New Jersey Family Law Blog

No Binding Arbitration of Custody or Parenting-Time Issues, Court Says

2008-07-21T13:42:39Z

A three-judge Appellate Division panel recently ruled out binding, nonappealable arbitration as a way to settle custody and parenting time disputes. Arbitration is a favored remedy for settling disputes, but parties can’t bargain away the court’s obligation under the principle of parens patriae to ensure the best interests of children, the appeals court said.

Christine and Samih Fawzy, broke off their 14-year marriage in 2005. When their case came up for trial in Middlesex County in 2007, they decided to submit to binding arbitration on all issues, including custody and parenting time. Judge Fred Keiser Jr. warned the decision would be final and could not be appealed but for changed economic circumstances.

After four sessions, the father began to sense the arbitration was going against him, so he sought to back out and have a plenary hearing. Judge Glenn Berman, who had inherited the case, denied the request, the arbitrator made an award and the judge entered a judgment of divorce.

The appellate court in reversing the parenting provisions of the arbitration award, cited Flaherty v. Flaherty, 97 N.J. 99 (1984). Custody and visitation issues weren’t before that court, but the justices said in dicta, “as we gain experience in the arbitration of child support and custody disputes, it may become evident that a child’s best interests are as well protected by an arbitrator as a judge.” The court went on to say, [i]f so, there would be no necessity for our de novo review…[h]owever because of the Court’s parens patriae tradition, at this time we prefer to err in favor of the child’s best interest.”

Brian Paul, who sought to enforce the arbitration on the wife’s behalf, says he will seek Supreme Court review, asking the justices to balance the public policy goals of limiting litigation and protecting children.

New Jersey Supreme Court says cohabitation no longer a requirement for Palimony.

2008-07-07T14:49:19Z

The New Jersey Supreme Court ruled last month that “[c]ohabitation is not an essential requirement for a cause of action for palimony, but a marital-type relationship is required.” In Devaney V. L’Esperance, Not Reported A.2d., 2008 WL 2491976 (NJ). The Court by a 6-1 majority broke away from the precedent set by almost every state court by saying a Plaintiff need only prove that there was a “marital-type relationship.” The Court found that no such relationship existed in this case.

The Parties began dating in 1983 and L’Esperance paid for Delvaney’s college education and purchased an apartment for her in North Bergen. The two also tried unsuccessfully to have a child together. She claimed he promised to leave his wife and marry her but never did. They broke up in 2003 and he kicked her out of the apartment.

Justice John Wallace writing for the majority found that the Superior Court had correctly ruled that the Parties never held themselves out as a married couple. The Court also found that there was no proof establishing the claim that L’Esperance promised to support Delvaney.

Wallace further explained that the Court should not limit itself by requiring cohabitation and saying, “[r]ather, we opt for a more flexible approach that seeks to achieve substantial justice in light of the realities of the relationship. It is the promise to support, expressed, or implied, coupled with a marital-type relationship, that are indispensable elements to support a valid claim for palimony.”

A large majority of successful palimony claims involve cohabitation, however if a couple holds themselves out as husband and wife the fact that they do not reside together may be immaterial. Justice Roberto Rivera-Soto concurred with the opinion but expressed some concern expressing the opinion that cohabitation should at the very least be a bare minimum” requirement. He cited a California case wherein the Palimony cause of action was created. He goes on to say that “California makes the critical observation that if cohabitation were not a prerequisite to recovery, every dating relationship would have the potential for giving rise to such claims, a result no one favors.” Citing Bergen v. Wood, 14 Cal. App. 4th 854 (Cal. Ct. App. 1993).

New Jersey is now the first state that does not require cohabitation as a requirement for Palimony. This decision is a step forward to ensuring fairness in long term marital-type relationships. Most of the cases where Palimony is an issue one of the spouses is either married or has the relationship as something on the side. In cases such as these cohabitation is impossible.

New Jersey: Cutting Off the Elective Share

2007-08-27T21:32:31Z

What if you do not have a will, you only have a few weeks left to live, and you do not want your spouse to inherit your estate?

