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.

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))).

NOTE: Adwokat / Prawnik Pawel Kostro mowi po polsku.

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.

The psychological parent doctrine was refined by our Supreme Court in V.C. v. M.J.B., 163 N.J. 200, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000). In order to determine whether a party is a psychological parent, a party must establish:

[(1)] the legal parent must consent to and foster the relationship between the third party and the child;
[(2)] the third party must have lived with the child;
[(3)] the third party must perform parental functions for the child to a significant degree; and
[(4)] most important, a parent-child bond must be forged.

[V.C., supra, 163 N.J. at 223.]

A party designated with the legal title of psychological parent “stands in parity with the legal parent.” Id. at 227 (citing Zack v. Fiebert, 235 N.J. Super. 424, 432 (App. Div. 1989)). Therefore, psychological parents have standing to bring a custody suit which is “then determined on a best interests standard, as if two legal parents were in conflict[.]” P.B. v. T.H., 370 N.J. Super. 586, 596-97 (App. Div. 2004).

In V.C. v. M.J.B., 163 N.J. 200, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000), the Court noted psychological parenting can be created only where the legal parent cedes “a measure of parental authority and autonomy” to the third party, granting “that third party rights and duties vis-à-vis the child that the third party’s status would not otherwise warrant.” V.C., supra, 163 N.J. at 224. Accordingly, “a relationship based on payment by the legal parent to the third party [like a paid nanny or babysitter] will not qualify.” Ibid.

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

The psychological parent originally appeared on NJ Family Issues on November 18, 2011.

The Legislature has established the Division as “the State agency for the care, custody, guardianship, maintenance and protection of children[.]” N.J.S.A. 30:4C-2(a). In that role, the Division is authorized to temporarily remove children from the home of their parents or guardians to avert the child’s abuse and neglect, N.J.S.A. 9:6-8.21 to -8.73, or when the child’s best interests are not secured by their parents who are in need of services, N.J.S.A. 30:4C-12. Further, the Division is authorized to initiate an action to permanently sever the parent-child relationship when diligent efforts to secure the child’s safe return to a parent’s home have failed. N.J.S.A. 30:4C-15. In most cases, pending the litigation, a child involved in a protective services action is ordered to remain in the care, custody and supervision of the Division.

The Division identifies and approves a child’s placement with a resource family to provide day-to-day care. The legal relationship between the resource parents and the child emanates through a contract with the Division sanctioned by state law. See Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 845, 97 S. Ct. 2094, 2110, 53 L. Ed 2d 14, 35 (1977).

The standard contract between the Division and the resource family seeks to give the child in placement a stable, safe, home-life, guided and cared for by accepting, nurturing adults, while recognizing the Division alone holds the responsibility “for making permanent plans for each child placed, including the termination of placement.” Under the terms of this contract, resource parents specifically agree not “to make their own plans for the child’s future” and accept their role of “preparing the child for any major changes in his/her living situation, including leaving the home.”

So too, securing adoption of a child under the protection of the Division occurs only through the Division’s actions. In re A., 277 N.J. Super. 454, 465 (App. Div. 1994). For example, N.J.S.A. 30:4C-26.7 provides resource parents who have cared for a child in placement for fifteen months or more “may apply to the Division . . . for the placement of the child with them for the purpose of adoption[.]” The statute designates the Division as the State authority to seek the petition for adoption. It does not grant an independent right to file for adoption to the resource parents. Ibid.

The Legislature expressly addressed the vital role resource parents play. Particularly recognizing their superior knowledge of the child’s physical and emotional status, resource parents are entitled to “receive written notice of and an opportunity to be heard at any review or hearing held with respect to the child[.]” N.J.S.A. 9:6-8.19a. See also N.J.S.A. 30:4C-12.2 (granting resource family right to notice and the right to be heard at a review or hearing with respect to the child); N.J.S.A. 9:3-45.2 (including a similar provision in action relating to the adoption of a child in the Division’s custody). Further, this right is echoed in the Supreme Court’s adoption of Rule 5:12-4(i), which requires the Family Part judge to

ensure that the foster parent . . . currently providing residential care to the child is given notice of all hearings . . . in writing . . . [including] the date, time, and location of the hearing . . ., and that he or she has a right to appear at that time to make a statement to the court of his or her views regarding the case and the interests of the child.

