If the combined net income of the parents is more than $187,200 per year [i.e. $3,600 per week], the court shall apply the guidelines up to $187,200 and supplement the guidelines-based award with a discretionary amount based on the remaining family income (i.e., income in excess of $187,200) and the factors specified in N.J.S.A. 2A:34-23.
[Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2403 (2010).]

Also, Appendix IX-F provides that:

For cases in which the combined net income of the parents is more than $3,600 per week [i.e. $187,200 per year], the child support award at $3,600 represents the minimum basic support award. The court must add a discretionary amount of child support to the minimum basic award based on the factors specified in N.J.S.A. 2A:34-23.

[Pressler, supra, Appendix IX-F to R. 5:6A at 2466.]

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

Pursuant to the amendment to N.J.S.A. 2A:17-56.9a, “child support orders are no longer subject to automatic court reviews every three years.” Martin v. Martin, 410 N.J. Super. 1, 4 (Ch. Div. 2009). Instead,

the child support amount is automatically adjusted every two years to reflect the cost of living, with each party having an opportunity to contest the adjustment. Pursuant to Rule 5:6B, such contests are limited to situations (1) where an obligor’s income has not increased at a rate at least equal to the rate of inflation or (2) where the order itself provides for an alternative periodic cost-of-living adjustment. Otherwise, parties may contest a cost-of living adjustment or seek a modification of a prior child support order only by showing that such a modification is warranted based upon changed circumstances. The mere passage of time since the entry of the child support order is not a sufficient reason to request that a court review the order or require that the parties exchange financial information.

[Ibid.]

Consequently, as New Jersey utilizes an adjustment program, in order to have a court review child support outside the automatic two-year adjustment, the party seeking relief must establish that there has been a substantial change of circumstances since the time of the last order. See Lepis v. Lepis, 83 N.J. 139, 157 (1980) (“The party seeking modification has the burden of showing such ‘changed circumstances’ as would warrant relief from the support or maintenance provisions involved.”).

A support order is “always subject to review and modification on a showing of ‘changed circumstances.’” Id. at 146. The trial judge is afforded “‘the utmost leeway and flexibility in determining what is just and equitable’” in assessing whether a support obligation should be modified. Id. at 147 (quoting Smith v. Smith, 72 N.J. 350, 360 (1977)). As noted, the party seeking modification carries the burden of showing “changed circumstances.” Id. at 157. “A prima facie showing of changed circumstances must be made before a court will order discovery . . . . When the movant is seeking modification of child support, the guiding principle is the ‘best interests of the children.’” Ibid.

A variety of situations may constitute “changed circumstances,” including a change in the supporting spouse’s income. Id. at 151. But, an

alleged reduction in income [is] only part of the overall circumstances [the Family Part judge is] required to consider in determining whether [the supporting spouse] met the burden of demonstrating a right to either discovery or a plenary hearing . . . . The trial court must consider — in both fixing and altering a support obligation — what is equitable and fair in all the circumstances. This requires not only an examination of the parties’ earnings but also how they have expended their income and utilized their assets.

[Donnelly v. Donnelly, 405 N.J. Super. 117, 130 (App. Div. 2009).]

Additionally, “it is not enough that an obligor demonstrate a reduction in income; the obligor must also demonstrate how he or she has attempted to improve the diminishing circumstances.” Id. at 130, n.5.

When making its decision, the trial court should consider all of the movant’s assets, as

[i]t has long been the law of this State that courts have the authority to consider the assets and other financial circumstances of the parties in addition to their income when determining child support. The Legislature has specifically expressed its intent in that regard through adoption of N.J.S.A. 2A:34-23a. . . . [It is] clear [that] child support [is] based upon total family resources and all parents’ resources should be considered available for support of the children.

[Connell v. Connell, 313 N.J. Super. 426, 432 (App. Div. 1998) (citing Cleveland v. Cleveland, 249 N.J. Super. 96, 101-02 (App. Div. 1991)).]

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.

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 plenary hearing must be conducted when a party seeking to modify a custody order demonstrates that “due to a substantial change in circumstances from the time that the current custody arrangement was established, the best interests of the child would be better served by a transfer in custody.” Chen v. Heller, 334 N.J. Super. 361, 380 (App. Div. 2000); see also R. 5:8-6.

The moving party must demonstrate that there is a genuine and substantial factual dispute regarding the welfare of the child. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). Thus, if the trial court determines that there exists a factual dispute regarding the welfare of the child, a plenary hearing is necessary. Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1975).

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

In removal cases, where the custodial parent seeks to relocate the child, the court considers the interests of the parents and the child. Baures v. Lewis, 167 N.J. 91, 115-16 (2001).

