Edward R. Weinstein, Esq.

Articles Posted in Child Custody

The lawyers at our law firm here in East Brunswick, New Jersey, handle many child custody disputes. Needless to say, emotions run very high which may result in one parent having to obtain a restraining order against the other while the child custody case is still ongoing. The attorneys at our New Jersey based law firm have had many cases wherein the temporary restraining order was absolutely necessary to protect the victim. However and regretfully, we have also had cases in which a questionable temporary restraining order is obtained by one parent with the underhanded goal of hoping to gain an “upper hand” in the child custody dispute. This blog analyzes how a judge of the Family Part of the Superior Court of New Jersey decides if the restraining order is “credible” or was obtained for the sole purpose of gaining an unfair advantage in the pending child custody case.

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In A.S. v. V.S., the Honorable Judge Jones of the Superior Court of New Jersey, Family Part of Ocean County, addressed the problem of evidentiary issues in a domestic violence case, when a complaint is simultaneously filed in a Family Part court relating to issues of parenting time, child custody, support, divorce, separation, or other related issues. Judge Jones held that under the principle enumerated in Murray v. Murray, when a complaint alleging domestic violence is filed on or near the same time as another family court complaint, the may can appropriately consider the proximity of the filing as relevant to issues of motivation, credibility, bias, and the possibility that the domestic violence complaint was filed in order to gain a legal advantage, in regards to rulings about support, custody or other similar issues. However, in terms of evidence, Murray does not automatically create a presumption that a domestic violence complaint that is filed at the same time of companion family court litigation is not legitimate. Even though it is possible that one party may have filed a domestic violence complaint in an effort to acquire a legal advantage in another litigation, it is just as possible that as a result of family court litigation, the other party committed domestic violence. Furthermore, because of the specific nature of domestic violence, a complaint alleging domestic violence can be substantiated by testimonial evidence by one of the parties, without the need for video proof, or eyewitnesses.

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Approximately fourteen years of age. Under New Jersey’s custody of child statute, one of many factors that a judge of the Family Part of the Superior Court of New Jersey shall consider is the child’s preference. However, the court must take into consideration the child’s age and maturity level. The lawyers at our law firm typically advise our clients that, as a rule of thumb, a child needs to be at least fourteen years old for their preference to be taken into consideration. Of course, the court has wide discretion when deciding whether to have an in camera interview of the child. If the judge decides not to interview a child, they must state their reasoning on the record for not doing so. This allows both the parents and their respective attorneys to understand why the decision was made and whether in case an appeal of the decision is on the horizon.

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Many facts can be derived when a judge interviews a child, ranging from their day to day lives when in the custody of each parent, respectively, to major decisions such as a client’s desire to be relocated from the state of New Jersey with one parent. When conducting such an interview of the child, the judge keeps a careful eye on their competency and emotional development when framing their questions. There is also always a witness present during the interview. The judge also is an expert at keeping the interview relaxed and non-formal. This not only prevents the event from being traumatic for the child but also will allow the child to relax so the judge can extract the relevant facts required in order to make their decision. Moreover, as a matter of public policy of always protecting the best interests of a child, a judge does not necessarily ask the child, point blank, whom they would rather live with. Instead, the judge frames their questions in a manner that extracts crucial facts. Nevertheless, from the child’s point of view they feel that they merely having a friendly chat. The following cases further explain this essential area of New Jersey child custody law.

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Yes. Throughout my career as a family law attorney, I have observed New Jersey laws evolve along with technology. Ranging from divorce and child custody cases to domestic violence matters, posts on social media websites have become powerful evidence for lawyers to present to judges of the Family Part of the Superior Court of New Jersey. Such posts can be used to prove a plethora of behaviors spanning the cause for a divorce (i.e., pictures with a paramour) to child neglect and even terroristic threats.   Furthermore, what your “ex” expresses about you on a social media platform, especially when children are involved, can generate high emotions and serious problems ranging from embarrassment (especially considering the wide scope of people that social media reaches) to fear for one’s (or your family’s) safety and well being.  Moreover, with more and more children on social media, it is clearly not in their best interests to be watching their parents “go at it” for all to see.

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Therefore, the lawyers at my law firm have taken steps in cases wherein the parties agree that it is not in anyones’ best interest to have the other making disparaging, public comments on the internet. It is essential that both parties stipulate to such an arrangement to become a court order. This is because a judge cannot order such an arrangement due to a legal theory known as stare decisis (i.e., precedent). However, your attorneys may still draft language that would achieve the goal of neither “ex” disparaging the other on social media sites such as Facebook, Instagram and Snapchat.   Specifically, you may have your lawyer prepare a Consent Order that would memorialize such an agreement. Once the terms of the consent order are finalized, the judge assigned to your case shall execute the Consent Order and it then becomes law. Consequently, if the other party violates the consent order, you would have the right to have your attorney file a motion with a New Jersey Family Court to enforce your litigant’s rights, sanctions and attorneys’ fees in connection with the application.