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 role of a resource family originally appeared on NJ Family Issues on November 18, 2011.

Intervention as of right is appropriate where a party not named in the litigation (1) “claims an interest relating to the property or transaction which is the subject of the action,” (2) shows she “is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest,” (3) demonstrates her “interest is [not] adequately represented by existing parties,” and (4) files a “timely” application to intervene. R. 4:33-1. See also Meehan v. K.D. Partners, L.P., 317 N.J. Super. 563, 568 (App. Div. 1998). In reviewing a request to intervene pursuant to Rule 4:33-1, once a movant meets the rule’s requirements, intervention must be permitted. Am. Civil Liberties Union of N.J., Inc. v. Cnty. of Hudson, 352 N.J. Super. 44, 70 (App. Div.), certif. denied, 174 N.J. 190 (2002). Permissive intervention pursuant to Rule 4:33-2, requires a trial court to liberally determine “`whether intervention will unduly delay or prejudice the adjudication of the rights of the original parties.’” Ibid. (quoting Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 341 (1996)).

The Act at N.J.S.A. 9:6-8.19a affords resource parents notice of court hearings and the opportunity to appear and provide a statement on any issue involving the child in a pending Title Nine action. A companion provision appears in Title Thirty at N.J.S.A. 30:4C-61(c)(7) and at N.J.S.A. 9:3-45.2 in adoption proceedings. These statutes allow resource parents the right to voice their objections to a proposal to remove the child from their care. However, the Legislature clearly circumscribed this right, stating “the resource family[,] parent or relative shall not be made a party to the review or hearing solely on the basis of the notice and opportunity to be heard.” N.J.S.A. 9:6-8.19a. See also N.J.S.A. 9:3-45.2 (affording similar rights to resource parents in adoption actions); N.J.S.A. 30:4C-12.2 (same in guardianship actions). Further, Rule 5:12-4(i) reinforces this limitation, stating, “[t]he notice shall further state that, in accordance with law, such person is not made a party to the case and that he or she may not be permitted to be present in the courtroom except for purposes of making a statement to the court.”

The right to inform the court does not impart a legal interest or an expectation to engage experts, demand discovery, appear in the action or cross-examine witnesses.

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

Resource parents the right to voice their objections to a proposal to remove the child from their care; however, such person is not made a party to the case and that he or she may not be permitted to be present in the courtroom except for purposes of making a statement to the court originally appeared on NJ Family Issues on November 18, 2011.

A “surrender” of parental rights is defined to mean “a voluntary relinquishment of all parental rights . . . for the purposes of allowing a child to be adopted.” N.J. Div. of Youth & Family Servs. v. D.M.B., 375 N.J. Super. 141, 146 (App. Div.) (quoting N.J.S.A. 9:3-38(j)), certif. denied, 183 N.J. 586 (2005). Pursuant to N.J.S.A. 30:4C-23, the Division of Youth and Family Services (the Division) is permitted to accept voluntary surrenders from parents in cases where it would be to the permanent advantage of the child to do so. D.M.B., supra, 375 N.J. Super. at 146. “In practice, an `identified surrender’ means that those exact person(s) as to whom the surrender is made shall adopt the children.” Id. at 145. Further, “[i]f for some reason the `identified’ persons are not able to adopt the child, the surrender becomes `void’ and the parental rights of surrendering parent(s) are reinstated.” Ibid.

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

A surrender of parental rights is defined to mean a voluntary relinquishment of all parental rights for the purposes of allowing a child to be adopted originally appeared on NJ Family Issues on November 15, 2011.

