Can an Agency Respond to an OPRA Request by Neither Confirming Nor Denying That Requested Documents Exist?

North Jersey Media Group, Inc. v. Bergen County Prosecutor’s Office, ___ N.J. Super. ___ (App. Div. 2016).  The answer to the question posed in the caption of this post is, according to Judge Espinosa’s opinion today, “yes,” but only “when the agency (1) relies upon an exemption authorized by OPRA that would itself preclude the […]

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Failure to File State Court Appeal of Municipal Land Use Board Decision Barred Appeal in Federal Court

DePolo v. Tredyffrin Tp. Bd. of Supervisors, ___ F.3d ___ (3d Cir. 2016).  Jeffrey DePolo is a ham radio enthusiast in Pennsylvania.  He applied to defendant Zoning Hearing Board of Appeals (“ZHBA”) for a variance that would allow him to place a 180-foot antenna on his property so that he could communicate with other ham […]

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A Reminder From the Appellate Division About Recent Appellate Rule Changes

This morning, the Appellate Division published a notice to the bar that was dated August 26, 2016.  That notice is available here.  The intent of the notice is to highlight certain rule changes that will become effective on September 1, 2016.  Those changes, discussed in detail here, require that the appellant’s brief include a table […]

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Claims of Non-Debtors Alleging Harm From Filing of Involuntary Bankruptcy of Debtor are Not Preempted by the Bankruptcy Code

Rosenberg v. DVI Receivables XVII, LLC, ___ F.3d ___ (3d Cir. 2016).  As Judge Ambro noted in his opinion in this case today, an involuntary bankruptcy is one that is commenced by creditors, essentially forcing a debtor into bankruptcy proceedings.  Section 303(i) of the Bankruptcy Code provides, however, that if an involuntary bankruptcy petition is […]

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Latest on medical marijuana

State and Federal laws have Medical Marijuana patients and providers in limbo

Potential Issues That May Arise When Contesting a Will

Stark & Stark Shareholder Paul W. Norris authored the article “Contesting a Will: Best Practices for Successful Probate Litigation,” which was published on NJ.com on June 24, 2016. The article explains the process of what typically will happen if a will is contested after a loved one passes away. This process can only begin once “the named executor or executrix in the will then files this document with the county surrogate.” This process is called “admitting the will to probate,” and starts a process on a specific time schedule that must be followed in order to properly submit any contestations of the will.

Recently, Mr. Norris also recorded an educational video that discusses the process of contesting a will as well as the issues that may arise. You can watch the video below.

 

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PROSPECTIVE RETIREMENT APPLICATIONS: HOW SOON IS TOO SOON?

As avid readers of this blog know, New Jersey’s recently amended alimony statute has been the inspiration for many blogs posts as cases interpreting same are coming down the pike. Under the amended statute, a party may seek to terminate or modify his or her spousal support obligation based upon an actual or “prospective” retirement. While this was seemingly good news for those seeking to retire, the question many practitioners had was what does “prospective” actually mean?

In the case of Mueller v. Mueller, Judge Lawrence Jones provides some insight as to this very question. The facts in Mueller are simple. The parties were married for twenty (20) years, divorcing in 2006. Under the parties’ Marital Settlement Agreement, the obligor was to pay $300.00 per week in permanent alimony and their agreement did not expressly address retirement or its relationship to the alimony obligation.

The obligor filed a post-judgment motion, under New Jersey’s amended alimony law, seeking a determination that his alimony would end in five (5) years. At the time of the hearing, the obligor was 57 years old. In five years, he would be 62 and entitled to receive his full employment-related pension benefit. The obligor asserted that if his alimony does not end at that time, that he will be unable to retirement at that age.

Judge Jones provides a thorough analysis of the obligor’s claim, specifically discussing the distinction of a pre-September 2014 agreement modification/termination analysis (where the burden is on the obligor to demonstrate why alimony should terminate) vs. a post-September agreement modification/termination analysis (where there is a rebuttable presumption of termination with the burden on the recipient).