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Yes. Over the past 20 years as a child custody attorney I have observed New Jersey law transform in alignment with modern technology. When I first became a lawyer in the 1990s, when two parents had a significant distance between them, the telephone was the primary manner in which a child could hope to remain in contact with a parent who lived in another state.

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Over the years, I have observed an evolution in which court orders concerning visitation began to allow for contact ranging from email to texting to even social media contact between a child and their parents. Today, technology such as Skype and FaceTime has allowed for unprecedented opportunities for a child and parent to truly stay part of one another’s lives. Any parent who has ever been away for their child loves being able to see them on their phone, computer or tablet while communicating and sharing. As all parents embrace, the difference is truly night and day (as opposed to a mere phone call). Today, the attorneys at our law firm seek court orders in which judges allow for FaceTime or Skype even when both parents are still living here in New Jersey. The motto at our law firm has always been, “Kids First.” Clearly, a child’s ability to actually see their mom or dad when chatting dramatically enhances the child-parent bonding experience.

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As our society and culture continues to evolve, the concept of a family keeps shifting as well. But as with all family relationships, disputes may occur that require lawyers and the Family Part of the Superior Court of New Jersey Court to resolve the matter in a way that not only serves the best interests of the child but the needs of new family relationships as well. As the attorneys at our law firm study all new cases involving New Jersey child custody matters, we found a brand new case that provides for an unprecedented “tri-parenting arrangement.” Following please find a complete analysis of this potentially trend setting case that addresses issues such as a psychological parent, expands the rights of the LGBT population and embraces contemporary family situations.

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The case of D.G. and S.H. v. K.S., addressed issues of custody, removal, and support between three friends to conceive and jointly raise a child in a tri-parenting arrangement. In 2009 K.S. gave birth to a daughter, O.S.H. The biological father of O.S.H. is D.G. The third party, S.H., is D.G.’s same-sex spouse, who bonded with and became a psychological parent of O.S.H. After a long and arduous trial, the Superior Court of New Jersey, Family Part, Ocean County, awarded joint legal and joint residential custody of O.S.H. to all three parties, and denied the application of K.S. to remove and relocate the child to a different state.

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We have a motto at my New Jersey based law firm: Kids First. As the lawyers at my office only handle divorce and child custody matters, we embrace that titles and roles in divorced or non-intact families are often a breeding ground for conflict after a divorce is finalized or a couple breaks up. When one parent moves on and remarries, the other biological parent often feels uncomfortable with the child’s relationship with his/her stepparent. Even if the relationship between the step-parent and the child is a positive one, the biological parent may take issue with the same and conflicts often arise. Divorce and child custody attorneys understand that two common conflicts arise in a step-parent/ child relationship is the child calling the stepparent mom or dad in addition to the stepparent’s role in raising the child. His is certainly not only true in New Jersey, but nation wide as well.

While a biological parent may feel a certain way about their child having a close enough relationship with their step-parent that they call them mom or dad, the New Jersey Court has spoken with regard to how address this issue as well as the question of a step-parent’s roll in a child’s life. Not surprisingly the answer is much more common sense than one may have thought. Essentially New Jersey judges, lawyers and child custody experts instruct parents to put their egos aside and as always do what is in the best interest of the child. After all, a title is just a title and the same does not change a relationship between a child and their active biological parent. In short, if your child is close enough to his/her step-parent and is old enough to understand the difference between their step-parent and biological parent, you should not interfere if they voluntarily refer to the step-parent as mom or dad. The same does not mean they do not love you as a parent or that they do not value the relationship you have. It means that this new adult is treating your child well and that the child feels the same and is reciprocating the treatment with mutual affection.

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In breaking news, Chris Rock seeks joint physical custody of the two daughters that he has with his estranged wife. I suppose the fact that I am a child custody lawyer causes me to take note that in nearly every celebrity divorce involving the children, this is the “headline.” Now while I have only met Chris and Malaak Rock once (we sat next to each other once on a flight to Myrtle Beach), and I did take note that he appeared to be an attentive and loving father, I do not know these folks on a personal level. However, as a divorce lawyer, I understand that seeking joint physical custody may simply represent a loving father who wants as much time with his children as possible. In fact, upon filing for divorce Mr. Rock complained that he felt that his wife was purposefully keeping the kids away from him as a form of “punishment” for divorcing her. Hence, he legally seeks joint physical custody of their children.

