New Jersey Family Law Blog

Where Children Are Concerned, A Name Change Is Not Necessarily A Simple Matter

Sun, 05 Feb 2012 13:01:27 -0500

When a couple divorces, it is easy to understand why some may want to erase all evidence of the failed relationship. That’s one reason behind women reclaiming their maiden names as part of their divorce settlements. But when children are involved, such decisions are not so easy. If, after reading the following, you need assistance with custody-related issues, contact the family law attorneys at The Rotolo Law Firm in Lebanon, N.J.

The New Jersey Appellate Court recently reversed a ruling by a Burlington County Superior Court judge granting a mother permission to change her children’s surname following her divorce from their father. While the couple shares legal custody of their two children, the mother is the parent of primary residence. (1)

The couple divorced in 2010, ending an 11-year marriage. Shortly thereafter, the mother changed the children’s surname to a hyphenated version of her and her ex-husband’s last names without consulting the children’s father. The father filed with the court to have his children’s name changed back. The mother countered with her own petition to change the children’s name to her own. (1)

The procedure for changing the name of a child varies according to the state in which you live. (2) In New Jersey, the procedure for a name change is basically the same for adults and children. A petition must be filed with the court requesting the change and giving a reason for the change. Additional documentation and a hearing may be requested if necessary. Courts primarily are concerned that the change is not being done in an effort to avoid consequences of any legal action pending or for fraudulent purposes. (3)

In the case of a child’s name change, New Jersey requires both parents be involved. If only one parent files for the change, the other parent must be given the opportunity to object if he or she thinks the change would not be in the best interest of the child. (3)

When the above-mentioned case originally was heard, the judge based his ruling on the fact that the mother was the parent of primary residence which, he said, allowed for a presumption in her favor. The Appellate Court, however, said the judge was mistaken because the law upon which the presumption was based did not apply since the couple had been married at the time the children were born. Instead, the Appellate judges ruled, the best-interest test needed to be applied. This test takes into consideration several factors including how long the children had used their surname, how the children identified as a part of a family unit, and any discomfort or embarrassment the children may experience as a result of the name change. (1)

The presumption in favor of a parent of primary residence is mostly used in instances of children born out of wedlock. Even then, though, the Court noted, most states are steering away from this so it does not become an issue in divorce negotiations. It could also be considered discriminatory since parents of primary residence are primarily mothers. (1)

The above-described case illustrates how even relatively simple issues can have complications. If you or someone you know needs assistance with divorce or custody issues, contact the family law attorneys at The Rotolo Law Firm located in Lebanon, N.J., which is in Hunterdon County, New Jersey.

(1) http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202539705405&slreturn=1
(2) http://www.essortment.com/change-minor-childs-last-name-24588.html
(3) http://www.lsnjlaw.org/english/courts/formslawsuits/changename/changenamenj/

NJ Supreme Court Win by Rotolo Law Firm Helps Pave Way to Passage of NJ Bill

Fri, 27 Jan 2012 10:13:28 -0500

In an article dated January 5, 2012, Matt Friedman, Statehouse Bureau reported on the Assembly panel approval of a bill that removes the State's two-year statute of limitations for lawsuits for child sexual abuse. Victor Rotolo's 2008 landmark case paved the way for this change. Read Matt Friedman's article here.

New Jersey Joins Four Other States Allowing Proxy Marriages for Military Personnel

Sun, 22 Jan 2012 12:15:08 -0500

New Jersey service men and women no longer have to put off their wedding plans due to deployment to active duty thanks to new legislation signed into law by Gov. Chris Christie last week. The law allows for marriage by proxy for military personnel stationed overseas. (1) If after reading the following, you need a Hunterdon County lawyer that can assist you with a proxy marriage or other marriage issue, contact the family lawyers at The Rotolo Law Firm.

The new bill was a bipartisan effort sponsored by Republican Sen. Diane Allen and Democratic Assemblyman Herb Conaway. It gained full Legislature approval on January 9 and was signed into law on January 17. (2) As a result, New Jersey residents actively serving in our Armed Forces no longer have to put off the benefits of marriage merely because one of them is deployed for military action.

