Articles Posted in Family Law

by
In this appeal, the issue this case presented for the Supreme Court's review was one of first impression: whether an indigent parent who faces termination of her parental rights in a contested private adoption proceeding has a right to appointed counsel. "Because of the nature of the right involved - the invaluable right to raise a child - and the risk of an erroneous outcome without the help of an attorney, we hold that indigent parents are entitled to appointed counsel in a contested private adoption matter under the due process guarantee of the State Constitution." View "In the Matter of the Adoption of a Child by J.E.V. & D.G.V." on Justia Law

by
Plaintiff Peter Innes and his wife, Maria Jose Carrascosa, were involved in a contentious divorce and custody battle over their daughter Victoria. Innes was a citizen of the United States; Carrascosa was a Spanish national and a permanent resident of New Jersey. Victoria was a dual citizen of the United States and Spain. During the course of their domestic relations litigation, the parties entered into an agreement whereby Carrascosa's attorneys would hold Victoria's United States and Spanish passports in trust to restrict travel outside of the United States with Victoria without written permission of the other party (the Agreement). Carrascosa discharged her first attorney and retained defendants Madeline Marzano-Lesnevich, Esq., and Lesnevich & Marzano Lesnevich, Attorneys at Law. Defendant Marzano-Lesnevich received Carrascosa's file, including the Agreement and Victoria's United States passport. In December 2004, Carrascosa obtained Victoria's United States passport from defendants, and used the passport to remove Victoria from the United States to Spain. Innes filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction for Victoria's return to the United States and traveled to Spain for a hearing on the petition. The Spanish court denied the petition and ordered Victoria to remain in Spain until age eighteen. Meanwhile, the parties' domestic relations litigation continued in New Jersey. The Family Part judge entered a judgment of divorce and granted Innes sole legal and residential custody of Victoria. The judgment gave Carrascosa ten days to bring Victoria back to the United States, but Carrascosa failed to comply with the order. Innes filed a complaint in the Law Division against defendants alleging, in part, that they improperly released Victoria's passport and intentionally interfered with the Agreement. Innes requested relief, including damages and attorneys' fees. The New Jersey Supreme Court granted defendants petition for certification, limited to the issue of whether the attorney-defendants could be liable for attorneys' fees as consequential damages to a non-client, and found that yes, defendant attorneys could be held liable for counsel fees if, as trustees and escrow agents for both Innes and Carrascosa, they intentionally breached their fiduciary obligation to Innes by releasing Victoria's United States passport to Carrascosa without Innes' permission. View "Innes v. Marzano-Lesnevich" on Justia Law

by
Plaintiffs-grandparents filed an action under N.J.S.A. 9:2-7.1 in the Family Part, seeking an order compelling defendant-mother to allow them periodic visits with their granddaughter. The trial court determined that in their complaint, supplemented by their testimony, plaintiffs failed to present a prima facie showing that the child would be harmed unless visitation were ordered. It found that plaintiffs had improperly instituted litigation before defendant had denied visitation with finality, and dismissed the complaint. The Appellate Division reversed the trial court's determination and remanded for reevaluation of the sufficiency of plaintiffs' complaint. In this appeal, the issue this case presented for the Supreme Court centered on the procedures by which a Family Part judge determines whether a grandparent has made a prima facie showing of harm to the child sufficient to withstand a motion to dismiss, and manages the case if it continues beyond the pleading stage. The Supreme Court held that in order to overcome the presumption of parental autonomy, grandparents who bring visitation actions must prove by a preponderance of the evidence that denial of his or her application would result in harm to the child. If the grandparent meets that burden, the presumption in favor of parental decision-making is overcome, and the court sets a visitation schedule in the best interests of the child. In this case, plaintiffs alleged in detail their involvement in their granddaughter's life prior to the death of their son (the child's father) and contended on that basis that their alienation from the child caused her harm. The trial court should have denied defendant's motion to dismiss and given plaintiffs the opportunity to satisfy their burden to prove harm. View "Major v. Maguire" on Justia Law

