A stipulation to joint legal custody constitutes the parties’ agreement to share “authority and responsibility for making ‘major’ decisions” regarding the welfare of the children, calling upon “both parents to remain decision-makers in the lives of their children.” Beck v. Beck, 86 N.J. 480, 487 (1981). See also Pascale v. Pascale, 140 N.J. 583, 596 (1995); Nufrio v. Nufrio, 341 N.J. Super. 548, 550-52 (App. Div. 2001).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

A stipulation to joint legal custody constitutes the parties’ agreement to share authority and responsibility for making major decisions regarding the welfare of the children, calling upon both parents to remain decision-makers in the lives of their children originally appeared on NJ Family Issues on January 26, 2012.

Rule 5:3-3(f) provides that:

Any finding or report by an expert appointed by the court shall be submitted upon completion to both the court and the parties. At the time of submission of the court’s experts’ reports, the reports of any other expert may be submitted by either party to the court and the other parties. The parties shall thereafter be permitted a reasonable opportunity to conduct discovery in regard thereto, including, but not limited to, the right to take the deposition of the expert.

Rule 4:10-2(a) provides that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action[.]” Relevant evidence is defined in N.J.R.E. 401 as “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” Rule 4:10-2(d) sets forth the procedure for discovery of “facts known and opinions held by experts[.]”

Pursuant to the court rules, a parent is entitled to a reasonable opportunity to conduct discovery of a court-appointed expert. Rente v. Rente, 390 N.J. Super. 487, 493 (App. Div. 2007).

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

A parent is entitled to a reasonable opportunity to conduct discovery of a court-appointed expert originally appeared on NJ Family Issues on January 8, 2012.

A law guardian acts as an independent legal advocate for the child and takes an active part in the court proceedings. In re M.R., 135 N.J. 155, 173-75 (1994). A law guardian has a duty to “zealously advocate” the child’s cause, while protecting the child’s interests. In re Adoption of a Child by E.T., 302 N.J. Super. 533, 539 (App. Div.), certif. denied, 152 N.J. 12 (1997). Thus, “[l]aw guardians are obliged to make the wishes of their clients known, to make recommendations as to how a child client’s desires may best be accomplished, to express any concerns regarding the child’s safety or well-being and in a proper case to suggest the appointment of a guardian ad litem.” Div. of Youth & Family Servs. v. Robert M., 347 N.J. Super. 44, 70 (App. Div.), certif. denied, 174 N.J. 39 (2002).

The decision whether to appoint a law guardian is left to the discretion of the trial judge. See R. 5:8A. However, Rule 5:8A does not establish when the responsibility of a court-appointed law guardian terminates.

The age of majority in New Jersey is eighteen. N.J.S.A. 9:17B-1 to -3. See Green v. Auerbach Chevrolet Corp., 127 N.J. 591, 594-95 (1992). However, issues regarding support, custody, and visitation of children who are older than eighteen are often resolved by post-judgment motion in the family courts. That is so because emancipation, or the “conclusion of the fundamental dependent relationship between parent and child–is not a self-executing principle.” Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006). Attainment of the age of majority – eighteen – establishes prima facie, but not conclusive, proof of emancipation. Gac v. Gac, 186 N.J. 535, 542 (2006). Emancipation is reached “when the fundamental dependent relationship between parent and child is concluded, the parent relinquishes the right to custody and is relieved of the burden of support, and the child is no longer entitled to support.” Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div. 1997).

Rule 5:8A provides for the appointment of a law guardian in “all cases where custody or parenting time/visitation is an issue[.]” Family Part courts can continue to order custodial or visitation arrangements for children over the age of eighteen of divorced or divorcing parents. Quinn, supra, 247 N.J. Super. at 579.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

A law guardian acts as an independent legal advocate for the child and takes an active part in the court proceedings originally appeared on NJ Family Issues on January 8, 2012.

N.J.S.A. 9:2-4 provides that “it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage. . . .” Courts can, however, “continue to order custodial arrangements for children over the age of 18 of divorced or divorcing parents.” Quinn v. Johnson, 247 N.J. Super. 572, 579 (Ch. Div. 1991). “[T]he mere attainment of the age of 18 does not deprive th[e] court . . . of making a custody determination.” Id. at 580. See N.J.S.A. 9:17B-3 (noting an exception to the concept of majority in that the court has the right “to take any action it deems appropriate and in the interest of a person under 21 years of age”).

Visitation issues, including a restriction of a parent’s visitation rights, are determined on a best-interest standard, giving weight to the factors set forth in N.J.S.A. 9:2-4(c), which include “the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision[.]” V.C. v. M.J.B., 163 N.J. 200, 228, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000); Finamore v. Aronson, 382 N.J. Super. 514, 522-23 (App. Div. 2006). Although a child’s preference is not determinative in visitation matters, the “desires of older children may be entitled to stronger consideration than that afforded to younger children[.]” Wilke v. Culp, 196 N.J. Super. 487, 498 (App. Div. 1984), certif. denied, 99 N.J. 243 (1985). Findings by the trial court are binding on appeal when supported by adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998).