A marriage by proxy is one in which someone with a power of attorney stands in for the bride or groom who cannot be present for the wedding formalities. Proxy marriages are not new and, in fact, have been around for centuries -- Napoleon married Marie Louise by proxy; a number of Japanese “picture brides” married their American husbands by proxy in the early 1900s; (3) and cosmonaut Yuri Malenchenko married Ekaterina Dmitriev by proxy while he was serving on the International Space Station. (4)

The advantage of a proxy marriage is that the couple does not have to wait to share the legal benefits of marriage, which include health and insurance benefits, legal rights, tax benefits and rights to power of attorney while in service to their country. (2)

New Jersey joins four other states in the nation that recognize proxy marriages. Colorado, California, Texas and Montana are the others. (2) Of those, Montana is the only state that allows for double proxy marriages, which are ceremonies where neither the bride nor groom can be present. Ironically, however, not all counties in Montana permit marriage by proxy. (3)

It should be noted that while some states recognize proxy marriages performed in those areas where allowed, others recognize such unions only as common law marriages. (3) Because marriage laws vary by locale, it is important to seek professional advice if you have concerns. If you or someone you know has questions regarding proxy marriages or marriage laws in Hunterdon County, contact the Lebanon, NJ family lawyers at The Rotolo Law Firm, approximately ten miles from the County Seat in Flemington, NJ.

(1) http://www.newjerseynewsroom.com/state/christie-signs-bill-allowing-marriage-by-proxy-for-armed-service-members

(2) http://www.phillyburbs.com/news/local/burlington_county_times_news/new-jersey-becomes-fifth-state-to-permit-soldiers-to-marry/article_65944c6e-d2cb-56e3-a224-878b2a885948.html

(3) http://marriage.about.com/cs/legalities/a/proxymarriage.htm

(4) http://www.helium.com/items/1533196-what-is-a-proxy-marriage

State Is Considering Waiving Waiting Period for Marriage Licenses

Sat, 07 Jan 2012 14:24:03 -0500

The wait may soon be over for couples seeking to marry in New Jersey as the State Assembly considers a proposal to allow for same-day issuance of marriage licenses. (1)

Some requirements for marriage licenses can vary by municipality (2), so if you have questions regarding laws governing marriages in Hunterdon County, the family lawyers at The Rotolo Law Firm can help. Basically, however, there is currently a three-day or 72-hour waiting period for marriage license applications in New Jersey. Originally, this waiting period was intended to make sure couples gave sufficient thought to what is supposed to be a lifetime commitment. (3)

Two Democratic representatives, Sen. Nicholas Scutari of Union and Assemblyman Lou Greenwald of Camden, last month proposed a bill that would eliminate this waiting period.(4) That proposal was approved this week by the Assembly Budget Committee and now awaits a vote by the full Assembly expected this Monday. However, a plan currently in committee has not yet been approved by the Senate. If that plan does not gain approval by Monday, efforts will have to start all over again. (5)

Proponents for the change say that abolishing this waiting period can bring a boost to the State’s tourist trade as well as its wedding industry by giving New Jersey an edge over neighboring states. (There is currently a 24-hour waiting period in both New York and Delaware and a 3-day waiting period in Pennsylvania.) These supporters claim that the waiting period makes it difficult for vacationers to plan destination weddings in New Jersey. They also profess the change could make Atlantic City more like Las Vegas, a town known almost as much for its wedding chapels as for its casinos.(4) Opponents, however, question whether so-called "drive-by” weddings are the best way to bring in revenue and create jobs, asserting that a cut in both taxes and spending would be more beneficial to the State’s economy. (5)

Under current New Jersey law, couples are required to apply for a marriage license in the municipality in which the bride-to-be lives. If she is not a resident, the couple must apply in the groom’s hometown. If neither are residents, application is to be made in the municipality where the ceremony is to take place. (2)

The proposed change would allow visitors to apply for a State marriage license as well as allow residents to apply in the municipality where the ceremony will be held rather than in their hometown. (4)

If the change is adopted, it would bring New Jersey in line with 29 other states that have no waiting period. Connecticut and Rhode Island are the only other northeastern states without a marriage license waiting period. (1)

For advice regarding marriage laws in New Jersey, specifically in Hunterdon County, contact the family law attorneys at The Rotolo Law Firm, located in Lebanon.

(1) http://www.nj.com/news/index.ssf/2012/01/nj_assembly_clears_bill_allowi.html

(2) http://usmarriagelaws.com/search/united_states/new_jersey/index.shtml

(3) http://family.findlaw.com/marriage/marriage-license-requirements.html

(4) http://www.nj.com/times-opinion/index.ssf/2011/12/editorial_drop_nj_marriage_lic.html

(5) http://philadelphia.cbslocal.com/2012/01/06/new-jersey-assembly-wants-to-lift-3-day-waiting-period-for-marriage-licenses/

Judge Considers Special Circumstances When Granting Custody to Gay Partners

Wed, 28 Dec 2011 22:50:29 -0500

In a complicated case involving same-sex unions and surrogacy, a Hudson County judge recently put controversy aside and decided custody of twin girls based on their best interest. All custody cases carry their own complications. If, after reading the following, you have questions regarding custody issues in Hunterdon County, contact the family lawyers at The Rotolo Law Firm in Lebanon, NJ.

