Despite Girsh v. Jepson, A District Court Need Not Always Determine the Best Potential Recovery in Order to Approve a Class Action Settlement

Halley v. Honeywell International, Inc., ___ F.3d ___ (3d Cir. 2017).  This was an environmental contamination class action involving lands in Jersey City, New Jersey.  After “five years of extensive fact discovery produced little evidence that liability could be established,” plaintiffs and defendant Honeywell agreed to settle the case for $10,017,000.  (There is another defendant, […]

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“Learned Professional” Exception to Consumer Fraud Act Exempts Providers of Ambulance Services

Atlantic Ambulance Corp. v. Cullum, ___ N.J. Super. ___ (App. Div. 2017).  In her first published opinion for the Appellate Division since her elevation, Judge Mayer today addressed consolidated putative class action cases asserting Consumer Fraud Act (“CFA”) and other claims (actually, counterclaims, as discussed below) against an ambulance service provider, Atlantic.  One putative class […]

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A Rainbow by Any other Name-Legal Name Change Granted for Transgender Child

In a case of first impression in New Jersey, I was privileged to represent the mother and custodial parent of a transgender child in a contested, but successful, application for  the child’s legal name to be changed to the name which more accurately reflects the gender with which he identifies.  The case, Sacklow v. Betts,  has resulted in a reported decision (precedential) and gives guidance for judges who will no doubt be addressing these issues in the future.

Janet Sacklow retained counsel to represent her in connection with various issues surrounding her child’s gender identity issues.  This included treatment for hormones, mental health services, and allowing the child to assume the name of Trevor Adam. The child’s father had objected to various applications over the years related to the child’s gender identity, and initially objected to this as well, asking that the child’s given name, Veronica, continue.  During the trial in the matter, the father seemingly changed his mind, while at the same time expressing concerns that a name change was not in the child’s best interests.  Given the history of the father taking inconsistent positions in connection with the child, it was requested that the court make an independent finding as to the application for a name change.

The court found that the standard that should be used when there is a request for a name change when a child is transgender is whether or not the name change is in the child’s best interests.  However, the court then went on the note factors which should specifically be considered by a judge making such a decision.  Those factors are:

(1) The age of the child; (2) The length of time the child has used the preferred name; (3) Any potential anxiety, embarrassment or discomfort that may result from the child having a name he or she believes does not match his or her outward appearance and gender identity; (4) The history of any medical or mental health counseling the child has received; (5) The name the child is known by in his or her family, school and community; (6) The child’s preference and motivations for seeking the name change; (7) Whether both parents consent to the name change, and if consent is not given, the reason for withholding consent.

In this case, the child had disclosed the fact that he identified as male several years previously.  He had been under the care of health care providers for a significant amount of time and was confident in his gender identity.  He was known as Trevor in school, to his friends, and to the vast majority of his family.  He was treating with Children’s Hospital of Philadelphia and was in the process of his mental and physical transition to male.  He was shortly going to obtain a drivers’ license, and the idea of having a picture that did not “match” his name caused him significant stress. The court, which had taken testimony from both parents as well as the child, unequivocally concluded that it was in the child’s best interests to have his name changed.

The law relating to gender identity, sexual orientation and associated issues is constantly changing and developing. This case provides litigants and their counsel guidance in an emerging are of the law that will likely be addressed by courts in this and other jurisdictions.

Jennifer Weisberg Millner is a partner in Fox Rothschild LLP’s Family Law Practice Group. Jennifer is resident in the firm’s Princeton Office, although she practices throughout the state. Jennifer can be reached at 609-895-7612 or jmillner@foxrothschild.com.

 

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Newark Airport Bars May Soon Be Open After Hours

Travelers at the Newark Liberty International Airport may soon be able to imbibe in adult beverages after hours. Legislation expanding the hours the airport is allowed to serve alcohol was unanimously approved by an Assembly panel. Bill A-2419 would allow bars and restaurants operating within an international airport to sell alcoholic beverages between the hours of 8 am and 4 am.

Usually, local municipalities establish by ordinance the hours when alcoholic beverages may be sold for consumption on the premises. Most other bars and restaurants in New Jersey must close at 2 am or 3 am. Newark Airport is currently regulated by the liquor laws of the City of Newark, which allow the sale of liquor in bars and restaurants in the airport from 9:00 am to 2:00 am Monday through Wednesday, from 9:00 am to 3:00 am Thursday through Saturday, and from noon to 2:00 am on Sundays. This bill would only affect Newark International Airport.