He also notes that the amended statute covers the situation where an obligor wishes to retire earlier than “full retirement age” as defined by the receipt of full social security benefits”, which in this particular case would be 66 years and 8 months for the obligor. The rationale behind this provision is to avoid the proverbial “Catch-22” financial situation.

Specifically, if an obligor is considering the possibility of retirement in the near future, he or she logically benefits from knowing in advance, before making the decision to actually leave the workforce, whether the existing alimony obligation will or will not change following retirement. Otherwise, if the obligor first retires and unilaterally terminates his or her primary significant stream of income before knowing whether the alimony obligation will end or change, then the obligor may find him/herself in a precarious financial position following such voluntary departure from employment if the court does not terminate or significantly reduce the existing alimony obligation.

When applying the new law to the facts of the Mueller case, Judge Jones held:
• The spirit of the statute inherently contemplates that the prospective retirement will take effect within reasonable proximity to the application itself, rather than several years in advance.
o Thus, in this specific case, the request for an order prospectively terminating alimony five (5) years in advance does not lend itself to the Court being able to reasonably analyze and consider all relevant information. The Court warns about how an application too far in advance of prospective retirement could in essence be nothing more than an attempt to summarily change the terms of an alimony settlement agreement.

• An order for prospective termination or modification of alimony based upon reaching a certain retirement age inherently contemplates that the obligor not only reaches retirement age, but actually retires at that point. If the obligor reaches the age, but does not actually retire, the “retirement age” provisions do not trigger until such time as the obligor actually retires or submits an application regarding a prospective retirement in the future.

o Here, the obligor did not provide a specific plan but merely stated a desire to potentially retire in five (5) years, without anything more. While this case does not create a bright-line for when such applications should be brought, Judge Jones notes that a prospective retirement application brought, 12-18 months before prospective retirement, may be more appropriate.

The takeaway from this case is that while the amended alimony statute permits a degree of reasonable prospective adjudication by the court for a prospective rather than actual retirement, an attempt to engage in the necessary statutory analysis several years in advance of such retirement would likely be replete with long-term guesswork. Any such effort would essentially ignore the practical reality that the parties’ economic situations, health and other relevant factors may radically change over such a lengthy period of time, before an actual retirement ever takes place. If you are paying alimony and are within 12-18 months of retirement, you should think about consulting with an experienced professional to discuss your options regarding the termination or modification of your alimony obligation.

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Valuation or Calculation in a Divorce Case?

Many divorce cases include a determination of the value of a business for purposes of equitable distribution between the parties. Whether the business in question is a sole proprietorship, partnership, or corporation, establishing a sound and supportable value is essential.

The first step is to engage a skilled valuation analyst. The second and equally important step is to determine the appropriate level of service to be provided; that is, whether the analysis should be, in technical parlance, a “calculation of value” or a “full valuation.”

One not exclusive rule of thumb is whether the valuation report may ultimately be relied upon by a third-party, such as a Judge or an arbitrator. In such cases, a full valuation is more appropriate. In other settings, such as mediation, a calculation of value may suffice.

A full valuation will provide a greater certainty and reliability, but almost always takes longer and is more costly. Conversely, the time and cost savings for a calculation of value are offset by a more limited scope and lesser degrees of both certainty and reliability.

Not every divorce case warrants a full valuation at the outset, especially if the parties are inclined to find areas of compromise and agreement, rather than resistance and mistrust. Further, it goes without saying that some businesses are simply more complex than others, which may require a full evaluation. The decision on how to proceed is made on a case-by-case basis, depending on a variety of factors, including the parties’ interest in a more efficient closure than the judicial system can provide.

In all situations it is essential that the attorney be experienced in family law matters and that a high degree of teamwork exist between the client, attorney, and valuation analyst to assure a successful outcome.