In a custody dispute between a natural parent and a third party, there is a presumption in favor of the natural parent which arises from a parent’s “fundamental right to parental autonomy.” N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 38 (2011). That right is recognized as “a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution” which is “rooted in the right to privacy.” Moriarty v. Bradt, 177 N.J. 84, 101 (2003); see also Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438, 442, 88 L. Ed. 645, 652 (1944); Watkins, supra, 163 N.J. at 245; V.C. v. M.J.B., 163 N.J. 200, 218, cert. denied, 531 U.S. 926, 121 S. Ct. 302, 148 L. Ed. 2d 243 (2000).

The parent’s right to custody is not absolute, however. The presumption in favor of the parent will be overcome by “a showing of gross misconduct, unfitness, neglect, or `exceptional circumstances’ affecting the welfare of the child[.]” Watkins, supra, 163 N.J. at 246. When a third party seeks custody, the court must engage in a two-step analysis. First, the court must determine whether the presumption in favor of the legal parent is overcome by either a showing of “unfitness” or “exceptional circumstances.” If either is satisfied, the court must then decide whether awarding custody to the third party would promote the best interests of the child. Watkins, supra, 163 N.J. at 254; P.B. v. T.H., 370 N.J. Super. 586, 594 (App. Div. 2004); see also Moriarty, supra, 177 N.J. at 117 (when the presumption in favor of parental decision-making is overcome, court should determine visitation schedule based upon the child’s best interests).

In Watkins, the Court observed that the full scope of “exceptional circumstances” remained undefined and would evolve through a case-by-case development. Watkins, supra, 163 N.J. at 248. Nonetheless, the Court provided important guidance for the application of that exception. First, the authority to intervene in the parent-child relationship arises from the State’s parens patriae obligation to ensure that children will be properly protected from serious physical or psychological harm. Watkins, supra, 163 N.J. at 246. Therefore, the “exceptional circumstances” standard “always requires proof of serious physical or psychological harm or a substantial likelihood of such harm.” Id. at 248; see also In re D.C., 203 N.J. 545, 571 (2010). However, the proof of harm required to trigger the parens patriae authority is not coextensive with the proof necessary to terminate parental rights. The Court explicitly stated that “exceptional circumstances” may rebut the presumption in favor of a parent seeking custody even if there is not a basis for terminating parental rights on statutory grounds and, indeed, even if the parent is “deemed to be a fit parent.” Watkins, supra, 163 N.J. at 246-48; see also V.C., supra, 163 N.J. at 219; Sorentino v. Family & Children’s Soc. of Elizabeth, 72 N.J. 127, 131-32 (1976)(Sorentino I), appeal after remand, 74 N.J. 313 (1977)(Sorentino II).

The focus of the inquiry is upon protecting the child from harm and so, “exceptional circumstances” may exist when there is a “potentiality” or “probability” of serious physical or psychological injury to the child. Watkins, supra, 163 N.J. at 246-47, 248. In assessing the potential injury, it is helpful to recall the “good illustration” of “exceptional circumstances”, In re Allen, 28 Wn. App. 637, 626 P.2d 16, 23-24 (1981).

Psychological parent cases constitute a subset of “extraordinary circumstances” cases and recognize “that children have a strong interest in maintaining the ties that connect them to adults who love and provide for them.” V.C., supra, 163 N.J. at 219, 221. A third party may become a psychological parent as a result of “the volitional choice of a legal parent to cede a measure of parental authority to a third party[.]” Id. at 227. Four essential requirements must be satisfied for one to become a psychological parent:

[T]he legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and most important, a parent-child bond must be forged.

[Id. at 223.]

Consistent with the criteria for the “exceptional circumstances” exception, the test adopted in V.C. is designed “to evaluate whether a third party has become a `psychological parent’ to a child of a fit and involved legal parent, and thus has standing to bring a custody suit.” P.B., supra, 370 N.J. Super. at 595.