In New Jersey, a surviving spouse has a right of election to take an elective share of one-third of the augmented estate under certain limitations and conditions spouse.

]]> You should live separately from your spouse and you may want to consider filing a Complaint for Divorce despite the fact that you may not live past Settlement or Trial.

Filing the complaint for divorce and acquiring New Jersey jurisdiction cuts off a spouse's right to an elective share.

However, filing the divorce does not cut off the spouse's right to equitable distribution resulting from the divorce. Equitable distribution is the distribution of assets in a fair and just manner.

In New Jersey, if a married person dies on or after May 28, 1980, the surviving spouse has a right of election to take an elective share of one-third of the augmented estate under certain limitations and conditions. However, a surviving spouse is not entitled to an elective-share when, at the time of death, the parties are separated or when the decedent and surviving spouse have lived apart for circumstances that would give rise to a cause of action for divorce.

Where there is no will, a Judge will look at the deceased's actions to determine intent. Certainly, the filing of a Complaint for Divorce illustrates a spouse's intent.

New Jersey Parentage

2007-08-17T22:21:18Z

Paternity testing can cost up to $500, not including attorneys fees, should you desire representation.

If the father of your child contests paternity, you should file a Paternity Complaint wherein a hearing will take place and a paternity test will be scheduled. N.J.S.A. 9:17-38 is known as the New Jersey Parentage Act.

There are certain instances where paternity is presumed.

]]> Parentage is presumed where the man and the child's mother were married when the child was born or the child is born within 300 days after the marriage is terminated by death or divorce.

Other instances include attempted marriage, acknowledgement of paternity, holding the child out as your own, providing support for the child, and where the mother does not dispute acknowledgement of paternity.

If none of the circumstances apply, and you and the potential father maintain a friendly relationship, see if the potential father will get tested without a court order. If this is done, and it is proved that he in fact is the father, try to work out a written child support agreement.

Of course, at this stage, it is always best to hire an attorney. An attorney will advise you on what you should look for in terms of a weekly support amount, health insurance, life insurance, and even college expenses.

In New Jersey a Child Support Agreement that Deviates from the Guidelines is Superseded by the State when the Payee is a Recipient of TANF

2007-08-02T20:46:42Z

Let's say you and your ex have an agreement, whether verbal or written, that you will pay to your ex $300 in child support, when according to the Guidelines, you should be paying $800. Well, this is obviously agreeable to the payor.

Your obligation will certainly change if your ex becomes a recipient of TANF, i.e. welfare. TANF stands for Temporary Assistance to Needy Families.

]]> N.J.S.A. 44:10-49 provides that the signing of an application for benefits under the Work First New Jersey program shall constitute an assignment of any child support rights pursuant to Title IV-D on behalf of individual assistance unit members to the county agency.

The assignment shall terminate with respect to current support rights when a determination is made by the county agency that the person in the assistance unit is no longer eligible for benefits.

The determination of the amount of repayment to the county agency and distribution of any unpaid support obligations that have accrued during the period of receipt of benefits shall be determined by regulation of the commissioner in accordance with federal law.

Since the payee (often the mother of the child) has assigned her right to receive child support to the State, the State has the ability to receive reimbursement directly from the payor (usually the father) in an amount pursuant to the Child Support Guidelines. Your agreement with your ex to pay child support at $300 is now meaningless, at least until your ex no longer receives welfare.

New Jersey: Termination of Parental Rights

2007-07-10T23:25:52Z

In a recent New Jersey case, a mother's parental rights were reinstated after the New Jersey State Supreme Court found that DYFS failed to prove the mother was unwilling and unable to eliminate threats of harm (in this case, the presence of the child's father).

The Division of Youth and Family Services, more commonly known as DYFS, files for termination of parental rights. By clear and convincing evidence, DYFS must show the following: (1) the child's safety, health, or development is endangered by the parental relationship; (2) the parent is unwilling or unable to eliminate the harm facing the child; (3) DYFS made reasonable efforts to provide services to help the parent; and (4) termination will not do more harm than good.

