the relocation would work together with their idea of “tri-parenting”. K.S. prepared a parenting time proposal and after considerable discussion, D.G. and S.H. rejected it. D.G. and S.H. then filed a Complaint seeking to establish 1.) legal and physical custody of O.S.H.; 2.) parenting time; and 3.) that S.H. was the child’s psychological and legal parent. K.S. filed a counterclaim and answer seeking 1.) to establish a legal custodial relationship between the parties, with physical custody vested in K.S.; 2.) to establish a parenting time arrangement; 3.) child support and medical coverage; and 4.) permission to relocate with the child to California.

A plenary hearing was scheduled and took place over 19 days.

Psychological Parentage of S.H.

S.H. sought an order declaring him to be the psychological parent of the O.S.H., which was supported by D.G. K.S. stipulated that S.H. was the child’s psychological parent on the eve of trial and the court found that the undisputed facts of this matter supported such a conclusion.

In order for a person to be considered a child’s psychological parent, there must be a finding of “exceptional circumstances” (See V.C. v. M.J.B., 163 N.J. 200, 219 cert. denied. 531 U.S. 926, (2000)). To find that “exceptional circumstances” exists, the Court must find the existence of four elements:

(1) that the biological or adoptive parent consent to, and fostered, the petitioner’s formation and establishment of a parent-like relationship with the child; the legal parent must have fostered the formation of the parental relationship between the third party and the child;

(2) that the petitioner and the child lived together in the same household’

(3) that the petitioner assumed the obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing toward the child’s support without expectation of financial compensation [a petitioner’s contribution to a child’s support need not be monetary]; and

(4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature. (See V.C. v. M.J.B. at 223).

The court detailed at great length, all of the actions undertaken by S.H. and concluded that he is appropriately the child’s psychological parent. Among some of the court’s considerations were the fact that D.G. and K.S. consented to and fostered a parent-like relationship between S.H. and the child,  the idea that all three of the parties would be the child’s parents was formed before the child was even conceived or born, the parties chose to give the child S.H.’s surname, and since the child was born, and over the course of the past six years, S.H. contributed towards the child’s support, both monetarily and otherwise, and established a bond with the child.

Residential and Legal Custody

Once the court has established the existence of a psychological parent, the best interest of the child must be considered when determining custody. The court found that since there was never a written agreement or prior court order regarding custody, the court must determine the custodial relationship that serves the best interests of the child, and evaluate the factors set forth in N.J.S.A. 9:2-4(c). Both Plaintiffs and Defendant hired custody experts, who evaluated each of the parties and the child. The court conducted a detailed, lengthy analysis of the factors set forth in N.J.S.A. 9:2-4(c), and upon doing so, ultimately concluded that D.G., S.H. and K.S. should have equal legal and residential custody of the child, and the court established a 50/50 parenting time schedule. Although rare, joint residential custody is a suitable alternative to sole custody in family law actions, when “joint custody is likely to foster the best interests of the child in the proper case.” See Beck v. Beck, 86 N.J. 480, 488 (1981). The analysis of the factors set forth in N.J.S.A. 9:2-4(c) is quite expansive and delves deep into the loving and caring relationship the parties share with the child.

Relocation and Removal Application by Defendant

The Court reviewed K.S.’s application to relocate with the child to California under the O’Connor standard for relocation, which applies in this situation as the Court determined that all of the parties shall share joint legal and residential custody. “If, the parents truly share both legal and physical custody, an application by one parent to relocate and remove the residence of the child to an out-of-state location must be analyzed as an application for a change of custody, where the partying seeking the change in the joint custodial relationship must demonstrate that the best interests of the child would be better served by residential custody being primarily vested with the relocating parent. O’Connor v. O’Connor, 349 N.J. Super. 381, 385 (App. Div. 2002).

The court opined that K.S.’s reasons for the move to California are at best tentative and speculative, including a major change in her living situation with A.A. (originally K.S. was going to live with A.A. and now is not), her employment and educational plans (K.S. intends to find part-time work and go to school part-time), her availability to care for the child and her lack of family support to help with the child’s care, among other things. Additionally, the child would be uprooted from her long and stable living arrangement with the parties and the distance between California and New Jersey would diminish the child’s ability to maintain her bond with D.G. and S.H., exclude them from her daily life activities and abrogate frequent parenting time. Thus, the court denied K.S.’s application to relocate with the child to California.