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When Both Sides Claim to be a “Prevailing Party” Entitled to Attorneys’ Fees

Raab v. City of Ocean City, ___ F.3d ___ (3d Cir. 2016).  In this case under the Civil Rights Act, 42 U.S.C. §1983, both plaintiff and the defendant municipality claimed to be the “prevailing party” and therefore sought an award of attorneys’ fees under 42 U.S.C. §1988.  The case arose out of a physical confrontation […]

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In re Reglan Litigation: No Federal Preemption of State Law Claim That Generic Drug Carried Inadequate Warning

In re Reglan Litigation, ___ N.J. ___ (2016).  Plaintiffs in this mass tort matter claimed that defendants, who are generic manufacturers of metoclopramide, the generic version of the drug Reglan, were liable under New Jersey’s Product Liability Act, N.J.S.A. 2A:58C-1 to -11 (“PLA”), for failure to warn about the health effects of taking metoclopramide for […]

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When Does Child Support Begin?

There are many rules in our court system pertaining to the filing of pleadings. In order to start a divorce case in court, a Complaint for Divorce must be filed. The date the complaint is marked “filed” is generally the date we use for valuing assets and debts subject to equitable distribution. In order to obtain court-ordered relief during the pendency of a divorce case with regard to temporary child support, alimony, or other issues, a motion must be filed requesting such relief. Generally, relief is granted as of the date that the motion was filed.

In some cases we choose not to file a complaint right away, with the hope of settling the case prior to getting involved in litigation in the court system. In other cases, we may file a Complaint for Divorce in order to establish the cut-off date for equitable distribution, but our goal may be to stay out of court and try to settle the case without court intervention.

Regardless, child support begins either when the parties reach an agreement on this issue, or when a court enters an order. Many times, we can reach an agreement on temporary support (child support and alimony) while we exchange documents with a view toward overall settlement. Sometimes we can’t reach agreement, and there will be a need to file a motion with the court requesting temporary relief. This type of motion is called a Pendente Lite motion.

There is a New Jersey statute that prohibits retroactive modification of a child support order—meaning that when requesting modification of an order, the relief can only go back to the date the motion was filed. An initial child support award is not a request for modification, and, therefore, the statute that prohibits retroactive modification of child support doesn’t apply.

So, what happens if you don’t file a motion with the court right away requesting child support? In the case of Kakstys v. Stevens, the lower court held that a trial court may establish a child support obligation retroactive to the filing date of the divorce complaint. This makes perfect sense if the parties have been trying to work out their issues and no one files a motion for child support until many months after a Complaint has been filed because they hope to reach an agreement.

Since a divorce complaint requests child support in the prayers for relief, the other party has been put on notice that child support is an issue in the case. The Kakstys court noted that requiring a litigant to file a motion to preserve his or her right to child support is not in compliance with our public policy, which encourages settlement as opposed to litigation.

This case makes it clear that child support can be obtained retroactively to the date of the complaint. Unanswered is whether a court can award child support earlier than that date.

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Private Prisons vs. Federal Prisons

U.S Justice Department officials are in preparation to end the use of private prisons with allegations that facilities are less safe, less effective and overall offer fewer benefits.

The Supreme Court’s Busy August

In the last ten days, the Supreme Court, nearing the end of its term, has issued a number of opinions.  It has been hard to keep up with them all.  To catch up, here are brief summaries of the Court’s recent rulings: Meehan v. Antonellis, ___ N.J. ___ (2016).  In an opinion by Judge Cuff, […]

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Judge Jones Provides Some New Clarity Just Ahead of the NJ Emancipation Statute

Signed into law on January 19, 2016, New Jersey’s emancipation law is set to take effect on February 1, 2017 and will apply to all child support orders issued prior to or after its effective date.

One of the highlights of the new law is that it will dramatically impact when and how child support orders will terminate. Specifically, it provides that unless otherwise indicated in a court order or judgment, the obligation to pay child support shall terminate without order on the date a child marries, dies or enters into military service.