]]> In the situation mentioned above, the mother's parental rights were terminated by the trial court primarily because the mother did not agree that the father was a danger to the child. The Appellate Division affirmed.

The child's father was incarcerated for endangering the welfare of a child, which resulted in the death of the parents' first child. The mother did not blame the father for the first child's death, but instead, took the position that the father waited too long before calling for an ambulance. (The autopsy revealed the child died from Shaken Baby Syndrome).

The Supreme Court opined that regardless of the mother's failure to blame the father for the death of their first child, so long as the mother does not live with the father or allow the father unsupervised visits with their second child, then the mother is not unwilling or unable to prevent a threat of harm to the child.

This raises interesting questions regarding whether one spouse's termination of parental rights makes the other spouse vulnerable to termination as well. To what extent does the relationship between two parents, one without parental rights, jeopardize the other's parental rights?

See New Jersey Division of Youth and Family Services v. G. L.

Custody – David Hasselhoff

2007-06-21T21:42:06Z

On June 15, 2007, former Baywatch star and singer, David Hasselhoff won full and physical custody of his two teenage daughters, 14 year-old Hayley and 17 year-old Taylor-Ann.

His ex-wife, Pamela Bach, has been granted alternate weekends and on Wednesday nights for dinner.

]]> Mr. Hasselhoff also made it clear to his daughters that they can visit with their mother whenever they want to.

Mr. Hasselhoff stated on Ryan Seacrest’s radio show “It was a bittersweet victory more than anything because my kids just want to move on. They love their mom, they love their dad, they just wanna get it over with…”

Pamela Bach fired her attorney, Debra Opri on June 18, 2007.

The couple’s bitter and lengthy court battle began in January 2006, when they both independently filed for divorce after 16 years of marriage. They divorced last August.

Ms. Bach accused Mr. Hasselhoff of alleged domestic violence, and he accused her of allegedly having a drug problem, and needing psychiatric help.

See: http://www.hollywood.com/news/Hasselhoff_Custody_Victory_Is_Bittersweet/4284488; http://www.buddytv.com/articles/americas-got-talent/david-hasselhoff-wins-custody-7418.aspx; http://www.hollywood.com/news/Hasselhoffs_Custody_Rights_Restored/3701296; http://www.azcentral.com/offbeat/articles/0618hasselhoff-CR.html; http://www.people.com/people/article/0,,1180118,00.html?cid=redirect-articles/; http://www.tmz.com/2007/06/19/hoff-to-ryan-she-ran-her-mouth-but-i-got-custody/

New Jersey Court Orders Retroactive Increase in Child Support Where Motion was Never Filed

2007-06-17T19:23:07Z

Hamilton v. Mamroud, N.J.Super.A.D. 2007(unpublished opinion).

The parties had one son together. They divorced agreeing to joint custody with mother having primary residence.

Eleven years after the divorce, in November of 2001, the Middlesex County Board of Social Services notified both parties that either could seek a review of child support. The mother notified the board that she was interested in the review.

Thereafter, the father was notified by the Board that it was gathering his financial information from his employer. The board filed a motion to increase support on November 7, 2003, and then again on November 25, 2003 asking the court to make the increase retroactive to November 25, 2001(the date of the original notice).

]]> Referring to N.J.S.A. 2A:17-56, the Court held that the November 2001 notice received by the father was equivalent to a formal notice of motion.

N.J.S.A. 2A:17-56:

No payment or installment of an order for child support...shall be retroactively modified by the court except with respect to the period during which there is a pending application for modification, but only from the date the notice of motion was mailed either directly or through the appropriate agent.

The Appellate Division upheld the Trial Court's decision based on its interpretation of the statute and based upon the father's financial change in circumstances.

Divorce - Danny Bonaduce & Gretchen Bonaduce

2007-06-15T22:20:33Z

On April 10, 2007, Gretchen Bonaduce filed for divorce from former “Partridge Family” child star, and now radio and TV host, Dante Daniel (“Danny”) Bonaduce after 17 years of marriage, citing irreconcilable differences.

According to the divorce papers, Gretchen is seeking legal and physical custody of their 6-year old son, Count Dante Jean-Michael V. and 12-year old daughter, Countess Isabella Michaela of the marriage, with visitation to Danny.