The bill’s chief sponsor, Assemblyman Timothy Eustace, noted that the extended hours are appropriate for the airport, where normal day-to-day time routines do not apply. Another sponsor, Assemblywoman Eliana Pintor Marin stated that the bill is a “revenue generator and job booster.” Assemblyman John Burzichelli noted that for travelers, time is relative. “Someone’s morning may be someone else’s evening.”

The bill was approved by the Assembly Regulatory Oversight and Reform and Federal Relations Committee. It now goes before the legislature and if passed, to the governor for his approval. It would take effect immediately upon enactment.

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33 Years Since Kelly v. Gwinnell Introduced Social Host Liability

On June 27, 1984, the Supreme Court decided Kelly v. Gwinnell, 96 N.J. 538 (1984).  There, Chief Justice Wilentz, writing for a 6-1 majority (Justice Garibaldi was the lone dissenter), announced a new rule of law regarding the liability of social hosts who serve alcohol to those who then get into an auto accident caused […]

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Literal Reading of Police and Fire Public Interest Arbitration Reform Act on Applicability of Cap on Arbitration Awards Would Yield Absurd Results, so the Appellate Division Rejects That Outcome

In re State of New Jersey and Fraternal Order of Police Lodge 91, ___ N.J. Super. ___ (App. Div. 2017).  In her opinion for the Appellate Division today, Judge Reisner entered the competition for the most concise opinion of the current term, rivaling Judge Espinosa’s opinion in Jiwungkul v. Director, Div. of Taxation, ___ N.J. […]

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What Happens if a Divorce Goes to Trial?

Many people contemplating divorce do not realize that if they are unable to reach a settlement, the result is a full trial before a judge of the Superior Court of New Jersey.

It is critical to understand what occurs during a divorce trial – and what does not occur – and to be prepared.

First, a trial is not is not like a television drama or reality show. It is a highly structured event, subject to state laws and local rules. Witnesses testify and documents such as financial statements, appraisals, and other records are entered into evidence as exhibits, subject to the New Jersey Rules of Evidence. Not all evidence or testimony is admissible as evidence at trial. The most common example is hearsay testimony; that is, testimony concerning a statement made outside of court that is being offered for the truth of the statement. For example, a mother may want to testify about something her daughter told her about her father. Although there are a variety of exceptions to the hearsay rule which may allow hearsay testimony to be admitted, the judge will adhere to the Rules of Evidence in making that determination. If the judge decides that a statement is hearsay, and no exception applies, he or she may not admit it into evidence or to allow you to refer to it at trial.

Secondly, it is an understandable misconception on the part of divorce litigants to believe that their spouse’s infidelity or other wrongdoing, will impact the outcome of their divorce case. However, New Jersey law is clear that except in egregious circumstances, marital fault is not a factor in decisions relating to alimony, child support, and division of marital assets. Therefore, the courtroom is not a soapbox to air one’s grievances. Testimony and exhibits concerning fault may be deemed irrelevant as to certain issues. It should be added that in custody cases, fault may be considered but only to the extent that it bears upon parental fitness.

Finally, in a divorce trial the judge decides what the facts are, as opposed to a jury. The judge then applies his or her factual findings to the law to make decisions on the issues in the case. The credibility of the parties and witnesses can factor into this decision-making process. Often there are diverging viewpoints about events which occurred in the past, as well as the current situation. A judge faced with varying and possibly conflicting accounts of parties and witnesses must make factual findings in order to decide the issues. A judge will base his factual findings in part on credibility determinations – that is, which party appears more believable and offers the more believable version of the facts presented. The judge can form a favorable (or unfavorable) impression of a party or witness based upon conduct in the courtroom, and may consider conduct aside from what is observed while the party or witness is on the witness stand. The judge is given wide latitude in determining a person’s credibility and demeanor while testifying, which may prove significant.

In conclusion, a divorce trial is serious business. Maintain your composure at all times in the courtroom. Use an attorney who has trial experience and listen to your lawyer. Testify truthfully and accurately, and understand what the judge can and cannot take into consideration when rendering his or her decision. Most of all, be prepared before entering the courtroom.

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