Consequently, in deciding which parent should be awarded primary custody, the court must apply the best interests standard to determine which parent can better advance the child’s welfare. Id. at 115.

The Baures standards is only applicable in instances where the relocating parent is the parent of primary residence. See O’Connor v. O’Connor, 349 N.J. Super. 381, 398 (App. Div. 2002).

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 judgment involving the custody of minor children is subject to modification at any time upon the ground of changed circumstances.” Innes v. Carrascosa, 391 N.J. Super. 453, 500 (App. Div. 2007) (citing Sheehan v. Sheehan, 51 N.J. Super. 276, 295 (App. Div.), certif. denied, 28 N.J. 147 (1958)).

The party seeking to modify a custody judgment bears the burden of proof. Ibid. Moreover, the moving party must demonstrate a change in circumstances affecting the welfare of the child. Sheehan, supra, 51 N.J. Super. at 287-88.

Custody determinations are governed by the bests interests of the child standard. Terry v. Terry, 270 N.J. Super. 105, 119 (App. Div. 1994). The primary consideration is the happiness and welfare of the child, specifically the “safety, happiness, physical, mental and moral welfare of the child.” Sheehan, supra, 51 N.J. Super. at 291.

Judicial-custody determinations are controlled by N.J.S.A. 9:2-4, which requires the court to take into consideration the following factors prior to making an award of custody:

the parents’ ability to agree, communicate and cooperate in matters relating to the child; the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child’s education; the fitness of the parents; the geographical proximity of the parents’ homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents’ employment responsibilities; and the age and number of the children. A parent shall not be deemed unfit unless the parents’ conduct has a substantial adverse effect on the child.

[Ibid.]

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.

N.J.S.A. 30:4C-23 permits a parent in a guardianship proceeding to consent to the surrender of parental rights, freeing the child for an adoption arranged by the New Jersey Division of Youth and Family Services (DYFS or the Division). N.J.S.A. 30:4C-20. The statute provides a vehicle to effectuate a permanent plan for a child who has been removed from his or her home; however, the statute does not provide any additional framework to review a post-judgment request by the parent to vacate such a surrender.

New Jersey’s statutes governing adoptions, N.J.S.A. 9:3-37 to -56, also address a parent’s “surrender,” defined as “a voluntary relinquishment of all parental rights by a birth parent, . . . for purposes of allowing a child to be adopted.” N.J.S.A. 9:3-38(j). Title 9 explicitly provides the manner in which a voluntary surrender to “an approved agency,” followed by the child’s adoption facilitated by that agency, shall be accomplished.

The agency shall inform the parent that (1) the surrender of parental rights “means the permanent end of the relationship and all contact between the parent and child”; (2) “the surrender shall constitute relinquishment of the person’s parental rights in or guardianship or custody of the child . . . and consent by the person to adoption of the child”; and (3) counseling is offered “prior to the execution of the surrender.” N.J.S.A. 9:3-41(a). The Division, as part of the Department of Children and Families, is an approved agency. N.J.S.A. 9:3-38(a).

In order for a surrender pursuant to N.J.S.A. 9:3-41(a) to be enforceable, a parent must knowingly and voluntarily express his or her understanding that custody of his or her child is relinquished and their parental rights are terminated in favor of the agency, which will effectuate the child’s adoption. A statutory surrender made under this provision “shall be valid and binding . . . and shall be irrevocable except at the discretion of the approved agency taking such surrender or upon order or judgment of a court of competent jurisdiction setting aside such surrender upon proof of fraud, duress or misrepresentation by the approved agency.” N.J.S.A. 9:3-41(a).

Rule 4:50-1(a) (mistake, inadvertence, surprise or excusable neglect), (b) (newly discovered evidence), and (f) (other good cause), is applicable to consensual final judgments. DEG, L.L.C. v. Tp. of Fairfield, 198 N.J. 242, 261 (2009). Generally, a motion for relief from judgment based upon the grounds specified in Rule 4:50-1 should be “granted sparingly.” F.B. v. A.L.G., 176 N.J. 201, 207 (2003) (citing Pressler, Current N.J. Court Rules, comment 1.1 on R. 4:50-1 (2003)). An applicant’s right to relief examines the totality of the circumstances and “[t]he decision whether to vacate a judgment on one of the six specified grounds is a determination left to the sound discretion of the trial court, guided by principles of equity.” Ibid. A “judgment will be left undisturbed ‘unless it represents a clear abuse of discretion.’” Ibid. (quoting Housing Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)).

Although the Supreme Court has affirmed that Rule 4:50-1 is the appropriate vehicle when seeking to vacate a judgment terminating parental rights, In re Guardianship of J.N.H., 172 N.J. 440, 474 (2002), the Court specifically noted that when vacating a judgment of guardianship “the future of a child is at stake.” Therefore, to succeed in attacking the judgment, a moving parent must satisfy a two-part test.