]]> Danny and Gretchen met on a blind date, married on December 6, 1990, and separated April 9th as per the divorce petition. The couple had been talking about breaking up for several months. Mr. Bonaduce held out little hope for a reconciliation between them.

This is Mr. Bonaduce’s second marriage. His first marriage was to a Japanese woman, Setsuko Hattori in 1985, to allegedly help her obtain a green card, and separated a few months later.

Mr. Bonaduce announced his divorce on the radio. He stated on “The Adam Carolla Show” that “I really don’t want a divorce”, “I love her”. He fears he will never recover from the split from Gretchen. He is devastated.

On “Extra” he stated “I will love her for the rest of my life and I want her to stay with me forever and ever.”

In 2005, Danny and Gretchen appeared in a VH-1 reality show entitled “Breaking Bonaduce” whose main theme was the couples efforts to repair their relationship by way of Danny’s attempts to recover from alcohol, drugs, attempted suicide, extramarital infidelity, verbal abuse and other problems.

After undergoing rehab, Bonaduce stated that “we always hoped that once I actually got sober, we could get past it and I guess unfortunately we couldn’t.”

In a statement to TMZ, Gretchen said “even though they still care about each other and their two children, she felt it wasn’t a great atmosphere to raise the kids.”

See: http://www.tmz.com/2007/04/10/bonaduce-i-dont-want-a-divorce-this-sucks-a/; http://movies.msn.com/celebs/celeb.aspx?c+216951&mp=b; http://www.biography.com/search/article.do?id=200358; http://www.hollywood.com/news/Bonaduce_to_Divorce/3678862; http://community.live.journal.com/ohnotheydidnt/11830808.html; http://www.abcnews.go.com/Entertainment/wireStory?id=3031030; http://www.celebrityspider.com/news/april07/article042007-10.html; http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2007/04/11/entertainment/e113003D15.DTL; http://www.usatoday.com/life/television/2007-04-11-1561750813_x.htm; http://bob.wjla.com/headlines/0407/413475.html

New Jersey Appellate Division Reverses Summary Judgment in Same Sex Equitable Distribution Case

2007-06-05T18:07:35Z

Gruber v. Rixford, N.J.Super.A.D., 2007 (unpublished opinion).

A same sex couple purchased a townhouse together, in which title was held solely in defendant's name as was the mortgage on the property. The plaintiff expended approximately $55,000 toward the purchase of the townhouse.

After the parties broke up, the plaintiff alleged that the townhouse was a joint asset, subject to equitable distribution, giving him a 50% interest. In support of plaintiff's position, he alleged the parties had a verbal agreement that his name would be placed on the deed.

The defendant offered to pay plaintiff $93,000 as his share of the home and testified that plaintiff accepted this pay-off. Plaintiff acknowledged that the conversation took place but denied that he accepted the offer.

The trial court granted defendant's motion for summary judgment.

]]> On May 16, 2007, the Appellate Division reversed summary judgment for the following reasons: (1) There exists an element of ambiguity as to whether defendant was to repay plaintiff's financial contribution or there existed a joint enterprise; and (2) There exists ambiguity over whether plaintiff's money was intended as a loan or an investment.

In other words, there existed a genuine dispute over the nature of plaintiff's financial contribution, and the nature of the verbal agreement.

This case raises interesting legal and social issues concerning cohabitation. In the above case, the contract cannot be defined. However, under the auspices of marriage or civil union, the contract is readily definable.

Battle Over Nearly $630,000.00 in Counsel Fees

2007-05-31T17:44:55Z

Larry Birkhead, the biological father of Dannielynn, is not entirely done fighting. Debra Opri, Esq., Mr. Birkhead's former attorney alleges she was not paid $620,492.84 in fees resulting from her representation of Mr. Birkhead during his custody dispute.