This particular custody case involves Donald Robinson Hollingsworth, Sean Hollingsworth and Donald’s sister, Angelia Robinson. Donald and Sean, partners who were married in California, currently reside in Jersey City. The men, wanting a family, entered into a surrogacy agreement with Donald’s sister, under which she agreed to carry a child – or twins, as it turned out – for the couple. The twin girls were conceived through in vitro fertilization with a donor embryo fertilized by Sean. (1)

Following a complicated birth, the men assumed custody of the twin girls, allowing for visitation with Ms. Robinson. In time, however, the relationship between brother and sister deteriorated, eventually winding up in a lawsuit. In 2009 a judge declared Ms. Robinson the legal mother of the girls even though she had no genetic ties to them. (2)

Disagreements between the men and Ms. Robinson heightened. They failed to agree on child-rearing basics such as schooling, religious beliefs, the girls’ biracial heritage (their biological father was the child of a biracial couple) and the issues of surrogacy and same-sex lifestyles. These major differences of opinion led the Hudson County Superior Court judge to determine that a joint custody arrangement would not work in this situation and instead based his decision on who would provide the best care for the girls. (1)

Sean, who worked part-time from home, was able to devote ample time to raising the girls. Donald ran a successful business. The couple owned homes in Jersey City and Asbury Park. Ms. Robinson lived with her mother in a rental apartment. While the girls were in her care, Ms. Robinson’s mother would watch them while she worked. Both women had expressed anti-gay and anti-surrogacy sentiments. (2)

In making his ruling, the judge expressed concern that the women’s viewpoints would eventually be shared with the girls with damaging effects. However, he recognized Ms. Robinson’s place as legal mother and, while granting full custody to the girls’ biological father, he preserved Ms. Robinson’s visitation rights. (2)

Neither same-sex marriages nor surrogacy contracts are recognized in New Jersey. While the men were married in California, they are considered to be in a civil union in New Jersey. The surrogacy contract entered into by Ms. Robinson and her brother could not be enforced because in New Jersey, as in Michigan, such contracts are considered to be against public policy and void. (3)

Custody issues are rarely black and white. More often there are many gray areas to take into consideration. If you or someone you know is involved in a custody issue in Hunterdon County, consider seeking the advice of the family law attorneys at The Rotolo Law Firm located in Lebanon, NJ, which is approximately ten miles from the county seat in Flemington.

(1) http://www.nj.com/news/index.ssf/2011/12/nj_gay_couple_fight_for_custod.html

(2) http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202535807445

(3) http://www.legalmatch.com/law-library/article/surrogacy-contract-lawyers.html

Will New Jersey Follow Massachusetts’ Lead in Alimony Reform?

Mon, 12 Dec 2011 06:48:49 -0500

At least one private New Jersey citizens group is working toward making sure the words “till death do us part” refers to marriage and not alimony payments. The group, New Jersey Alimony Reform, is hoping State lawmakers can be persuaded to follow the example set by Massachusetts earlier this year and reform New Jersey’s alimony laws. (1)

Laws affecting the award and calculations of alimony payments vary from state to state. (2) If you have questions regarding New Jersey’s current alimony laws, particularly in Hunterdon County, contact the divorce lawyers at The Rotolo Law Firm in Lebanon, NJ.

This past fall, Massachusetts’ governor signed into law reforms that would eliminate lifetime alimony. Now, New Jersey and Florida are considering similar changes. (1)

Alimony, also known as spousal support, is intended to ensure that both parties can continue a lifestyle similar to the one they enjoyed while married. For the most part, New Jersey’s current alimony laws were written at a time when traditional roles of bread-winner and homemaker were more prevalent and were intended to ensure neither spouse was left destitute once the marriage ended and that the spouse who put family before career was compensated fairly.

There are currently four forms of alimony: permanent, lump sum, temporary and rehabilitative. It is the permanent alimony that currently is under fire. (3)

New Jersey Alimony Reform wants lifetime or permanent alimony eliminated. Instead the group wants terms of alimony awards to be legislated so that the awards are more equitable and fair to both the payor and the recipient. (1)

One of the problems with permanent alimony is that it does not allow for adjustments when the income status of either party changes. Couples find themselves going back to family court to plea for a change in the award to meet their changing needs or abilities, thus prolonging a relationship that should have ended some time ago. (2)

New Jersey Alimony Reform has been collecting stories that illustrate the inequities in the State’s current law. One such story involved a Hunterdon County man who was ordered to pay alimony in the amount of $4,000 per month at a time when his business was going strong. However, when the recession hit in 2008, his business began to flounder and, although he attempted to have the alimony award adjusted to reflect the change in his income, he was rejected – three times. (2)