First, a parent’s motion “must be supported by evidence of changed circumstances” as the “moving party bears the burden of proving that events have occurred subsequent to the entry of a judgment to justify vacating the judgment.” Id. at 473. A showing of those reasons articulated under Rule 4:50-1(a) to (f) satisfies this provision. However, this alone will not be sufficient to succeed as review must encompass a second condition: in a “termination case[,] the best interests of the child must be considered.” Ibid.; see also Division of Youth & Family Servs. v. L.L., 201 N.J. 210, 228 (2010) (stating, in addition to proving changed circumstances, a parent must show clear and convincing evidence that vacating judgment of KLG is in child’s best interest). This prong requires a weighing of the effects setting aside the judgment may have on the child’s stability and permanency. J.N.H., supra, 172 N.J. at 474. Consequently, the “the primary issue is . . . what effect the grant of the motion would have on the child.” Id. at 475.

Relief from the judgment under subsection (f) requires a showing of exceptional circumstances that demonstrate redress is necessary, Baumann v. Marinaro, 95 N.J. 380, 393 (1984); Manning Eng’g, Inc. v. Hudson County Park Comm’n, 74 N.J. 113, 122 (1977), and that enforcement of the order or judgment would be unjust, oppressive or inequitable. J.N.H., supra, 172 N.J. at 473-74.

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.

N.J.S.A. 2A:4A-26 — “involuntary waiver to adult court”:

(1) Where juvenile is at least 14 at time of delinquent act & …..
(2) there is probable cause to believe that act of juvenile, if done by adult, would constitute….. {See In re AT 245 N.J. Super. 245 (1991)}

(d) an offense against a person, committed in an aggressive, violent and willful manner…….. {See State v. Bessick, 309 N.J. Super. 126 (App. Div. 1998); also, State v. RDG 108 N.J. 1 (1987); CAH v. BAR 89 N.J. 326 (1982); In re SM, 211 N.J. Super. 675 (App. Div. 1986); In re AJ, 232 N.J. Super. 274 (App. Div. 1989); BUT, See In re HH, 333 N.J. Super. 141 (Chan. Div.) aff’d 333 N.J. Super. 104 (App. Div. 1999).}

Note: In In re KJ, A-5108-93T1, January 17, 1995, the court found juvenile charged with 2nd degree robbery (but where facts revealed it was purse snatching of 83 year old victim who lost her balance & fell to the ground) had not committed an “aggressive, violent & willful offense within the meaning of the waiver statute.”

Special than you to Durrell Ciccia, Esq., who contributed in significant part to this Blog Post.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.
My legal and mediation services are offered to Polish-speaking and other clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.
My legal and mediation services are offered to Polish-speaking and other 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.
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.
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
Adwokat / Prawnik Pawel Kostro mowi po polsku.

The decision to use the shared parenting worksheet is discretionary with the court. Child Support Guidelines, Pressler, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2396 (2010). The shared parenting worksheet may be employed where:

(1) A parenting plan that specifies parenting times and responsibilities must be filed with or ordered by the court.
(2) The PAR [Parent of Alternate Residence] has or is expected to have the child for the substantial equivalent of two or more overnights per week over a year or more (at least 28% of the time) and the PAR can show that separate living accommodations for the child are provided during such times (i.e. evidence of separate living accommodations maintained specifically for the child during overnight stays).

[Ibid.]

If these criteria are met, the court may, at its discretion, elect to use the shared parenting worksheet. Ibid.

Decisions regarding the use of this worksheet are an abuse of discretion only if “a manifest error or injustice occurs.” See State v. Torres, 183 N.J. 554, 572 (2005) (explaining the abuse of discretion standard).

The Child Support Guidelines also provide that

[f]or the purpose of these guidelines, visitation is a level of parental participation in child-rearing that is less than the substantial equivalent of two or more overnights with the child each week (approximately 28% of overnights excluding vacations and holidays). Overnight means the majority of a 24-hour day (i.e. more than 12 hours).

[Child Support Guidelines, supra, Appendix IX-A to R. 5:6A at 2393.]

Similarly, § 14(b)(1) defines “overnight” as “the majority of a 24-hour day (i.e. more than 12 hours).” Id. at 2396.

A court’s decision to ignore the meaning of the term “overnight,” precisely defined in the Appendix as more than twelve hours in a twenty-four-hour day, was an abuse of discretion and manifest error.

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.

In fixing an order of child support, trial courts must begin with the parties’ average gross taxable income per week. Child Support Guidelines, Appendix IX-B to R. 5:6A at 2413.

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.