Child support will also terminate automatically when a child reaches 19 years of age unless (a) another age for such termination is specified in a court order, which shall not extend beyond the date the child reaches 23 years of age; (b) a written request seeking the continuation of child support is submitted to the court by a custodial parent prior to the child reaching the age of 19; or (c) the child receiving support is in an out of home placement through the Division of child Protection and Permanency in the Department of Children and Families.

Just ahead of the effective date of the statute, Judge Jones issued an opinion on the effect of one child’s emancipation in Harrington v. Harrington. In Harrington, the parties divorced in 2012. The parties have three children, all of whom were unemancipated at the time of the divorce. As such, the parties’ settlement agreement provided that the father would pay the mother the sum of $240 per week in child support for all three children. In what would become a decisive fact in the case for Judge Jones, he noted that the child support was unallocated, rather than broken down or allocated into specific dollar amounts for each child – either on a one-third per child basis or otherwise.

Following the divorce, the father paid child support as agreed without requesting an modifications, even when their oldest child began college. In September, 2014 the parties mutually agreed to emancipate their two oldest children. Two orders were entered confirming the emancipation, but the amount of child support that the father paid remained the same. Further, neither party submitted or exchanged updated financial information or filed any motion.
In June, 2015, the last remaining unemancipated child graduated high school and decided not to proceed to college. The father continued to pay $240 per week in child support nonetheless, without any objection by either party.

In February, 2016, a year-and-a-half after the first two children were emancipated, the father filed a motion for the retroactive allocation of child support to $80 per child, and downward modification of one-third per emancipated child, effective September, 2104. He also sought to emancipate the youngest child and terminate his obligation. The mother consented to the emancipation of the youngest child, but opposed the retroactive modification that the father sought.
With regard to the issue of retroactive emancipation, the Court initially grappled with which law to apply in this situation: should it apply the anti-retroactivity statute which prohibits the retroactive modification of unallocated child support, or does the case law with regard to retroactive emancipation apply?

In reaching its decision, the Court devised a set of equitable factors that should be examined:

1) How much time has passed between the date of one child’s emancipation and the filing date of the obligor’s present motion for retroactive modification of unallocated child support for the remaining unemancipated child or children?

2) What are the specific reasons for any delay by the obligor in filing a motion to review support based upon emancipation?

3) Did the non-custodial parent continue to pay the same level of child support to the obligee, either by agreement or acquiescence, and of his or her own decision and free will, even after he/she could have filed a motion for emancipation at a prior point in time?

4) Did the custodial parent or child engage in any fraud or misrepresentation that caused the obligor’s delay in filing a motion for emancipation and support modification motion?

5) If the non-custodial parent alleges that the custodial parent failed to communicate facts that would have led to emancipation and modification of support at an earlier date, could the non-custodial parent have nonetheless otherwise easily obtained such information with a reasonable degree of parental diligence and inquiry?

6) If the obligor’s child support obligation was unallocated between multiple unemancipated children of the parties, will a proposed retroactive modification of child support over a lengthy period of time be unduly cumbersome and complicated, so as to call into question the accuracy and reliability of the process and result?

7) Did the custodial parent previously refrain from seeking to enforce or validly increase other financial obligations of the non-custodial parent, such as college contribution for any remaining unemancipated child, because during such time period, the non-custodial parent continued to maintain the same level of unallocated child support without seeking a decrease or other modification?

8) Is the non-custodial parent seeking only a credit against unpaid arrears, or rather an actual return of child support already paid to, and used by, the custodial parent toward the financial expenses of the child living in the custodial parent’s home?

9) If the non-custodial parent seeks an actual return of money previously paid to the custodial parent, what is the estimated dollar amount of child support that the non- custodial parent seeks to receive back from the custodial parent, and will such amount likely cause an inequitable financial hardship to the custodial parent who previously received such funds in good faith?

10) Are there any other factors the court deems relevant to the analysis?