On May 29, 2007, Ms. Opri allegedly filed court documents with the Los Angeles Superior Court for all of her travel expenses, expensive lavish dinners, and even for expenses associated with her husband, whom traveled with her, in addition to her “usual hourly rate” of $475.00 per hour, court filing fees, subpoena costs, deposition costs, accounting and appraisal fees, etc. Ms. Opri stated “legal services entailed hundreds of hours of work”.

]]> Subsequently, a statement released by Ms. Opri’s publicist, James Levesque revealed media reports that Ms. Opri is suing Larry Birkhead are “incorrect”. He further stated “Pursuant to a legal retainer and media agreement signed by Mr. Birkhead in September 2006, Mr. Birkhead was required to participate in a private arbitration. He failed to do so”.

Mr. Levesque further stated “The arbitrator instructed Ms. Opri to secure a court order via a petition for arbitration because Mr. Birkhead was continuing to ignore all requests to resolve this matter. Mr. Birkhead’s statements are not correct that he notified anyone of his unavailability. He simply refused to participate at any level.”

Mr. Birkhead alleged he advised Ms. Opri and her attorney he would be out of the state of California taking care of his daughter until the conclusion of an upcoming June custody hearing in the Bahamas.

In his own statement, Mr. Birkhead brushed off the lawsuit saying “The only question at the end of the day is, how much money will Debra Opri be paying me?” “At this time, the public is not aware of the unbelievable circumstances which led me to firing Ms. Opri,” he continued, “Thanks to the efforts of my Bahamas attorney, Emerick Knowles, I am fortunate enough now to be spending time with my daughter, Dannielynn”.

Additionally, there is a contract termination dispute between the parties. Mr. Birkhead alleges he terminated her services in March, and Ms. Opri stated technically she remained in his employ up until last month (April, 2007) because he failed to sign a withdrawal release. On April 23, 2007, a Los Angeles Judge signed off on her release.

Interestingly, news reports state Ms. Opri issued a statement the morning of March 15, 2007, advising “Larry Birkhead and I have terminated our attorney-client relationship effective immediately”.

On June 1, 2007, TMZ reported that Ms. Opri is holding a huge amount of Mr. Birkheads money hostage.

It was reported back in March, 2007, Mr. Birkhead was approached by NBC Universal to appear on some TV shows for major money. Behind the scenes, Ms. Opri and her agent, Babette Perry (who works with the IMG Agency) were negotiating the deal on Mr. Birkhead’s behalf. NBC Universal agreed to pay Larry $1,050,000.00. Mr. Birkhead subsequently appeared on a Bravo special. He also repeatedly appeared exclusively on “Access Hollywood” and “Today”.

However, it is alleged that after the first installment check of $850,000.00 went out, it ended up in Debra Opri’s client trust fund account. It was reported Ms. Opri refused to give Mr. Birkhead his money and that is precisely the reason Mr. Birkhead fired her.

In short, it was alleged Ms. Opri’s agent, Ms. Perry requested NBC send the check directly to Opri, who then promptly put it in her trust fund account. Ms. Perry alleged Ms. Opri specifically told her that Mr. Birkhead wanted the money in that account. However, it was reported by TMZ that Mr. Birkhead is outraged, claiming he never authorized this transaction. NBC sources say they were just following Ms. Perry’s instructions.

It was also learned by TMZ that Mr. Birkhead has consulted lawyers about suing Ms. Opri and others for allegedly pilfering his money.

It was reported Ms. Opri offered Mr. Birkhead a reduced bill of $511,365.09, but only if he accepted immediately, he declined.