The “critical” factor in that evaluation is whether the legal parents were “participant[s] in the creation of the psychological parent’s relationship with the child[,]” and “cede[d] a measure of parental authority to a third party[.]” V.C., supra, 163 N.J. at 224, 227.

The requirement of cooperation by the legal parent is critical because it places control within his or her hands. That parent has the absolute ability to maintain a zone of autonomous privacy for herself and her child. However, if she wishes to maintain that zone of privacy she cannot invite a third party to function as a parent to her child and cannot cede over to that third party parental authority the exercise of which may create a profound bond with the child.

[Id. at 224.]

A parent’s consent to the creation of such a bond need not be explicit. “For example, where a legal parent voluntarily absents herself physically or emotionally from her child or is incapable of performing her parental duties, those circumstances may constitute consent to the parental role of a third party who steps into her shoes relative to the child.” Id. at 223 n.9. Proof a third party is a psychological parent places that party on a parity with a legal parent for the purpose of acquiring standing to petition for custody, V.C., supra, 163 N.J. at 227; P.B., supra, 370 N.J. Super. at 595.

[W]hen a third party, such as a stepparent, establishes psychological parentage with the child, the third party stands in the shoes of a natural parent. That means that when the “exceptional circumstances” prong is satisfied, for example by establishing that the third party has become a psychological parent, the standard for determining custody is the same as between two fit parents: the child’s best interest test articulated in N.J.S.A. 9:2-4c.”

[163 N.J. at 254.]

See also Moriarty, supra, 177 N.J. at 114; V.C., supra, 163 N.J. at 227; Zack v. Fiebert, 235 N.J. Super. 424, 432-33 (App. Div. 1989). This passage suggests that the “exceptional circumstances” prong is satisfied, without more, by proof of the four criteria necessary to establish psychological parenthood. However, this excerpt from Watkins must be read in conjunction with the principle that preceded it: “Because the right to custody is a fundamental one protected by the constitution,. . . the parental termination or `exceptional circumstances’ standard is required to pass constitutional muster in this type of custody dispute.” 163 N.J. at 254; see also Moriarty, supra, 177 N.J. at 116. The Court has instructed that the “exceptional circumstances” standard “always requires proof of serious physical or psychological harm or a substantial likelihood of such harm.” Watkins, supra, 163 N.J. at 248; see also In re D.C., supra, 203 N.J. at 571. Therefore, such harm must be established before the court undertakes a best interests analysis.

The proof required by procedural due process “turns on both the nature of the private interest threatened and the permanency of the threatened loss,” Santosky v. Kramer, 455 U.S. 745, 758, 102 S. Ct. 1388, 1397, 71 L. Ed. 2d 599, 610 (1982).

The termination of parental rights represents the greatest intrusion upon parental rights, permanently severing a parent’s relationship with his or her own child, a severe and irreversible loss of a fundamental right. Ibid.; In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Consistent with the constitutional and statutory rights of the parent, both the standard and nature of proof is high. The State must “demonstrate by clear and convincing evidence that the natural parent has not cured the initial cause of harm and will continue to cause serious and lasting harm to the child” before such rights are terminated. Ibid. (emphasis added); see also Santosky, supra, 455 U.S. at 768, 102 S. Ct. at 1402, 71 L. Ed. 2d at 616-17; N.J. Div. of Youth & Family Servs. v. T.C., 251 N.J. Super. 419, 440 (App. Div. 1991) (termination justified “to spare the child grievous and irreparable psychological harm”).