In applying the above factors to the present case, the Court considered the following factors: nearly a year and a half passed between the effective date of the emancipation for the older two children and the filing of the father’s motion; there was no reason provided to explain the delay in filing; during that period, the father continued to pay the same level of child support to the mother; there was no evidence submitted that the mother or the children engaged in any type of fraud; the mother and children communicated facts that would have led to a modification of support; and, a retroactive modification of support to 2014 may be unduly complicated given the fact that no financial information was submitted for the period of time in question – 2014-2016.

The Court noted that a hearing should to be scheduled to examine these factors and weigh the comparative equities to determine whether to exercise its discretion and retroactively modify unallocated child support prior to the motion filing date, based upon a prior emancipation of one or more children. However, the Court was somber in its knowledge that this would not be an easy task – i.e. to recreate what child support *might* have looked like over a two year period of time.
____________________________________________________________________________________
Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

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The Discovery Rule is Applied to Common Law and Consumer Fraud Act Claims

Catena v. Raytheon Company, ___ N.J. Super. ___ (App. Div. 2016).  The time when a cause of action accrues, for purposes of triggering the statute of limitations, is a recurring and often thorny one.  Most of the cases arise in the context of negligence cases.  Today’s decision, however, by Judge Ostrer, involved common law fraud […]

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Procedural Updates to Appellate Division Opinions and Forms

Today, the Appellate Division published a notice to the bar that was dated August 17, 2016.  That notice can be found here.  The notice advises of several procedural refinements that the Appellate Division is implementing. Any decision that includes a concurring or dissenting opinion will now state that fact “in the attorney appearance section of […]

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Shareholder John Eory Named “Lawyer of the Year” by Best Lawyers

Best Lawyers, published by Woodward/White, Inc., has named Shareholder John Eory, Co-Chair of the firm’s Family Law Group, as 2017 “Lawyer of the Year” for Family Law. Stark & Stark would like to congratulate Mr. Eory on this distinction.

“Lawyer of the Year” recognitions are awarded to individual attorneys with the highest overall peer-feedback for a specific Practice Area and geographic location. Only one lawyer is recognized as the “Lawyer of the Year” for each specialty and location (source).

John S. Eory dedicates his practice to divorce, custody, domestic violence, and other family law matters. He is the former Chair of the New Jersey Supreme Court District VII Ethics Committee. Additionally, Mr. Eory is certified by the American Academy of Matrimonial Lawyers (AAML) as a matrimonial lawyer. He is also a fellow of the AAML.

 

 

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*No aspect of this advertisement has been approved by the Supreme Courts of New Jersey. For more information and methodology please click here

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Stark & Stark Attorneys Recognized in 2017 “The Best Lawyers in America” Rankings

Best Lawyers announced “The Best Lawyers in America” rankings* for 2017, and 17 Stark & Stark attorneys have been named for the following practice areas: Bankruptcy and Creditor Debtor Rights, Bankruptcy Litigation, Commercial Litigation, Construction Litigation, Corporate Law, Family Law, Personal Injury Litigation for both Defendants and Plaintiffs, Real Estate Law, Trusts and Estates, and Workers’ Compensation Law.

Rankings for Best Lawyers are based on a rigorous evaluation process that is strongly rooted in peer-review, following an analysis of the feedback from Best Lawyers and a final eligibility check for all nominees. Attorneys can be nominated by anyone other than themselves.