One bill before the state Legislature has provisions to protect both parties in an alimony issue. The bill, sponsored by Sen. Sean T. Kean (R-Monmouth) would allow for alimony payments to cease once the payor’s income is reduced because of certain factors including unemployment, retirement, temporary disability or like conditions. Sen. Kean’s bill would also protect against the payor deliberately altering his or her income to avoid alimony payments. (1)

The senator plans to reintroduce his bill, which has been in the works for four years, next year hoping it will gain more attention in light of current economic conditions and the precedent set in Massachusetts. (1)

If you or someone you know has an issue with alimony payments in Hunterdon County, contact the divorce lawyers at the Hunterdon County-based law firm - contact The Rotolo Law Firm, in Lebanon, NJ.

(1) http://www.thedailyjournal.com/article/20111205/NEWS01/312050028/Alimony-reforms-NJ-proposed

(2) http://www.huffingtonpost.com/elizabeth-benedict/alimony-reform-sweeps-the_b_1088169.html

(3) http://www.divorcehq.com/alimony.shtml

Holland Township Couple Fights for Custody of Newborn Son

Wed, 23 Nov 2011 08:00:35 -0500

Custody is defined as having the legal responsibility to care for and/or make decisions on behalf of a child under 18. (1) Most consider it a parental right, but there are times when the custody of a child can be threatened and the advice of counsel such as the family lawyers at The Rotolo Law Firm may be warranted.

Various factors can threaten custodial rights. You can be engaged in a custodial battle with an ex-spouse or you can lose custody to authorities as a result of abuse or neglect allegations. Often in divorce, agreements can be reached whereby parents have shared custody or at least visitation rights. Fighting to regain custody from child welfare authorities can be a different story. One Holland Township couple has found themselves engaged in such a battle for the past two years.

The couple, Deborah and Heath Campbell, lost custody of their three children in 2009 and just this week appeared in court once again – this time to fight for custody of their infant son. (2)

The Campbells first made headlines in 2008 when a request for a name on a birthday cake brought them to the attention of New Jersey’s Division of Youth and Family Services (DYFS). The couple had given their three older children names inspired by Nazis – Adolf Hitler Campbell, JoceyLynn Aryan Nation Campbell and Honszlynn Hinler Jeannie Campbell. When they asked a supermarket employee to put Adolf Hitler, their son’s name on the birthday cake, the employee refused. Child welfare authorities somehow learned of the incident and began investigating the couple. The investigation led DYFS to remove the children from the couple’s custody, claiming there was evidence of past violence in the household and that the children were in danger of harm. (3)

Just last week, Mrs. Campbell gave birth to another son, whom the couple named Hons. Only hours after the child’s birth, reports stated, child welfare authorities took charge of the child and denied the couple contact with him. (2)

The couple went to court in Flemington this past Monday in an effort to regain custody of the baby, claiming authorities took the infant without a court order. Officials from DYFS have not commented publicly on the matter, but the judge hearing the case denied the couple’s request for custody. The couple’s other three children remain in foster care. (2)

Custody matters can be complicated and agonizing. If you are involved with custody issues in Hunterdon County or a surrounding county, contact The Rotolo Law Firm in Lebanon, NJ.

(1) http://www.womenslaw.org/laws_state_type.php?statelaw_name=Custody&state_code=GE

(2) http://usnews.msnbc.msn.com/_news/2011/11/22/8952917-parents-of-adolf-hitler-campbell-lose-custody-of-newborn-hons

(3) http://www.nj.com/news/index.ssf/2011/11/nj_officials_take_custody_of_b.html

Increase in Income Following Separation Can Be Considered When Determining Alimony Payments

Sat, 12 Nov 2011 09:37:18 -0500

When a couple comes to an agreement to terminate their marriage, getting a court to make it official usually is not an issue. Resolving the associated aspects of divorce is where it can get complicated. If you are seeking a divorce in Hunterdon County, the family law attorneys at The Rotolo Law Firm can assist you.

Divorce is an emotionally trying process for all involved. Once a couple has come to terms that their relationship is over, they still must deal with the often heated issues related to the dissolution of their marriage -- child custody and support, fair and equitable distribution of assets and, perhaps the most contentious of all, alimony.

Alimony is a payment of support from one spouse to another. In New Jersey married couples are responsible for supporting each other. This holds true even after the marriage ends. Alimony is designed to ensure that both spouses can enjoy a lifestyle reasonably similar to the one they had while married. (1)

A New Jersey statute gives courts a list of 13 factors they can consider when determining alimony awards, including need and the ability of one spouse to pay. (1) That ability is based on recorded earnings during the marriage and sometimes, as recently confirmed by an Ocean County Superior Court, immediately following separation.