Legal Parentage

S.H. also sought to be established as the legal parent of O.S.H., not just the psychological parent. However, this was denied as a matter of law on the basis that the court does not have jurisdiction to create a new recognition of legal parentage other than what already exists—genetic contribution, adoption, or gestational primacy. Further, although the best interest of the child standard is used for various family law determinations, it is not a factor in defining parenthood under the Parentage Act. (N.J.S.A. 9:17:38 through 9:17-59).

While the court was sympathetic to S.H.’s request to establish legal parentage, same is not supported by statute or case law. Since such a determination would likely have far-reaching implications, the court determined that this issue is best addressed by other branches of government, specifically the Legislature.

In a world where the nuclear family has evolved into many different shapes and sizes, the law (and the courts) quite simply cannot keep up. With the evolution of today’s family, “tri-parenting” and other, similar custody and parenting time situations will emerge, creating a new, unique set of issues for families who are dissolving/separating. As the role of “parent” expands, it will be interesting to see how the courts will progress to handle these delicate issues.

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Sports Authority Looks to be the Next Big Tenant Chapter 11 Bankruptcy Filing

Sports Authority, Inc. (“Sports Authority”) appears to likely be the next big tenant Chapter 11 bankruptcy filing. Recent reports are indicating that the sporting and apparel chain is preparing to file for Chapter 11 bankruptcy protection, as debt payments are due in 10 days, according news reports from Bloomberg Business and other outlets. Of its 450 stores,Bloomberg reports that Sports Authority plans to close as many as 200 locations within a bankruptcy proceeding.

Sports Authority was once the biggest sporting-goods chain in the U.S, but over the past few years has had difficulty competing with Dick’s Sporting Goods Inc., Lululemon Athletica Inc., Gap Inc.’s Athleta, and Amazon.com Inc.

Landlord’s Questions

If you are a landlord, it’s a good idea to review your accounting and call any defaults that may exist. Furthermore and operationally, you may want your property manager to speak with the store manager to obtain important security code, HVAC, and utility information, if you don’t already have it on hand. If a store is rejected or abandoned in a bankruptcy proceeding you don’t want to be scrabbling for that information after the fact.

If Sports Authority does file for file bankruptcy protection, some vital questions are: (1) Will they remain a tenant?; (2) When will rent be paid?; (3) Are there pre-petition claims that are owed?; (4) Is there Debtor in default of pre petition non-monetary obligations?; and (5) What other damages are owed (both pre- and post-petition)?

Trade Creditor Questions

Trade creditors, including suppliers, should also be asking important questions such as: (1) Have you been paid on time and does a reclamation claim (right to take back goods shipped, unpaid within 45 days) exist?; (2) Can an administrative claim be asserted?; and (3) Should a proof of claim be filed, and if so, how?

It’s a good idea for commercial landlords and trade creditors to speak with bankruptcy counsel now to formulate and execute a plan in the event of the likely bankruptcy filing. Stark & Stark’s Creditor’s Rights Group can help. Our bankruptcy attorneys regularly represent landlords throughout the country, including recently in the District of New Jersey, Southern District of New York, District of Delaware and Eastern District of Pennsylvania on a variety of issues. For more information the Sports Authority filing, and how Stark & Stark can assist you, please contact Thomas Onder, Shareholder at (609) 219-7458 or tonder@Stark-Stark.com. Mr. Onder writes regularly on commercial real estate issue and is a member of ICSC and Chair of the 2016 ICSC PA/NJ/DE Next Generation Committee.

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Custody and the Psychological Parent

As far as families are concerned, there is a long-standing legal principle which generally permits parents to raise their children as they see fit without governmental interference. While that typically remains true, our courts are also granted inherent “parens patrie” authority, by which they are charged to protect the welfare and best interests of minor children within their jurisdiction.