For reference, here is the full list of Stark & Stark attorneys, along with their practice areas, that have made “The Best Lawyers in America” 2017 rankings:

Lawyer Name	Specialty
Albert M. Stark	Personal Injury Litigation – Plaintiffs
Allen M. Silk	Corporate Law
Arthur H. Kravitz	Workers’ Compensation Law – Claimants
Bruce H. Stern	Personal Injury Litigation – Plaintiffs
Daniel L. Haggerty	Real Estate Law
Donald B. Brenner	Litigation – Construction
Gary S. Forshner	Real Estate Law
Jeffrey M. Hall	Land Use and Zoning Law
John A. Sakson	Personal Injury Litigation – Plaintiffs
John S. Eory	Family Law
Kevin M. Hart	Commercial Litigation
Lewis J. Pepperman	Commercial Litigation
Maria P. Imbalzano	Family Law
Steven L. Friedman	Trusts and Estates
Thomas J. Pryor	Litigation – Construction
Timothy P. Duggan	Bankruptcy & Creditor Debtor Rights/Insolvency & Reorganization Law
Vicki W. Beyer	Workers’ Compensation Law – Claimants

 

 

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*No aspect of this advertisement has been approved by the Supreme Courts of New Jersey or Pennsylvania. For more information and methodology please click here.

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Standing and Mootness in a Ten Commandments Monument Case

Freedom From Religion Foundation, Inc. v. New Kensington Arnold School District, ___ F.3d ___ (3d Cir. 2016).  Federal standing law sometimes involves nuances inquiries comparable to the famous question of how many angels can dance on the head of a pin.  This opinion by Judge Shwartz involved a Civil Rights Act claim by plaintiffs (a […]

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Appeals of Family Court Judgments

For those unaware, after a Lower Court makes a final decision in a family court case, either party has a right to appeal that decision to the Appellate Court. A Notice of Appeal must be filed, along with any other relevant documents, within 45 days of the date of the entry of the Judgment.

The Appeal is based on the record and no new information is to be transmitted to the Appellate Division, and no testimony will be heard. The Appellate judges will review the underlying Order or Judgment, the transcript of the proceeding in the Lower Court (a typewritten volume which includes everything that was said in the courtroom by the attorneys, parties, other witnesses, and the judge), and the briefs submitted by the attorneys in the case arguing their client’s positions.

After the Appellate Court reviews the above, there is oral argument before the Panel so any questions can be answered. Once the Appellate judges make a decision, an Order is sent out.

The Appellate Court has three choices in deciding a case on appeal: it can affirm the Lower Court’s decision, it can reverse that decision, or it can reverse the decision and remand it to the trial court for further proceedings. In family court appeals, due to the issues that are generally appealed, if the Appellate Court reverses a decision, there is generally a remand.

If the proceeding was a divorce trial and if the entire Order is reversed and remanded, then a new trial on all issues must take place. If only a few issues are appealed and the Appellate Division reverses the Court’s award on those issues and remands, then the Lower Court will have a hearing/trial on just those issues.

Appeals take approximately one year from the date the Notice of Appeal is filed until the date you receive a decision. If the case is remanded, it will then take much more time, because you will be essentially starting over with regard to discovery and preparation for a new hearing/trial.

If you have a case or issues in your case that you believe should be appealed, it is imperative to consult with a lawyer immediately, given the short time frame for filing a Notice of Appeal.

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Supreme Court Will Review PERC, Foreclosure, and Statute of Limitations Cases

The Supreme Court announced that it has granted review in three civil cases (not to mention several more criminal cases, which will not in fact be mentioned here).  The first grant is from a published opinion of the Appellate Division, In re County of Atlantic, 445 N.J. Super. 1 (App. Div. 2016).  That ruling, which […]

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We voted to allow sports betting in NJ, Federal Court says "Good Try..."

NJ’s 2014 law legalizing sports betting and wagering has been struck down by a twelve-judge panel following an August 9^th ruling by the US 3^rd Circuit Court. The law, which allowed sports-related gambling at amateur, college, and “some” professional sporting events, was in direct violation of the Professional and Amateur Sports Protection Act, according to the federal appeals court.

Amendments to the New Jersey Appellate Rules of Court, to be Effective on September 1, 2016

Today, the Supreme Court published an order dated August 1, 2016, which announced amendments to various court rules, all of which will take effect on September 1, 2016.  That announcement can be found here.  Three appellate rules are affected.  All of the adopted amendments were discussed here, when the Court’s Civil Practice Committee made recommendations […]

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Stark & Stark Congratulates Dolores R. Kelley – NJBiz 2016 Forty Under 40 Award Recipient

Stark & Stark is proud to congratulate Shareholder Dolores R. Kelley for being selected by NJBiz as a recipient of the 2016 Forty Under 40 Award.