On November 1 Superior Court Judge Lawrence Jones, in hearing Dudas v. Dudas, ruled that an increase in Mr. Dudas’ income, which occurred almost immediately following his separation from his wife, can be considered when deciding the amount of the alimony award. (2)

Mr. and Mrs. Dudas were married for 26 years during which time Mr. Dudas earned an estimated $40,000 annually. Soon after Mrs. Dudas filed for divorce in 2008 Mr. Dudas experienced a significant increase in salary, earning $64,000 in 2009; $76,000 in 2010; and an anticipated $68,000 for 2011. (2)

In considering this case, Judge Jones gave particular attention to 4 of the 13 factors: need and ability to pay; the lifestyle enjoyed by the couple during their marriage; earning potential of both spouses; and other evidence considered relevant. Two other factors Judge Jones considered were the cost and the “momentum” of the marriage. (3)

According to the Judge, specifics of this case showed that Mr. Dudas’ ability to succeed and increase his earning potential was made possible by the support received from Mrs. Dudas throughout their marriage. He further ruled that ignoring the increased earnings would make it impossible for either spouse to enjoy a lifestyle similar to what they had while together. (2)

The nuances of divorce are complicated and can vary case by case. If you or someone you know is going through a divorce in Hunterdon County, The Rotolo Law Firm divorce attorneys can help. The Rotolo Law Firm, in Lebanon, NJ, is on Route 22 close to the intersection of Route 22 and 78.

(1) http://www.njdivorceonline.com/njpages/Alimony/alimony.asp
(2) http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202521259101&slreturn=1
(3) http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202522350523&hubtype=MAIN%20PAGE

Even Federal Agencies Are Bound to Comply with Child Support Orders

Tue, 01 Nov 2011 18:05:54 -0500

New Jersey, like most other states, takes the issue of child support seriously. There are processes in place to aid those seeking to collect child support and stiff penalties for those who fail to make their payments. If, after reading the following, you need a Hunterdon County lawyer to assist you with child support issues, contact The Rotolo Law Firm, located in Lebanon, NJ.

Ensuring the payment of child support is primarily the responsibility of individual states. The federal government, however, does provide financial support to state agencies entrusted with this job. In addition, legislation is in place prohibiting someone from using a bankruptcy filing to avoid child support obligations, and it is a federal crime to willfully avoid such payments by moving to another state. Still it is the state’s responsibility to enforce court orders, and even federal agencies are bound to comply with state-ordered child support payments. (1)

States have various means by which they can enforce payment of child support, including garnishment of wages or unemployment payments and liens on or the seizure and sale of property. Even Social Security payments, which are exempt from most garnishments, can be attached for child support payments. (2) While the Social Security Administration (SSA) is bound to comply with state-ordered child support payments, it is immune from suits for damages resulting from its failure to follow such orders. (3)

This immunity was upheld recently by a New Jersey appeals court in the case of Jacobson v. U.S., in which lawyers for the plaintiff claimed the SSA failed to withhold money from disability payments made to Steven Tetz in order to satisfy child support payments for which Mr. Tetz was in arrears. (3)

Mindy Jacobson sought and was granted child support from Mr. Tetz for their daughter in 1998. In 2004 a second order directing the garnishment of Mr. Tetz’s disability payments was issued by the Office of Child Support Division of New Jersey’s Department of Human Services. The SSA, however, failed to garnish any portion of a $58,948 retroactive disability payment made to Mr. Tetz in December 2007 claiming the agency never received the notice. At the time of Mr. Tetz’s death in March 2008, he was $79,546 in arrears on child support. (3)

Ms. Jacobson originally filed suit in federal court against Mr. Tetz’s estate and the U.S. government seeking damages for the SSA’s failure to comply with the state’s garnishment order. That case was dismissed without prejudice, allowing Ms. Jacobson to re-file at the state level. In December 2008, she filed a suit with the Mercer County Law Division and was awarded $43,894 in compensatory damages along with an additional $75,125 in prejudgment fees, attorney’s fees and related costs. The judge hearing that case found that sovereign immunity did not apply since the federal government failed to contest the charges. (3)

In an appeal heard earlier this month, the award was reversed on the basis that the action was prohibited because of sovereign immunity, which could only be waived by Congressional action. Judges hearing the appeal noted that while the federal Child Support Enforcement Act, passed in 1974, requires federal agencies to comply with garnishment orders, it does not hold those agencies liable for damages that may result from failure to do so. (3)

If you are involved in a child support issue in Hunterdon County, contact the family law attorneys at The Rotolo Law Firm.