In Family Law, these principles do not always comfortably coexist, and will sometimes collide. For purposes of this discussion, I will focus on the interplay between both principles, in terms of a person other than a natural parent who is seeking custody. Such a person is often referred to as a “psychological parent.”

When natural parents compete for custody, our courts are instructed to apply a “best interests of the child” standard. In such cases, the parents initially stand in equipoise; however, when a person other than a natural parent seeks custody the court must initially determine whether “extraordinary circumstances” exist, in which case the court will then apply the “best interests” standard.

The burden of proving extraordinary circumstances is upon the alleged “psychological parent.” Factors used by the court in such regard include whether the natural parent has consented by his or her conduct to the other person’s “parental” status (to include implied consent by lack of involvement in the child’s life), whether the person seeking custody has actually undertaken the day-to-day responsibilities associated with being a parent, and whether a sufficient psychological bond exists between the child and that person. This last issue in particular almost always involves expert evaluations and testimony.

Such disputes are always fact-sensitive and legally challenging. In cases of this sort, is essential that all parties be represented by experienced family law attorneys who are familiar with the issues discussed above.

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A Tale of Due Process…

Although most people are familiar with the concept of “due process” in the criminal context, we sometimes forget that due process also extends to civil litigation. “Due process” is basically the opportunity to be heard at a “meaningful time and in a meaningful manner”.

Typically, whenever a litigant is seeking relief from the Court, a motion must be filed, stating the time and place when it will be presented to the Court, the grounds upon which it is made and the relief sought. Although litigants may also seek emergent relief, notice must still be provided to the other party. While the notice requirement is not wholly inflexible, it may only be waived in circumstances where it can be shown that immediate and irreparable damage will likely result to the moving party before notice can be served/informally given and a hearing had thereon.

A common example of this in the matrimonial context is when a litigant is seeking to ask the Court to freeze assets because of a fear that the other side may liquidate or abscond with marital assets. Obviously, if the other side were first notified of this request, they would have the opportunity to do just that: liquidate or abscond with the assets. Thus, in very limited circumstances, the notice requirement will be waived, however, only a temporary order would issue and the other side would then be given the ability to immediately be heard by the Court as to why the relief sought should be ultimately granted moving forward.

In the recent published (precedential) case In the Matter of the Adoption of a Child by M.E.B. and K.N., the Appellate Division gave us a primer on the bounds of due process in a civil context. A short summary of the facts are as follows: The paternal grandparents of a child filed a Verified Complaint for Adoption after what they describe as a “verbal and implied consent of the child’s birth parents, who refused to contribute to or provide for the needs of the child”, essentially abandoning the child to their care.

Once the Complaint was filed, a preliminary order was issued for a hearing and the child was temporarily placed in the paternal grandparents care. Upon receiving this order, the child’s mother, filed an ex parte (i.e., without notice to the grandparents) Order to Show Cause refuting the allegations of abandonment asserting that she never relinquished her parental obligations. The child’s father also supported the return of the child to the mother’s care and for his parents to be restrained from further contact of the mother and the child.

The Court held the hearing on the mother’s application ex parte, again, without the paternal grandparents having notice of the hearing or a chance to be heard. The Court ultimately found that the paternal grandparents lacked standing and dismissed their Complaint for adoption with prejudice. The plaintiffs’ appealed the dismissal of their Complaint given the lack of opportunity to be heard prior to their Complaint being dismissed.

In recognition of a litigant’s right to due process, the Appellate Division reversed and remanded this matter for further proceedings finding,

It is one thing to schedule ex parte review of an application initiated by an order to show cause that also seeks temporary restraints; it is quite another to terminate the litigation on an ex parte basis. If a party demonstrates the need for ex parte relief, the judge considers the matter on the record and, upon a specific finding that immediate and irreparable harm would result were notice given, could issue an order to show cause. The adverse party must then be given an opportunity to be heard, including the chance to show injunctive relief was inappropriate or improvidently granted.

The Appellate Division found that the grandparents were not served with the mother’s pleadings and were not informed that a hearing would be held. Although, as noted above, there are situations in which it can be found that immediate and irreparable harm would occur if notice was given prior to the hearing, no such finding was made and could not be inferred from the record on appeal.