Posted in: Family Law

by
In May 2013, the Division of Child Protection and Permanency filed an Order to Show Cause for Care and Supervision of T.E. (Tommy), the six-year-old son of K.N.(mother) and K.E.(father). The Family Part investigated allegations of domestic violence and drug use in Tommy's home and awarded temporary custody of Tommy to the Division. The Division temporarily placed Tommy in the home of his maternal grandmother, where he had been residing for several months, and conducted an on-site evaluation of the home. A later evaluation revealed that Tommy's maternal step-grandfather had been the subject of a domestic-violence complaint, which was dismissed. The Division substantiated the domestic violence claim and determined that the maternal grandparents home could not be licensed under the Resource Family Parent Licensing Act. As a result, the Division removed Tommy from his maternal grandparents' home and placed him with his maternal great aunt who was eligible to be licensed as a resource family parent and receive financial assistance under the Act. At the permanency hearings that followed Tommy s placement with his maternal great aunt, the Law Guardian argued that Tommy should be returned to the home of his maternal grandparents because Tommy was developing attachment issues and experiencing personality changes. The Division maintained that Tommy could not be returned to the home because the maternal step-grandfather had been the subject of a domestic violence complaint that was substantiated by the Division. At the conclusion of the hearings, the Family Part judge ordered the Division to return Tommy to the home of his maternal grandparents and to provide them with the financial assistance available to a resource family parent licensed under the Act. The Division filed an emergent appeal to stay the Family Part s order. The Appellate Division held that the Family Part had the authority to place Tommy with his maternal grandparents, but remanded the matter for further consideration of all relevant statutory and regulatory factors to determine the suitability of the placement. The Supreme Court affirmed, substantially for the reasons expressed in the Appellate Division opinion, that the Family Part judge had the authority to determine that the child s best interests were served by his continued placement with a relative not licensed as a resource family parent under the Act, and that the Family Part judge did not have the authority to compel the Division to pay financial assistance under the Act to a relative not licensed as a resource family parent. However, because the Division returned Tommy to the care and custody of his mother, the Court dismissed as moot the Appellate Division's remand to the Family Part to consider factors relevant to a placement review, including the claim of prior domestic violence involving the maternal step-grandfather. View "New Jersey Division of Child Protection and Permanency v. K.N." on Justia Law

by
In this appeal, on a morning in early May 2009, a mother left her sleeping nineteen-month-old child unattended for approximately ten minutes in a locked motor vehicle with the motor running in a shopping mall parking lot. The Division of Child Protection and Permanency (Division) substantiated neglect, and the mother filed for an administrative review of that determination. The Division filed a complaint in the Superior Court seeking care and supervision of the unattended child and her siblings. That complaint was resolved by a consent order, and the mother renewed her administrative appeal of the substantiation determination. Years later, the Division determined that no genuine issue of material fact existed and summarily disposed of the matter. The Appellate Division affirmed the final agency decision substantiating neglect. The appellate panel concluded that a hearing in the Office of Administrative Law (OAL) was unnecessary because the mother s actions plainly constituted gross neglect. The mother argued on appeal to the Supreme Court that in a case in which no actual harm befell the child, the Division must evaluate whether her conduct caused an imminent risk of harm to her child at the time of fact-finding, rather than at the time of the event. To do otherwise, she contended, was contrary to the plain meaning and legislative intent of the statute. Furthermore, the mother argues that requiring her name to be listed on the Central Registry for a single lapse in judgment was unreasonable. In addition, the mother argued that the Division erred and the Appellate Division compounded the error by applying a categorical approach to evaluate her actions. The Supreme Court rejected the mother's interpretation of the definition of abuse and neglect found in N.J.S.A. 9:6-8.21(c)(4)(b), that the statute requires a finding that the parent's conduct presented an imminent risk of harm to the child at the time of fact-finding rather than at the time of the event that triggered the Division's intervention. Such an interpretation is not supported by the text of the statute, the legislative history, the Court's long-standing interpretation and application of the statute, or common sense. The Court also held that the Division should have referred the mother's appeal to the OAL for a hearing. "Leaving a child unattended in a car or a house is negligent conduct. However, this Court has emphasized that whether a parent's conduct is negligent or grossly negligent requires an evaluation of the totality of the circumstances. Such an evaluation can only occur through a hearing. The Division not only denied the mother a timely determination of her appeal but also denied her an individualized review of the unique circumstances attendant to the incident involving her child. We therefore reverse and remand this matter for a hearing before the OAL." View "Dept. of Children Families v. E.D.-O." on Justia Law