An award of custody to a third party does not involve a termination of all parental rights and is neither permanent nor irreversible. See Sorentino II, supra, 74 N.J. at 321 n.1; Faucett v. Vasquez, 411 N.J. Super. 108 (App. Div. 2009), certif. denied, 203 N.J. 435 (2010). Therefore, different legal principles and a less stringent burden of proof apply to the custody determination. See In re Adoption of Children by L.A.S., 134 N.J. 127, 132-33 (1993); Watkins, supra, 163 N.J. at 253-54; see also Hoy v. Willis, 165 N.J. Super. 265, 275-76 (App. Div. 1978). In a termination case, it is necessary to show harm that is both “serious” or “grievous” and “lasting” or “irreparable” to protect the fundamental rights of parents. See J.C., supra, 129 N.J. at 10; T.C., supra, 251 N.J. Super. at 440; see also Santosky, supra, 455 U.S. at 768, 102 S. Ct. at 1402, 71 L. Ed. 2d at 616-17. However, for an award of custody under the “exceptional circumstances” criteria, it is only necessary to prove a substantial likelihood of serious physical or psychological harm. Watkins, supra, 163 N.J. at 248; see also In re D.C., supra, 203 N.J. at 571; Sorentino I, supra, 72 N.J. at 132 (“possibility of serious psychological harm to the child . . . transcends all other considerations” and justifies the court’s exercise of parens patriae authority); Hoy, supra, 165 N.J. Super. at 272.

The best interest factors are set forth in N.J.S.A. 9:2-4(c) and include:

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.

In addition to these factors, the status of the legal parent must be considered as having “significant weight” in the best interests balance. V.C., supra, 163 N.J. at 228. Therefore, “when the evidence concerning the child’s best interests (as between a legal parent and psychological parent) is in equipoise, custody will be awarded to the legal parent.” 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.

Psychological parent cases originally appeared on NJ Family Issues on November 14, 2011.

A custody dispute between a natural parent and a third party is governed by Watkins v. Nelson, 163 N.J. 235 (2000).

In such a dispute, there is a presumption in favor of the natural parent which arises from a parent’s “fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution” and is “rooted in the right to privacy.” Moriarty v. Bradt, 177 N.J. 84, 101 (2003); see also Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L. Ed. 645, 652 (1944); Watkins, supra, 163 N.J. at 245. The parent’s right to custody is not absolute, however. The presumption in favor of the parent will be overcome by “a showing of gross misconduct, unfitness, neglect, or `exceptional circumstances’ affecting the welfare of the child[.]” Watkins, supra, 163 N.J. at 246.

When a third party seeks custody, the court must engage in a two-step analysis. First, the court must determine whether the presumption in favor of the legal parent is overcome by either a showing of “unfitness” or “exceptional circumstances.” If either is satisfied, the court must then decide whether awarding custody to the third party would promote the best interests of the child. Watkins, supra, 163 N.J. at 254; P.B. v. T.H., 370 N.J. Super. 586, 594 (App. Div. 2004).

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.

In a custody dispute between a natural parent and a third party, there is a presumption in favor of the natural parent originally appeared on NJ Family Issues on November 13, 2011.

“Parents have a constitutionally protected right to maintain a relationship with their children.” N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007). That right, however, is not absolute, and “must be balanced against the State’s parens patriae responsibility to protect the welfare of children.” N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007).

N.J.S.A. 30:4C-12 authorizes the Division to seek an order placing a child under its care and supervision or granting the Division custody of a child when a parent “shall fail to ensure the health and safety of the child,” and after an investigation, to be awarded care and supervision or custody of a child in order to “ensure the health and safety of the child.”

The focus of proceedings initiated under Title 9 is assurance that “the lives of innocent children are immediately safeguarded from further injury[.]” N.J.S.A. 9:6-8.8a. The focus of a proceeding brought pursuant to Title 30, however, is “whether or not it is in the child’s best interest to preserve the family unit,” with the child’s health and safety being the paramount concern of our Legislature. N.J.S.A. 30:4C-1(a). Thus, a critical distinction between the two proceedings is the sense of urgency of proceedings commenced under Title 9, in contrast to proceedings commenced under Title 30, which may take place over a longer period of time in order to ensure the permanent safety and well-being of a child.