When an injunction is requested, the proceeding to consider the order to show cause with restraints must be on the record, requisite findings supporting relief must be made, and the adverse party must be given an opportunity to be heard on the scheduled return date. Even when restraints are not entered, the adverse party must be given the opportunity to respond to the entry of an order to show cause.

The takeaway from this case is that if you find that an Order has been entered in your case without notice to you and the opportunity to be heard, you should immediately consult with experienced counsel to determine the validity of that order and whether it can be ultimately challenged.

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Lauren K. Beaver is a contributor to the New Jersey Family Law Blog and an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices out of the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, support, equitable distribution, custody, and parenting time. Lauren also offers mediation services to those looking to procure a more amicable divorce. Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

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The Lawyer the Liar

The way things have gone lately, I thought it was time to reprise this blog post, originally published in April of 2014.  It is unfortunate for the system and the litigants to have to endure the misrepresentations by people who should know better.

I like a good joke as much as the next person.  That said, like many in my profession, I get sensitive about lawyer jokes.  Often, they are just cheap shots that in no way reflect the reality of what most of us do.  I particularly despise this one, “How can you tell when a lawyer is lying? His lips are moving.”

This one is particularly offensive on many levels.  Justice cannot tolerate dishonesty on the part of the lawyer.  In fact, honesty permeates the Rules of Professional Conduct:  meritorious claims and contentions; duty of candor to the tribunal; fairness to the opposing party and counsel; truthfulness in statements to others; not engaging in conduct that involving fraud, deceit, dishonesty, mispresentation or that which is prejudicial to the administration of justice are just a few of the rules where the bedrock is the lawyer being truthful.  There is an expectation in the system that someone is not telling the truth.  That is why judges and juries have to determine who is more credible.  That said, a lawyer cannot allow their client to get on the stand and lie.

(photo courtesy of free Google images.)

Unfortunately, however, lawyers lie all of the time.  Small lies and big lies.  They lie to their adversaries and they lie to judges.  I am not talking about an honest mistake – you believed that documents were not provided, but they actually were.  That said, too few people will even admit to the honest error, and then perpetuate the side show rather than just acknowledging that they were wrong with a lower case “w.”  Efforts then digress into addressing the misrepresentation that could simply be avoided.

A few years back, I was new to a case and at a case management conference, the other side alleged that my client had not produced his tax returns.  I did not believe this to be true and said as much, but I had only been in the case for a few days.  The judge reamed my client.  When I got back to my office, I contacted prior counsel who not only confirmed that the tax returns were produced, but there were emails from the adversaries office confirming receipt.  Given that my client had just been ripped by the judge, I asked the adversary to simply correct what must have been an inadvertent mistake.  She refused and then it became a much bigger issue.  It was a total and needless waste of time.

That’s a small lie that caused damage.  What about the big lie?  In one matter, opposing counsel insists that he was called “stupid” in a letter from one of my colleagues, and worse yet, that that letter justifies his vendetta against our client.  The problem is that no such letter exists yet he persists in pursuing this phantom letter, to the detriment of his client and ours.

In another matter, a lawyer denied taking a position on a major issue in the case in an earlier motion, even after the transcript showed otherwise.  She disavowed her own statement.

In another matter, the adversary epitomizes the distasteful joke noted above, from telling a court that documents were signed to allow us to get documents, when they were not, to misrepresenting income, to denying events that are not deniable, and on and on.

Why do lawyers lie?  Some do it to get an advantage in the case.  Some do it because they are afraid of losing the client if they don’t do their client’s bidding and/or are unsuccessful.  Some do it because it is a personal game – I win – you lose.  Some do it because they are unprepared or did not do what they are supposed to do so they are covering up.  Some do it to cover for their client’s misdeeds. Some do it because they just always lie.  For some, it is all of the above.

What do you do about it?   You raise the issue to the judge – but often, the judge doesn’t do anything about it.  Some times, it takes a trial to prove it and trials are few and far between.  Further, ethics complaints are usually tabled if not dismissed until a litigation is over.  If the perpetrator is a junior lawyer, perhaps you speak to their supervisor – but often that goes no where, because people protect their own.