Posted in: Family Law

by
At a routine doctor appointment for a hand injury, Y.N. ("Yvonne") learned that she was four months pregnant. During that four-month period, Yvonne had been taking Percocet for injuries caused in a car accident and became dependent on that medication. Hospital personnel advised her that she could not stop taking Percocet abruptly without endangering her pregnancy and recommended that she enter a methadone maintenance treatment program. Yvonne entered such a program four months later, a month before she gave birth. Her baby, P.A.C. ("Paul"), suffered methadone withdrawal symptoms at birth and remained hospitalized for about seven weeks. The Division of Youth and Family Services filed an abuse and neglect complaint against Yvonne based on her long-term drug use before and during her pregnancy, the harm caused to Paul from methadone withdrawal, and her failure to address acts of domestic violence committed against her. After a hearing, the family court entered a finding of abuse and neglect. The Appellate Division affirmed on the basis that Yvonne caused her child to suffer withdrawal symptoms from the methadone she took as part of a prescribed, bona fide medical treatment plan. The panel held her strictly liable for the harm suffered by Paul and gave no consideration to whether Yvonne acted unreasonably or failed to provide a minimum level of care for her newborn. The Supreme Court disagreed with the Appellate Division's reasoning and reversed: absent exceptional circumstances, a finding of abuse or neglect cannot be sustained based solely on a newborn's enduring methadone withdrawal following a mother's timely participation in a bona fide treatment program prescribed by a licensed healthcare professional to whom she has made full disclosure. The Appellate Division did not consider all of the requisite statutory elements in its analysis. The case was remanded for a determination of whether the finding of abuse or neglect could be sustained on any other ground articulated by the family court. View "New Jersey Div. of Child Protection & Perm. v. Y.N." on Justia Law

by
In this case, Beverly Maeker and William Ross, although unmarried to each other, lived together and shared a marital-like relationship from 1999 to 2011. In the course of that relationship, Maeker alleged she gave up a career and devoted herself to Ross, who promised to support her in the future. In short, Maeker claimed that the two entered into a palimony agreement. In 2011, their relationship dissolved, and Maeker filed an action to enforce Ross's promise to provide financial support. Ross argued that the alleged agreement was not reduced to writing and could not be enforced under the 2010 Amendment to the Statute of Frauds. The trial court rejected Ross's argument, concluding that the Legislature intended the 2010 Amendment to be prospectively applied. The Appellate Division reversed and dismissed Maeker's complaint, holding that the Legislature intended that any palimony agreement as of 2010 had to be in writing and that oral agreements predating the Amendment were no longer enforceable. Upon review of the matter, the Supreme Court disagreed with the Appellate Division, finding that the Legislature did not intend the 2010 Amendment to apply retroactively to oral agreements that predated the Amendment. "In amending the Statute of Frauds, the Legislature was aware that historically the Statute has been construed -- absent a legislative expression to the contrary -- not to reach back to rescind preexisting, lawfully enforceable oral agreements. The Legislature has given no indication that it intended to depart from the traditional prospective application of a change to the Statute." Accordingly, the Appellate Division was reversed and Maeker’s complaint reinstated. View "Maeker v. Ross" on Justia Law

by
A father, J.G., was incarcerated six months after the birth of his daughter. He was released five years and four months later, while a guardianship trial was in progress. The birth mother surrendered her rights in favor of her own mother. J.G. appealed the termination of his parental rights to the daughter. The trial court found that the Division of Youth and Family Services failed to prove its case for termination of the father’s rights by clear and convincing evidence. The majority of the Appellate Division panel reversed and entered judgment in favor of the Division. Judge Jonathan Harris dissented, agreeing with the trial court's conclusions drawn from factual findings. Upon careful consideration of the facts presented at trial, the Supreme Court reversed the decision of the Appellate Division majority, reinstated the judgment of the trial court, and remanded the case to the Family Part for further proceedings. View "New Jersey Div. of Youth & Family Svcs. v. J.G." on Justia Law