Thus, a fact-finding hearing is a statutorily mandated proceeding under Title 9 to determine whether a child has been abused or neglected. N.J.S.A. 9:6-8.44. At the fact-finding hearing, the State must prove, by a preponderance of the evidence, that there has been an act of abuse or neglect committed by the parent or other person charged with a legal duty of care for the minor child. N.J.S.A. 9:6-8.46. “If facts sufficient to sustain the complaint under [Title 9] are not established, or the court concludes that its assistance is not required on the record before it, the court shall dismiss the complaint and shall state the grounds for the dismissal.” N.J.S.A. 9:6-8.50c (emphasis added). It is clear from this language that under Title 9, a court is not limited to a finding of abuse or neglect before exercising continuing jurisdiction over a proceeding instituted under Title 9. G.M., supra, 198 N.J. at 399-400. However, in the absence of a finding of abuse or neglect, the court must be satisfied its assistance is still required before continuing to exercise jurisdiction over the matter. N.J.S.A. 9:6-8.50.

On the other hand, a proceeding brought pursuant to Title 30 may arise out of myriad of circumstances that may be minimally intrusive, such as when the Division provides counseling and referral services to families in need; or, the Division’s involvement may arise under more intrusive circumstances, such as when the Division effectuates an emergency removal or ultimately seeks guardianship and termination of parental rights. The latter proceedings “implicate core constitutional rights . . . governed by the clear and convincing evidence standard.” R.D., supra, slip op. at 49.

As a practical matter, Title Nine and Title Thirty proceedings can be consolidated. See N.J.S.A. 9:6-8.24(e) (“Any [abuse or neglect] hearing held before the Family Part may serve as a permanency hearing for the child to provide judicial review and approval of a permanency plan if all the [review and approval] requirements [under Title Thirty] are met.”).

[Id. at 47-48.]

Consequently, the court’s jurisdiction may appropriately be grounded under two concurrent but separate statutory schemes. N.J. Div. of Youth & Family Servs. v. K.M., 136 N.J. 559-60 (1994).

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

Parents have a constitutionally protected right to maintain a relationship with their children; however, that right is not absolute, and must be balanced against the State’s responsibility to protect the welfare of children originally appeared on NJ Family Issues on November 9, 2011.

Under the New Jersey Parentage Act, N.J.S.A. 9:17-38 to -59, a natural mother may file an action to determine paternity at any time until five years after the child reaches the age of majority. N.J.S.A. 9:17-45(b). If the putative father contests paternity, the court shall order genetic testing “upon the request of either party, if the request is supported by a sworn statement by the requesting party which alleges paternity and sets forth the facts establishing a reasonable possibility of the requisite sexual contact between the parties.” N.J.S.A. 9:17-48(d).

“`Best interest of the child’ always remains the fundamental guiding principle of any decision affecting children in the family court,” including matters of paternity. D.O. v. R.B., 317 N.J. Super. 367, 373 (Ch. Div. 1997), aff’d o.b., 317 N.J. Super. 323 (App. Div. 1998). However, “forcing a putative father to give a blood sample to adjudicate a paternity issue implicates his Fourth Amendment right to be free of unreasonable searches,” M.A. v. Estate of A.C., 274 N.J. Super. 245, 248 (Ch. Div. 1993), even if the test constitutes only a “minimal intrusion,” State v. O’Hagen, 189 N.J. 140, 162 (2007). Courts must therefore balance the putative father’s privacy expectations and individual liberty against the compelling public interest of child welfare. S.S. v. E.S., 243 N.J. Super. 1, 11-12 (App. Div. 1990), aff’d, 124 N.J. 391 (1991).

We have achieved this balance by holding that, as a prerequisite to genetic testing, the individual alleging paternity must posit “an articulable reason” for suspecting that the putative father is the child’s biological father. Id. at 12. This standard requires “something more than the filing of a complaint containing highly conclusory allegations,” ibid., and may be satisfied using either documentary submissions or testimony, id. at 13. Although the required showing is limited, we believe it to be a “constitutional imperative.” Ibid.

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A natural mother may file an action to determine paternity at any time until five years after the child reaches the age of majority originally appeared on NJ Family Issues on November 9, 2011.