(1) http://www.policyalmanac.org/social_welfare/child_support.shtml
(2) http://www.debtsettlementlawyers.com/resources/debt-settlement/debt-collection/new-jersey-wage-garnishment.htm
(3) http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202519357662&slreturn=1

Court: Parental Autonomy Cannot Be Transferred to Third-Party

Sat, 15 Oct 2011 08:19:19 -0500

Sometimes things stand in the way of parents’ ability to raise their children – financial distress, illness, substance abuse - to name a few. When this happens, custody can be turned over to someone else: a grandparent, another relative or any trusted adult that has lived with the child. These people are known as “psychological” parents or de facto parents. If, after reading the following, you need a Hunterdon County lawyer that can assist you with a similar situation regarding parental rights, contact The Rotolo Law Firm, located in Lebanon, NJ, which is in close proximity to Clinton, NJ and Flemington, NJ.

By definition, a psychological parent is an adult with whom a child has bonded regardless of any legal, biological or adoptive relationship. (1) However, although custody of a child can be transferred, parental autonomy cannot, according to a ruling recently upheld by the New Jersey Appellate Division. (2)

Parental autonomy is a fundamental right of natural parents. It allows parents to make all decisions with regard to raising their child without fear of governmental interference as long as those decisions pose no threat to the child’s or the public’s order, safety and welfare. (3)

The court’s ruling came in connection with the case of Tortorice v. Vanartsdalen, involving a grandmother, Lynne Vanartsdalen, who was granted custody of her six-year-old grandson by the child’s natural mother, her daughter. The child basically had lived with Ms. Vanartsdalen all his life since both of his parents reportedly had a problem with substance abuse. In this arrangement, Ms. Vanartsdalen was considered a third-party guardian or psychological parent. (2)

As guardian, Ms. Vanartsdalen honored court-ordered visitation by the child’s natural father and maternal grandfather and step-grandmother, as well as the child’s paternal grandparents. It was when the paternal grandparents sought additional visitation privileges that Ms. Vanartsdalen objected, claiming the additional visitation would undermine her standing as the child’s custodial parent. She argued that Mr. and Mrs. Tortorice would need to prove that denying increased visitation would result in “identifiable harm” to the child. (2)

The court noted that Ms. Vanartsdalen did indeed meet all the criteria of a psychological parent – she was granted custody by her daughter; the child had lived with her most of his life; she assumed parental responsibility; and a bond had been formed between her and her grandson. However, the court ruled, because Ms. Vanartsdalen was not the child’s legal parent – a status reserved for natural or adoptive parents -- the “identifiable harm” standard did not apply. According to the court, while custody can be transferred, parental rights, or autonomy, cannot. (2)

If you or someone you know needs the assistance of an attorney for a child custody or parental rights issue in the State of New Jersey - specifically in Hunterdon County or the surrounding area, please contact the family law attorneys at The Rotolo Law Firm.

(1) http://encyclopedia.adoption.com/entry/psychological-parent/295/1.html

(2) http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202517737205

(3) http://definitions.uslegal.com/p/parental-autonomy-doctrine/

State Has Guidelines to Calculate a Fair Share in Child Support Payments

Sat, 03 Sep 2011 12:36:09 -0500

The $46,000 per month in child support supermodel Linda Evangelista is seeking from the father of her four-year-old son may raise some eyebrows.(1) After all, that’s more than some people earn in a year. And the recent court order requiring actor Mel Gibson to pay his ex $750,000 over five years to settle their bitter custody battle may stir similar reactions.(2) Although these high-cost celebrity cases may feel like revenge of a partner scorned, child custody issues are serious matters.

New Jersey considers all parents responsible for supporting their children, which means providing the basics of food, shelter and clothing. That responsibility does not end when a marriage dissolves.

Oftentimes couples get caught in a financial “catch-22” once they marry and have children. Now there are three or more mouths to feed. If both parents work, they incur the added expense of childcare. If one parent cuts his/her working hours to avoid the childcare expense, that parent's income is then lowered and there is less money to pay expenses. Finances are generally one of the major stress factors in marriage. Divorce doesn’t solve the problem either; rather, it can make financial problems worse, because after divorce there are two households to support in addition to the continued need to provide the basics.(3)

After divorce parents fall into the custodial or non-custodial category. The custodial parent is the one with whom the child(ren) spend most of their time; the non-custodial parent is the one responsible for paying support.(4)

When determining support amounts, courts consider several factors: gross income of each parent – including salaries, bonuses, tips, commissions, investment income, etc. -- and the expenses directly related to the care of the children, including daycare, clothing, food, and schooling. The courts also take into account the type of custody the parents have. This can either be shared or sole custody. Sole custody is determined when one parent spends less that 28% of overnight time with the children.(4)

In an ideal situation, couples will come to an agreement, known as a consent order, often with help from a mediator or hearing officer specializing in child support issues.(3) The State has developed guidelines to help reach that agreement. (See www.judiciary.state.nj.us/csguide/index.htm) If an agreement is not reached, the matter goes to a judge. And what the judge decides is law.(4)

If you find yourself in need of a New Jersey divorce attorney that specializes in child support, contact The Rotolo Law Firm. The Rotolo Law Firm family law attorneys will work hard for you.