Posted in: Family Law

by
In an issue of first impression for the Supreme Court, the issue on appeal involved the precise standard that must be met to compel genetic testing to prove parentage when there is a presumed father. In April 2006, Richard and Diane's marriage apparently was going through a rough period. The two eventually filed for divorce. Richard discovered on Diane’s phone "some inappropriate text messages" from her then "current boyfriend." Richard confronted Diane believing that the messages were about "Mark," the son Richard presumed was his. The next day, Diane began "crying out loud" and stated, "I am sorry for what I did to you 20 years ago." By November 2006, when Diane moved out of the marital home, Richard began to notice that Mark did not look like him. At some later point, Diane admitted to Richard that she had sexual relations with "Donald" in the latter part of the summer of 1986. Mark was born in 1987. With his suspicions raised about Mark's paternity, Richard purchased a home DNA testing kit. At the time, Mark was battling alcohol and drug abuse problems. Richard made it clear to Mark that he had to remain clean while living under his roof, and under that guise had Mark provide a DNA sample, which he then submitted to a laboratory for paternity testing. In January 2007, Richard received the results, which revealed that Mark was not his biological son. Coinciding with Richard's May 2007 motion to compel genetic testing as part of his parentage action against Donald, Richard and Mark's relationship began to deteriorate. By April 2009, Richard and Mark had no relationship at all. At the same time, Mark had a good relationship with Donald – his "uncle" and putative biological father. The divorce and paternity actions also strained Richard's relationship with his daughter with Diane. All in all, a once intact family unit was totally fractured. With this family history as a backdrop, Richard, Diane, and Mark each gave testimony at a hearing to determine whether genetic testing should be ordered. The family court rejected Richard's request for the testing. The trial court found Richard failed to prove by clear and convincing evidence that the testing was in the best interests of Mark, and disagreed that Richard had a right to know Mark's paternity. The appellate court affirmed the trial court's dismissal of Donald's motion for summary judgment and dismissed Richard's third-party paternity action. Richard then appealed. Upon review, the Supreme Court found that the trial court nor the Appellate Division referenced the applicable statutory provision that addressed the circumstances that warrant an order of genetic testing when parentage is in doubt. "Event under the most generous view of the facts from Mark or Diane's perspective, there is an absence of good cause to deny genetic testing." View "D.W.v. R.W." on Justia Law

by
This case required the Court to address the standard to be applied by Family Part judges when they determine whether the prosecution has demonstrated probable cause under N.J.S.A. 2A:4A-26(a)(2). It arose from a 2009 shooting in which one victim was killed and one seriously injured, allegedly by a group of men led by Angel Ramos, the father of one of the two juveniles in this case -- A.D. #1. Ramos was alleged to be a leader in a street gang. The incident closely followed a fight in which A.D. #1 and A.D. #2 were beaten by an uncle of A.D. #2 and others. According to the prosecution, the two juveniles, motivated by a desire for revenge following the fight, contacted A.D. #1's father and participated in a conspiracy to murder A.D. #2's uncle and others, precipitating an assault in which the targeted uncle was unhurt, but another uncle of A.D. #2 was killed and A.D. #2's mother was severely wounded. The two juveniles, both approaching their eighteenth birthdays, were charged with murder, aggravated assault, conspiracy and attempted murder, among other offenses. The trial court denied the prosecution's application to waive the juveniles into adult criminal court, concluding that the State had not demonstrated probable cause under N.J.S.A. 2A:4A-26(a)(2). It found "no evidence" that the two juveniles had understood that their response to the fight would lead to murder. The State appealed, and an Appellate Division panel reversed the determination of the trial court, holding that the trial court had committed several legal errors in its application of the probable cause standard to the setting of this case. Upon review, the Supreme Court affirmed the Appellate Division's decision: "the probable cause standard that governs waiver of juvenile complaints into adult criminal court under N.J.S.A. 2A:4A-26 is similar to the standard that guides a grand jury's determination whether or not to indict. If the trial court finds that the State has presented evidence which, combined with reasonable inferences to be drawn from that evidence, leads to a well-grounded suspicion or belief that the juvenile has committed one or more crimes enumerated in the statute, the "probable cause" standard of N.J.S.A. 2A:4A-26 is satisfied. " View "In the Interest of A.D." on Justia Law