That said, don’t let it go.  Call the person out.  Be prepared with your proofs.  At the appropriate time at a motion or a trial, let the judge know. Litigation is hard enough when people play it straight.  It is untenable when they lie and it does a disservice to the litigants, the courts and the system.  Moreover, clients are outraged when their spouse lies, but when it is the other lawyer, it is often impossible to control the justifiable outburst.  And lawyers, if you accidentally misspeak or make an honest mistake – you are human – it is better to own up to it and put the issue to bed then let it fester into something unnecessary and totally avoidable.  And don’t tell the big lie, for any reason.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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How Community Associations Can Collect on Judgments by Levying Bank Accounts

Once association counsel obtains a personal Judgment against a unit owner for failure to pay maintenance fees, late fees, attorneys’ fees and costs, and other charges, we look for ways to collect on the Judgment. One method of collecting on the Judgment is by levying a unit owner’s bank accounts.

The process starts by association counsel conducting a bank account search. If the search reveals that a unit owner has a bank account, it will also provide the balance of the bank account. If the balance on the account is worth pursuing, we file an Execution against Goods and Chattels. A judge will review and sign the Execution against Goods and Chattels, authorizing a Court officer to levy on the bank account of the unit owner in an amount up to the Judgment amount, plus Court officer commissions and other Court costs. Once the Order is signed, the case is assigned to a Court officer.

The Court officer will then serve the bank with the Execution against Goods and Chattels. At that point, the bank freezes the account in the amount set forth in the Execution, or in a lesser amount if there is only a lesser amount in the bank account. The Court officer will then notify association counsel that the funds have been levied. Association counsel then files a Motion to turn over funds that were levied. The Motion places the unit owner on notice that the funds in his/her bank account are about to be turned over to the association. Once the Order to turn over funds is entered, it is served upon the Court officer, who will then forward the monies to association counsel.

Sometimes we are fortunate that a bank account has a balance high enough to satisfy the Judgment, however, more often than not, the balance at a particular time is not high enough to satisfy Judgment, so the bank account must be levied several times. We find that levying bank accounts is an effective way to collect on Judgments.

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Evangelides Memorial Lecture on February 9 at Rutgers University- “Class Action Litigation: Who Benefits?”

I have been tapped to deliver the 27th Annual Alice and Stephen Evangelides Lecture at the Eagleton Institute of Politics in New Brunswick on February 9 at 8 P.M.  The topic will be “Class Action Litigation:  Who Benefits?” The lecture focuses each year on an issue of public law.  Past speakers have included Professors Gerald […]

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Wrongful Denial of a Trial Adjournment, and Other Flaws, Lead to Reversal of a $2 Million Plaintiff’s Verdict

Berkowitz v. Soper, ___ N.J. Super. ___ (App. Div. 2016).  In this auto accident case, defendant was unexpectedly hospitalized for a “heart issue” two business days before trial was to begin.  Defendant sought to adjourn the trial  briefly so that she could testify there, or at least be present.  That was her first request for […]

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Kevin A. Falkenstein & SJYPA Presented Award by Local Big Brothers Big Sisters Organization

Stark & Stark Associate Kevin A. Falkenstein, member of the Family Law Group, attended the Burlington, Camden & Gloucester County Big Brothers Big Sisters Appreciation Dinner, where the South Jersey Young Professionals Association (SJYPA) was presented with the Community Leadership Award. Mr. Falkenstein is a board member of the SJYPA.

The organization was presented with the Community Leadership Award for the last year’s fundraising efforts on behalf of Big Brothers Big Sisters. In 2015, the SJYPA organized two separate fundraising events to benefit the nonprofit in July and October.

The SJYPA is considered South Jersey’s largest organization of young professionals, all dedicated to making a positive impact in their community. The Big Brothers Big Sisters Appreciation Dinner was held at the Salvation Army Kroc Center in Camden, NJ. Previously, the Kroc Center was the first major recipient of the SJYPA’s fundraising efforts, all told donating over $240,000.

For more information about the SJYPA, you can click here, and for more information about the Burlington, Camden & Gloucester Big Brothers Big Sisters, you can click here.

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