(1) http://latimesblogs.latimes.com/gossip/2011/08/linda-evangelista-child-support-salma-hayek-husband.html

(2) http://www.swrnn.com/2011/08/31/mel-gibsons-divorce-settlement-details-released/

(3) http://www.njchildsupport.org/Article.asp?AID=97

(4) http://www.njchildsupport.org/Article.asp?AID=174

The Law Looks Differently at Mothers and Fathers

Sun, 21 Aug 2011 16:22:00 -0500

What defines a parent? For some, parents are the people to whom you are born. Others define parents as those who raise and care for you as you grow. According to Merriam-Webster.com, both definitions are correct, (1) but what about the legal definition of parent? That’s a question the New Jersey Supreme Court recently agreed to review.

The case involves a woman seeking to be identified as the legal mother of a child born to her husband and a surrogate without having to file for adoption. An appeals court previously heard the case and cited the New Jersey Parentage Act, which states that a woman is automatically granted parental rights only to a child she either carries through pregnancy or with whom she shares DNA. In this case, the husband’s sperm was used to fertilize an anonymous donor’s egg which was then implanted into a surrogate mother, leaving the wife no physical tie to the child. (2)

Prior to the child’s birth, a Camden County Superior Court Judge granted the couple’s request to be named as parents on the child’s birth certificate. The surrogate mother relinquished her parental rights three days after giving birth, the time period specified by law. All seemingly went smoothly until the Bureau of Vital Statistics questioned the wife’s parental claim. Since she did not carry the baby in pregnancy nor share DNA with the child, the Bureau claimed she needed to file for adoption as a stepparent before gaining her parental rights. (2)

This view highlights the difference in the way men and women are considered under the law. In the strictest sense of the word, parent legally “refers only to a mother or father who is related to the child by blood.” (3) However, in light of various infertility remedies, men are normally presumed to be the father to any child born to their wives during their marriage, even if the child was conceived through artificial insemination with donor sperm. This contrasts to criteria used to determine a mother’s parental rights. (2)

The Appellate Division explained the Parentage Act is based on “reproductive and biological differences” between men and women and the law affords extra protection for birth mothers. Arguments in favor of the couple in this case, however, point out that the adoption process allows for a period of time in which only one parent is legally responsible for the child. (2)

(1) http://www.merriam-webster.com/dictionary/parent
(2) http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202508353619&hubtype=MAIN%20PAGE&slreturn=1&hbxlogin=1
(3) http://legal-dictionary.thefreedictionary.com/Parent+and+Child

Court Says GPS Devices Can Be Used to Track Unfaithful Spouses

Fri, 05 Aug 2011 14:26:41 -0500

For most people, a global positioning system -- better known as a GPS -- is a useful tool that can help keep them from getting lost, navigate detours, or find the quickest route between two points. These devices can also be used to track the movements of the vehicle in which it is installed. What if the device was installed without the knowledge of the vehicle’s operator? Would that constitute an invasion of privacy? Not necessarily according to New Jersey courts.

This question came to light in connection with a recent Gloucester County divorce case. In this case, the wife suspected her husband of having an extra-marital affair. She hired a private investigator to confirm her suspicions. At some point, the investigator suggested the wife consider putting a GPS device in one of the vehicles the couple owned together. She followed that advice and information obtained through the use of that device led to the discovery of the husband in the company of another woman. The husband sued the investigator for violation of his right to privacy. (1)

A New Jersey court found in favor of the defendants and that decision was upheld by the Appeals Court just last month. In hearing the case, the court found that there was no evidence that the device tracked the husband into secluded or private areas. (2) The husband’s vehicle was tracked on public roads and was in plain sight of public view. As such, the court ruled, there could be no reasonable expectation of privacy. Therefore, there was no invasion of privacy and no rights were violated. (1)

When its next term begins in October, the U.S. Supreme Court is scheduled to consider whether or not GPS devices can be used by law enforcement officials without the aid of a warrant. In the meantime, this court decision opens the door for law enforcement agencies in New Jersey to use such technology not only for catching unfaithful spouses in the act, but also in child custody and insurance fraud cases. (3)