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

The mere attainment of the age of 18 does not deprive the court of making a custody determination originally appeared on NJ Family Issues on January 8, 2012.

In Schulze v. Morris, 361 N.J. Super. 419, 426 (App. Div. 2003), the court concluded that a residential custodial parent’s relocation within the State does not constitute a removal action pursuant to N.J.S.A. 9:2-2, requiring advance approval for the proposed relocation. Although approval is not needed under the statute to move to another part of the State, the court explained:

When a non-residential custodial parent opposes the intrastate relocation of his or her child by the primary residential custodial parent on the basis that the move will be deleterious to the relationship between the child and the non-residential custodial parent, or will be otherwise inimical to the child’s best interests, those factors outlined by Justice Long in Baures, supra, 167 N.J. at 116-17, 770 A.2d 214, as well as other relevant matters, should be considered in determining whether modification of the custodial and parentingtime arrangement is warranted. Of course, as noted by the Court, “not all factors [would] be relevant and of equal weight in every case.” Id. at 117, 770 A.2d 214.

[Schulze, supra, 361 N.J. Super. at 426-27.]

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

A residential custodial parent’s relocation within the State originally appeared on NJ Family Issues on January 8, 2012.

“A party seeking modification of a judgment, incorporating a PSA regarding custody or visitation, must meet the burden of showing changed circumstances and that the agreement is now not in the best interests of a child.” Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003); see also Faucett v. Vasquez, 411 N.J. Super. 108, 119 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010). The issue is “two-fold and sequential.” Id. at 127. The party seeking a modification “must first make a prima facie showing . . . that a genuine issue of fact exists bearing upon a critical question such as the best interests of the child[]. . . . Once a prima facie showing is made, [the party] is entitled to a plenary hearing to resolve the disputed facts.” Id. at 127-28.

When parties voluntarily enter into an agreement, “[s]ubsequent events which should have been in contemplation of the parties as possible contingencies when they entered into the contract will not excuse performance.” Schiff v. Schiff, 116 N.J. Super. 546, 561 (App. Div. 1971), certif. denied, 60 N.J. 139 (1972).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

A party seeking modification of a judgment, incorporating a PSA regarding custody or visitation, must meet the burden of showing changed circumstances and that the agreement is now not in the best interests of a child originally appeared on NJ Family Issues on December 11, 2011.

In any custody determination, “the primary and overarching consideration is the best interest of the child.” Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). In an appellate review of a trial court’s custody determination, the conclusions of a trial judge are entitled to great weight and will not be lightly disturbed on appeal unless his or her findings could not reasonably have been reached on sufficient credible evidence present in the record. See Beck v. Beck, 86 N.J. 480, 496 (1981).

To establish a prima facie case for modification of a custody arrangement, the moving party must show a substantial change in circumstances that affects the welfare of the child such that her best interests would be better served by modifying custody. Mimkon v. Ford, 66 N.J. 426, 438 (1975); Hand, supra, 391 N.J. Super. at 105; Chen v. Heller, 334 N.J. Super. 361, 380 (App. Div. 2000); Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied, 28 N.J. 147 (1958).

A judge must consider a request for modification in accordance with the procedural framework established by the Supreme Court in Lepis v. Lepis, 83 N.J. 139, 157-59 (1980). Under Lepis, the first question is whether the party seeking modification has made a prima facie showing of a substantial change in circumstances. Id. at 157; Hand, supra, 391 N.J. Super. at 105. If a prima facie showing is made, then Lepis requires the judge to consider whether discovery is needed and to define its scope. Lepis, supra, 83 N.J. at 157-58; R. 4:10-2; R. 5:8-1 to -6. Following discovery, if there is a genuine dispute of fact regarding the welfare of the child, then a plenary hearing must be held. Lepis, supra, 83 N.J. at 159; Hand, supra, 391 N.J. Super. at 105.

To determine whether there is a prima facie showing of changed circumstances, a judge must consider the terms of the order he or she is asked to modify. The legal principles governing modification of an order addressing custody and parenting time are clear. Modification is permitted because the law recognizes that “the conditions which would satisfy the best interests of the child during all of [his or her] minority [cannot] be conclusively determined in one decree[.]” Borys v. Borys, 76 N.J. 103, 111 (1978). Nonetheless, a parent cannot obtain a modification simply because that parent does not like the arrangement in place. The focus of every judicial determination about custody and parenting time is “on the ‘safety, happiness, physical, mental and moral welfare’ of the children.” Hand, supra, 391 N.J. Super. at 105 (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)).