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However, it did not escape me that, in the same article which came out right after the Rock’s announced their divorce, Mr. Rock also alleged that Malaak, “has the ability to work and contribute to her own support. Now while this just may be the divorce lawyer in me, it made me question if he was seeking joint physical custody simply to reduce the amount of child support he would ultimately have to pay to his ex-wife. Now, at this juncture you may be wondering what joint physical custody has to do with a child support figure. Following, please find why, under New Jersey law, joint physical custody versus one parent having primary custody can have a dramatic effect on the amount of child support one must pay. This not only for celebrities, but for middle class people as well. Let’s take a look.

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It is common for divorced or “split-up” parents to have disagreements regarding parenting time rights. However as an experienced New Jersey child custody lawyer, I recently realized (while reviewing some data) that my associate attorneys and I have handled countless cases in which grandparents must also fight to visit their grandchildren. In the recent case of R.K. v. D.L., the New Jersey Appellate Division decided that while a parent also has superior authority in regards to the child, grandparents must be given the opportunity to present evidence that visitation is necessary to avoid harm to the child. Let’s take a closer work.

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D.L., the father in R.K. v. D.L., was twenty-five years old when he met his future wife, K.K., who was twenty-one at the time. He was introduced to her by her brother, who also happened to be D.L.’s roommate. D.L. and K.K. lived together, and eventually married in 2000. Two children were born of their marriage, Olga and Charles. The marriage lasted only four years.

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New Jersey Family Courts generally favor agreements between spouses and/or parents that resolve divorce issues and child custody matters.   In fact, my vast experience as a family law attorney dictates that settlements are almost always favored as opposed to having a trial or a plenary hearing. However, when a person signs a document (before hiring a lawyer) that outlines certain agreements and clauses in connection with their New Jersey divorce, they expect the Agreement to “hold up” in Court. Unfortunately, that is not always the case. As the attorneys at The Law Offices of Edward R. Weinstein would all attest to, I could not stress enough how important it is for both parties to be represented by an attorney when entering into any type of agreement. All told, a New Jersey Family Court will give much more deference to an Agreement signed with both parties represented by a lawyer of their own choosing.

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Having an attorney really can save someone from a lot trouble down the road and can help ensure that any agreement entered is will be upheld by the Superior Court of New Jersey. While it is always a hard row to hoe, a Family Court will certainly hear an application to set aside or vacate an agreement regarding child custody or marital finances reached by way of consent on the basis of strong public policy that requires fairness. These types of cases are of course very fact sensitive because the Court must look to the intention of the parties. Prior to vacating an agreement the Court will require proof of fraud, coercion, or other compelling circumstances by “clear and convincing evidence”. Usually, the party seeking to avoid an agreement bears the burden of proof. If the Court finds that the agreement is not valid they may offer three remedies; 1) avoidance of the provisions 2) reformation of the provisions or 3) cancelation of the contract.

Most recently my law firm represented a nice gentleman, who I shall refer to as Bob. Bob and his Wife of 30 years were experiencing marital difficulties, but it appeared to Bob that they would be able to manage those difficulties amicably. Bob and his Wife drafted a settlement agreement which outlined the settlement terms they wished to be incorporated into their divorce. Neither Bob nor his Wife spoke English. As such, the agreement was written in their native language and translated to English. Bob’s Wife requested several changes and all of the changes she requested were added to the agreement. After negotiating the agreement and making several changes both parties signed the same in front of a notary. Further, the agreement was negotiated between the parties’ children. Bob and his Wife did not discuss the terms between themselves. The parties lived by the terms of the agreement for five months when Bob filed for divorce. Bob’s Wife retained an attorney and decided that she no longer wished to follow the agreement and that the same was unfair to her. Bob was understandably upset. Here he thought everything was taken care of, and now he was dealing with a divorce from scratch.

In nearly twenty years of practicing divorce and child custody law in New Jersey, this is a question that my law firm is frequently asked. While this is a fairly complex area of the law, I trust the following shall be a helpful and useful explanation.

In 1997, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was passed and has been adopted by every state except Massachusetts (which should be passing the UCCJEA shortly). The UCCJEA was passed so that there are clear guidelines as to what state has jurisdiction over a child in family court in order to ensure that children may be protected at all times.

The first thing that must be determined is the child’s “Home State.” For instance, if the child has lived in New Jersey for the past six months OR the child lived in New Jersey for at least six months before the filing a Complaint for Custody in the Superior Court of New Jersey, provided a parent (or someone acting as the child’s parent) still lives in NJ, then New Jersey is the child’s Home State. If NJ is not the home state in this manner, then the state that has the most connections with the child and one of the parents shall have jurisdiction over the child. This way, any and all substantial evidence shall be located in this state. By way of example, let’s say Little Eddie lived with his parents in New Jersey for all five years of his life but then his father moved to New York while Little Eddie remained with his mom in NJ. In this case, N.J. would remain his Home State and a New Jersey family court would handle the child custody case.
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