(1) http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202500685523&slreturn=1&hbxlogin=1
(2) http://www.nj.com/newsflash/index.ssf/story/nj-court-rules-on-gps-tracking-in-divorce-case/492aa7eb5f64447c8c93e49bd21a64a9
(3) http://homelandsecuritynewswire.net/divorce-leads-approval-gps-tracking-new-jersey

Court Rules Parental Rights Cannot Be Terminated by Contract

Sun, 24 Jul 2011 12:00:00 -0500

The New Jersey Supreme Court ruled recently that parental rights cannot be terminated merely by a contract entered into by the parties involved, rather parental rights can be terminated only by State law under specific conditions. (1)

This question arose in connection with a case of a single woman who wanted a child and her male friend who agreed to be a sperm donor. Prior to conception, the two entered into a contract whereby the male donor gave up all of his parental rights and responsibilities; the woman assumed complete responsibility for the child. (1)

The birth certificate of the child born from this procedure listed no one as the father. Following the child’s birth, the two individuals involved in the conception signed another consent order confirming that the male surrendered his parental rights and the female retained all responsibility for the child. That order was sent to the court. (2)

The court held that termination of parental rights is controlled by statute, not by personal contracts entered into by individuals. Under New Jersey law, parental rights can be terminated only under certain circumstances, including when a parent is found to be unfit; a child has been removed from a parent’s custody by the Division of Youth and Family Services (DYFS); or in the case of an adoption. New Jersey law does not provide for the contractual termination of parental rights. (2)

The statute was adopted in an effort to avoid complicating matters between husband, wife and child when that child was conceived by artificial insemination involving an anonymous donor. Normally parental rights are established by the genetic connection between the biological father and child. However, according to the statute, the donor “of semen provided to a licensed physician for use in artificial insemination” is not considered to be the child’s father. As a result, the donor has no rights or responsibilities relating to the child. (3)

In the case in question, no physician was involved in the process. As a result, the court found that the statute does not apply here and the donor’s parental rights cannot be terminated by contract either. However, the court did recognize the difference between the existence of parental rights and the exercise of them. Since the donor in this case had chosen not to exercise his parental rights, the court said it would not impose them. (2)

(1) http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202497445086&slreturn=1&hbxlogin=1
(2) http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202497624325
(3) http://www.associatedcontent.com/article/1246065/understanding_the_legal_aspects_of.html?cat=25

‘Legally Separated’ Is Not a Status Recognized in New Jersey

Fri, 08 Jul 2011 14:43:59 -0500

While entertainment news headlines these days may be full of celebrities and politicians calling it quits on their marriages, divorce is a big step for most couples no matter what problems they may be facing. There can be any number of reasons why a couple in domestic turmoil may not want to jump into divorce – at least not just yet. Among those reasons are financial situations, religious beliefs, insurance matters and even the hope that a little time apart could help mend the relationship. While many states recognize “legal separation” as a state between marriage and divorce, New Jersey does not. (1)

In New Jersey there is a proceeding on the books known as “divorce from bed and board.” This antiquated term refers to a marital state which is between living as husband and wife and divorce. During this time, the couple would enter into a Separation – or Marital Settlement – Agreement, which does much the same as a divorce agreement without permanently ending the marriage. (1)

Under a Separation Agreement, a couple decides and agrees on a number of issues such as how assets are to be distributed between them; whether or not support payments need to be made and, if so, how much; tax issues, such as who claims who as dependents; and custody matters, including visitation schedules and child support. (1)

While New Jersey may not recognize ‘legal separations,’ it does have ‘no fault’ divorces, which are also referred to as voluntary separations. The separation must be one that the couple mutually agrees to and enters into voluntarily. A divorce on ‘no fault’ grounds requires that the couple not cohabitate or live in the same house for 18 months consecutively and that they agree there is no chance for reconciliation. (2)

A ‘divorce from bed and board’ or a voluntary separation can provide couples with a cooling-off period during which they can reevaluate the relationship free from the pressure which put the marriage in trouble to begin with. For those who see no chance of reunion, a no-fault divorce allows them to dissolve the marriage without putting blame on any one partner. When these separations do end in divorce, couples find that most of the emotionally-draining decisions have already been dealt with in the Separation Agreement. (3)

(1) http://goarticles.com/article/Marriage-Separation-in-New-Jersey-is-Divorce-from-Bed-and-Board/4820620/
(2) http://www.divorcelawinfo.com/NJ/njdivexpln.htm
(3) http://www.ehow.com/how_6365207_file-legal-separation-new-jersey.html