Under these standards, the parent seeking the change must establish: 1) the present schedule for custody and parenting time under the current order; 2) the circumstances that changed after that order was entered; and 3) the adverse effect of the new circumstances and current parenting arrangement in a child’s best interest. See Sheehan, supra, 51 N.J. Super. at 287-88. In presenting the relevant evidence to the trial judge, the parent should understand that the judge must disregard “[c]onclusory allegations” about changes in circumstances and their impact on the child. See Lepis, supra, 83 N.J. at 159 (discussing the inadequacy of unsubstantiated allegations on an application to modify support). Testimony or other evidence establishing facts to support the allegations is essential. See Hand, supra, 391 N.J. Super. at 112.

In ruling on an application to modify parenting time, the judge must consider the evidence and decide whether the parent seeking a new arrangement has met the legal standards discussed above. That task requires the judge to discuss the evidence, resolve factual disputes, and state why the parent seeking the change established or failed to establish a reason for altering the parenting arrangement. See R. 1:7-4.

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

To establish a prima facie case for modification of a custody arrangement, the moving party must show a substantial change in circumstances that affects the welfare of the child such that her best interests would be better served by modifying custody originally appeared on NJ Family Issues on December 8, 2011.

In N.J.S.A. 3B:12A-1, the Legislature declared it was “in the public interest to create a new type of legal guardianship that addresses the needs of children and caregivers in long-term kinship relationships.” As the Legislature’s findings make clear, the meaning of “neither feasible nor likely” forms a core basis for the creation of a Kinship Legal Guardianship (KLG), N.J.S.A. 3B:12A-1 to -7:

a. There is an increase in the number of children who cannot reside with their parents due to the parents’ incapacity or inability to perform the regular and expected functions of care and support of the child;
b. An increasing number of relatives, including grandparents, find themselves providing care on a long-term basis to these children without court approved legal guardianship status because the caregivers either are unable or unwilling to seek termination of the legal relationships between the birth parent and the child, particularly when it is the caregiver’s own child or sibling who is the parent. In these cases, adoption of the child is neither feasible nor likely, and it is imperative that the State create an alternative, permanent legal arrangement for children and their caregivers.

[N.J.S.A. 3B:12A-1(b).]

Based upon these findings, the Legislature found it necessary “to add another alternative, permanent placement option, beyond custody, without rising to the level of termination of parental rights, for caregivers in relationships where adoption is neither feasible nor likely [.]” N.J.S.A. 3B:12A-1(c).

These findings clarify that it is the inability or unwillingness of a caregiver to adopt that renders adoption “neither feasible nor likely.” See also N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 222 (2010) (observing that, in adopting the KLG Act, Legislature agreed that “[w]hen a child is placed with a relative, termination is both unnecessary and unwise unless the relative wishes to adopt the child or is unwilling to provide long-term care” (emphasis added) (internal citations and quotation marks omitted)); N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 508 (2004) (“When adoption is neither feasible nor likely, particularly in those cases where the caregiver’s own child or sibling is the parent, an alternative, permanent legal arrangement is available for children and their caregivers.”); N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 213 (App. Div. 2007) (finding requirement of third prong that “adoption is neither feasible nor likely” was satisfied when paternal grandparents were not willing to adopt children), certif. denied, 192 N.J. 243 (2007).

“A kinship legal guardian may only be appointed when ‘adoptionof the child is neither feasible nor likely[,]‘” P.P., supra, 180 N.J. at 509 (quoting N.J.S.A. 30:4C:15.1(3)(b)).

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

Kinship Legal Guardianship originally appeared on NJ Family Issues on December 7, 2011.

When a caregiver in a case brought by the Division of Youth and Family Services (DYFS) unequivocally asserts a desire to adopt, the finding required for a Kinship Legal Guardianship (KLG), N.J.S.A. 3B:12A-1 to -7, that “adoption of the child is neither feasible nor likely” cannot be met.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

When a caregiver in a case brought by the Division of Youth and Family Services (DYFS) unequivocally asserts a desire to adopt, the finding required for a Kinship Legal Guardianship (KLG) that “adoption of the child is neither feasible nor likely” cannot be met originally appeared on NJ Family Issues on December 7, 2011.

The burden of proof in abuse or neglect proceedings is proof by a preponderance of the evidence. N.J.S.A. 9:6-8.46b(1). See also New Jersey Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 615 (App. Div. 2010).

Title 30 actions where the Division initiates an action to terminate parental rights, it is required to prove, by clear and convincing evidence, that termination is in the best interests of the child. New Jersey Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). All other proceedings under Title 30 are governed by the preponderance of the evidence standard. Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (“As a general rule, the preponderance of the evidence standard applies in civil actions.” (citing State v. Seven Thousand Dollars, 136 N.J. 223, 238 (1994))).

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Where the Division initiates an action to terminate parental rights, it is required to prove, by clear and convincing evidence, that termination is in the best interests of the child originally appeared on NJ Family Issues on November 29, 2011.