Dolores R. Kelley is not only a respected Shareholder at Stark & Stark, she is the Practice Leader for the firm’s Beer and Spirit Group where she is responsible for driving the team’s entity formation, intellectual property, licensing, real estate, finance and operations activities in the growing brewery, brew pub, and distillery marketplace. Ms. Kelley also handles a wide range of matters for the real estate industry, including commercial, transactional, condominium and homeowner association formation and leasing; and represents lenders in commercial loan transactions. Ms. Kelley joined Stark & Stark in September of 2008 and is admitted to practice law in New Jersey, New York, and Pennsylvania.

Ms. Kelley is an advocate for diversity in the legal profession recognizing the obstacles to entry and recognition in the field. She is an active member of the firm’s Diversity & Inclusion Committee, as well as a member of the firm’s Women’s Initiative. Her dedication to these important initiatives is not just limited to education, as she is a working mother of two children who not only manages to balance her life, but excels at it.

Ms. Kelley melds her family and business interests with her passion for others through her involvement in various community activities. She is a member of the Mercer County Board of Trustees for the Catholic Charities, Diocese of Trenton. She is also an active member of the organization’s Walk of Hope event committee, which raises money to promote strong families and reduce poverty.

As a member of the MIDJersey Chamber of Commerce and its Young Professionals Committee (YPC), where she served as Co-Chair from 2014-2015, Ms. Kelley partners with non-profit organizations dedicated to helping young professionals succeed and assisting those members of diverse classes in overcoming obstacles and leveling the playing field. In recognition of her many volunteer efforts, Miss Kelley was honored as the MIDJersey Chamber of Commerce Volunteer of the Month in March 2014.

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State Legislature OK's Pot for PTSD

NJ legislators gave the final “go ahead” to a bill that would allow those suffering from post-traumatic stress disorder or “PTSD” to obtain and utilize medical marijuana. PTSD is commonly experienced by military veterans, and a portion of the community believes it may be a step in the right direction towards ending veteran suicides, now at 22 a day. Although it still faces a “veto” opportunity by the Governor, a vocal opponent to marijuana legalization, he doesn’t appear extraordinarily motivated to do so this time around.

Patriotic to Politically Incorrect: EEOC Investigates 1775 War Flag

The US Equal Opportunity Commission, among its many other functions, determines the basis of claims as they pertain to workplace harassment. Through what they feel is the proper application of existing court rulings, they’ve already determined that wearing a Confederate insignia to certain workplaces is punishable by law and considered harassment. Now, the Gadsden flag, first used in the American Revolutionary War by Continental Marines has been deemed “under review” for its ‘level of racism’ by the EEOC.

Prosecutor Leaks Images of Public Defender: Smear Campaigns the trend of 2016

A breakdown in inter-office professionalism occurred when Deputy Public Defender Christina Behle of Los Angeles, California filed a lawsuit seeking damages against LA County District Attorney Lisa Tanner. The third actor? Deputy Public Defender Michael Tanner, the separated yet not divorced spouse of Lisa Tanner. The suit alleges invasion of privacy, negligent (and intentional) interference with “prospective economic advantage” and the intentional infliction of emotional distress.

New Jersey Lawyer Magazine’s August 2016 Issue is Devoted Entirely to Appellate Practice

The August issue of New Jersey Lawyer magazine arrived in my mail today.  It is a special issue devoted to appellate practice, with a total of thirteen articles on different aspects of that practice area.  [Disclosure:  One of those articles is by me, on the subject of “Certified Questions in the New Jersey Supreme Court.]  […]

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Rated 5 stars? Phony Reviews plague Internet

Have you ever Googled a product, or found a business on a page and noticed that it had an almost undeniable advantage over its competitors? “Rated “Insert Praise here” by what feels like 47,000 people?...

