“‘[T]he enforcement, collection, modification and extinguishment of unpaid arrearages in . . . child support payments are matters addressed to the sound discretion of the court.’” In re Rogiers, 396 N.J. Super. 317, 327 (App. Div. 2007) (quoting Mastropole v. Mastropole, 181 N.J. Super. 130, 141 (App. Div. 1981)). The exercise of this discretion must entail a “careful examination and weighing of all of the essential facts.” Mastropole, supra, 181 N.J. Super. at 141.

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 enforcement, collection, modification and extinguishment of unpaid arrearages in child support payments are matters addressed to the sound discretion of the court originally appeared on NJ Family Issues on January 26, 2012.

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.

In two cases — Ronan v. Adely, 182 N.J. 103 (2004) and Gubernat v. Deremer, 140 N.J. 120 (1995) — the Court authorized application of a presumption in the parent of primary residence (PPR)’s favor in name-change disputes when the child was born out of wedlock.

In this matter of first impression, the court rejected the adoption of such a presumption when the child was born in wedlock to parents who subsequently divorce.

Regardless of whether a name change is sought by motion in an existing family action or by a new and separate action in the manner provided by N.J.S.A. 2A:52-1, the trial court remains obligated to ensure that the parties have a full and fair opportunity to present evidence and arguments regarding the application’s merits.

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

Name-change disputes when the child was born in wedlock to parents who subsequently divorce originally appeared on NJ Family Issues on January 26, 2012.

Newburgh [Newburgh v. Arrigo, 88 N.J. 529 (1982)] factor four, a parent’s ability to pay, is acknowledged to be the most significant with regard to college contribution. See Moehring v. Maute, 268 N.J. Super. 477, 481 (Ch. Div. 1993); Weitzman v. Weitzman, 228 N.J. Super. 346, 357 (App. Div. 1988), certif. denied, 114 N.J. 505 (1989).

A trial judge’s authority to impute income in the process of assessing child support is well-established. The Child Support Guidelines indicate that the “‘[t]he fairness of a child support award . . . is dependent on the accurate determination of a parent’s net income. If the court finds that either parent is, without just cause, voluntarily underemployed or unemployed, it shall impute income to that parent . . . .” Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2504 (2012).

In deciding whether to impute income, a court considers:

(1) what the employment status and earning capacity of that parent would have been if the family had remained intact or would have formed,
(2) the reason and intent for the voluntary underemployment or unemployment,
(3) the availability of other assets that may be used to pay support, and
(4) the ages of any children in the parent’s household and child-care alternatives.

[Ibid.]

A trial court’s decision to impute income must be “based on a realistic assessment of capacity to earn.” Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004).

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 trial court’s decision to impute income must be based on a realistic assessment of capacity to earn originally appeared on NJ Family Issues on January 24, 2012.

The Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-A to R. 5:6A at 2505 (2012) permits the court to impute income to a party who is underemployed based on potential employment and earning capacity, using the parent’s work history, occupational qualifications and educational background. If potential earnings cannot be determined, the court may impute income based on the parent’s most recent wage or recorded benefit. Ibid. Alimony awards must take into account earning capacity. Mahoney v. Mahoney, 91 N.J. 488, 504-05 (1982).

“Imputation of income is a discretionary matter not capable of precise or exact determination but rather requiring a trial judge to realistically appraise capacity to earn and job availability.” Storey v. Storey, 373 N.J. Super. 464, 474 (App. Div. 2004). Imputation is in the discretion of the court, based on the evidence presented. Sternesky v. Salcie-Sternesky, 396 N.J. Super. 290, 307-08 (App. Div. 2007). A trial judge’s decision to impute income of a specified amount will not be overturned unless the underlying findings are inconsistent with or unsupported by competent evidence. Gordon, supra, 380 N.J. Super. at 76; Rolnick v. Rolnick, 262 N.J. Super. 343, 359-60 (App. Div. 1993).

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 court may impute income to a party who is underemployed based on potential employment and earning capacity, using the parent’s work history, occupational qualifications and educational background originally appeared on NJ Family Issues on January 17, 2012.

Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-B to R. 5:6A at 2521 (2012), provides that the “value of in-kind benefits” may be included in gross income for purposes of calculating child support. “In-kind” income is the “value of goods, services, or benefits received in lieu of wages and in the course of employment” and which “reduce personal living expenses of the recipient.” Id. at 2522.

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

The value of in-kind benefits may be included in gross income for purposes of calculating child support originally appeared on NJ Family Issues on January 17, 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.

When PSA terms are “plain and explicit” and “set forth in clear and unambiguous language, leaving no room for interpretation,” the court will enforce them “as written and agreed to by the parties, absent a substantial change in circumstances” or unless they “would no longer be fair or equitable.” Dolce v. Dolce, 383 N.J. Super. 11, 21 (App. Div. 2006); see also Eaton v. Grau, 368 N.J. Super. 215, 224 (App. Div. 2004) (perceiving “no inequity or manifest injustice in enforcing the plain and clear terms of the PSA as found by the motion judge”). Moreover, “‘fair and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed.’” Konzelman v. Konzelman, 158 N.J. 185, 193-94 (1999) (quoting Smith v. Smith, 72 N.J. 350, 358 (1977)).

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.

When PSA terms are plain and explicit and set forth in clear and unambiguous language, leaving no room for interpretation, the court will enforce them as written and agreed to by the parties, absent a substantial change in circumstances or unless they would no longer be fair or equitable originally appeared on NJ Family Issues on January 8, 2012.