When Can an LLC Expel a Member?

IE Test, LLC v. Carroll, ___ N.J. ___ (2016).  Until it was superseded by the Revised Uniform Limited Liability Company Act, N.J.S.A. 42:2C-1 to -94 (“RULLCA”), on March 18, 2013, relationships among members of a limited liability company were governed by the Limited Liability Company Act, N.J.S.A. 42:2B-1 to -70 (“LLCA”).  Today’s decision, written by […]

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The Supreme Court Finds a Right to Counsel for Indigent Parents Opposing Private Adoptions

In the recent decision In the Matter of the Adoption of a Child by J.E.V. and D.G.V., the New Jersey Supreme Court unanimously held that:

[A]n indigent parent who faces termination of parental rights in a contested private adoption proceeding has a right to appointed counsel.  A poor parent who seeks to protect the fundamental right to raise a child, at a contested hearing under the Adoption Act, is entitled to counsel under the due process guarantee of the New Jersey Constitution.

In this important decision, the Supreme Court built upon the strong foundation of preservation of parental rights under the due process clause which it has maintained time and time again, noting that as a State, our jurisprudence and legislation have historically sought to provide greater protections to the fundamental due process rights of parents than even United States Supreme Court jurisprudence and federal legislation.

In the case at issue, the biological mother of the child in the matter had placed the child with a private adoption agency; however, after counseling, the biological mother decided she no longer wished to terminate her parental rights and began a service plan designed to reunite with her child.  Despite this, the private adoption agency began to make an adoption plan for the child and the potential adoptive parents instituted adoption proceedings over the biological mother’s written objections; she, in fact, objected in writing no less than three times.  After an adoption hearing at which the biological mother was self-represented because she could not afford counsel, her parental rights were terminated and a Judgment of Adoption was entered in favor of J.E.V. and D.G.V.

Interestingly, the Court found that despite the fact that the adoption agency in this case was a private one, “the State’s involvement” in termination of parental rights was still “real” because the termination of parental rights under the Adoption Act is a part of the State’s “overall and coordinated system of child protection and supervision.”  In other words, the State is still involved in the decision to terminate parental rights even in instances where the adoption is private as opposed to when the Division of Child Protection & Permanency institutes termination of parental right and/or adoption proceedings.  Because the State is involved, constitutional due process rights – specifically, the fundamental right to parenthood – are implicated.  And, where this paramount right is at issue, the Court went on, indigent parents opposing termination of parental rights and adoption proceedings cannot be expected to represent themselves adequately at trial given that they are laypeople unfamiliar with the rules of evidence, rules of court, and so on.

The Court went on to find that this right to counsel is triggered immediately upon the biological parent’s objection to the private adoption agency’s decision to proceed toward adoption of the child at issue.  Put another way, when the indigent biological parent objects in writing, that parent must now immediately be appointed counsel so that he or she will be ably and adequately represented at trial.

Looking forward, the Supreme Court strongly encouraged the Administrative Office of the Courts and the Legislature to provide support to indigent parents who oppose the private adoption of their children, much in the way these entities took action when the Court addressed the issue of an indigent parent’s right to counsel when the Division of Child Protection & Permanency (a State agency, formerly DYFS) seeks to terminate parental rights and place the child away from his or her biological parents.  For those cases, the Legislature previously established the Office of Parental Representation, a branch of the Office of the Public Defender which assists indigent biological parents with their cases for free.  The Court recommended that the Director of the Administrative Office of the Courts develop a form designed to help indigent parents respond directly to private agencies’ notification of intent to proceed with adoption.  The Court also called upon the Legislature to create an agency similar to the Office of Parental Representation to assist in private adoption cases.  Time will tell whether these bodies will respond to the Court’s recommendations accordingly.

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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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