See: http://www.tmz.com/2007/04/01/debra-opri-bills-birkhead-kings-ransom/;
http://www.usatoday.com/life/people/2007-05-30-birkhead-lawsuit_N.htm?csp=34; http://new.yahoo.com/s/eonline/20070530/en_celeb_eo/693d0534_b93743la_bebl_88f967133270; http://www.eonline.com/news/article/index.jsp?uuid=693d0534-b937-43la-bebl-88f967133270&entry=in...; http://www.sfgate.com/cgi-bin/blogs/sfgate/category?blogid-7&cat=1202; http://www.hollywood.com/news/Birkhead_Refuses_to_Pay_650000_Legal_Bill/3710358; http://www.tmz.com/2007/05/29/opri-to-birkhead-pay-up/; http://www.tmz.com/2007/06/01/opri-bags-birkheads/; http://www.news.yahoo.com/s/eonline/20070530/en_celeb_eo/693d0534_b93743la_bebl_88f967133270; http://www.eonline.com/news/article/index.jsp?uuid=693d0534-b937-431a-beb1-88f967133270&entry-in...; http://www.sfgate.com/cgi-bin/blogs/sfgate/category?blogid=7&cat=1202; http://www.hollywood.com/news/Birkhead_Refuses_to_Pay_650000_Legal_Bill/3710358; http://www.sfgate.com/cgi-bin/blogs/sfgate/detail?blogid=7&entry_id=14499; http://www.andpop.com/article/8829; http://www.femalefirst.com.uk/celebrity/Birkhead+And+Attorney+Part+Company.-14523.html; and http://www.starpulse.com/news/index.php/2007/03/17/birkhead_and_attorney_part_company

Divorce – Joey Buttafuoco’s Second Wife Files For Divorce

2007-05-25T13:51:18Z

On May 4, 2007, Evanka Buttafuoco filed a divorce petition against Joey Buttafuoco citing “irreconcilable differences”. Evanka listed the couple’s assets to be “consumer debt only”.

When asked about his divorce, Mr. Buttafuoco told The Post “All I can say is two words: I’m devastated. That’s all I can say. I’m very sad.”

Joey and Evanka were married on March 5, 2007. No children are shared by the couple.

]]> Looking back to 1992, Mr. Buttafuoco was running an auto body shop in Long Island, New York, when his then 17-year old lover/admirer Amy Fisher, shot Mr. Buttafuoco’s first wife, Mary Jo Buttafuoco, in the face as she answered the door at their Massapequa residence.

Ms. Fisher, thereafter nicknamed the “Long Island Lolita” served seven years in prison for the attempted murder of Mary Jo Buttafuoco. Mr. Buttafuoco thereafter nicknamed the “Manic Mechanic” pleaded guilty to one count of rape and served four months in jail.

The Buttafuoco’s remained together throughout Mary Jo’s recovery, however, divorced after they moved to California. Mr. Buttafuoco co-owned the San Fernando Valley Auto Body Shop.

Mr. Buttafuoco has most recently been charged with illegally possessing ammunition, wherein he served three-months of a one-year sentence; and prior was on probation for a felony insurance fraud conviction through the auto body shop.

In an interview with Entertainment Tonight/The Insider, Mr. Buttafuoco allegedly reached out to Amy Fisher “several times” from behind bars during his three-month sentence. Mr. Buttafuoco alleged he only wanted to apologize for a TV tirade.

On May 4, 2007, it was also reported Amy Fisher had ironically separated from her husband of five years, Lou Bellera. It was reported that the communication between Buttafuoco and Fisher was at the heart of the trouble.

On May 23, 2007, it was reported that Mr. Buttafuoco and Amy Fisher are moving in together. Mr. Buttafuoco is flying from California to Ms. Fisher’s Long Island Home sources told the New York Post.

There are rumors that a reality show will be upcoming.

See: http://cbs5.com/watercooler/local_story_129183829.html; http://www.nypost.com/seven/05042007/news/regionalnews/amy_joey_may_take_a_new_shot_regional...; http://www.topix.net/forum/news/joey-buttafuoco/TGFHPEEVNVV6DCTEA; http://www.iht.com/articles/ap/2007/05/09/arts/NA-A-E-CEL-US-Buttafuoco-Divorce.php; http://sfgate.com/cgi-bin/article.cgi?f=/n/a/2007/05/09/state/n153259D06.DTL; http://www.tmz.com/category/break-ups/; http://entertainment.bodogbeat.com/amy-fisher-and-joey-buttafuoco-to-reunite-69674.html; http://www.nypost.com/seven/05062007/news/nationalnews/divorce_crushes_me_joey_nationalnews_d...; http://www.foxnews.com/story/0,2933,274960,00.html; http://www.tmz.com/search/?q=Buttafuoco&btnSearch.x=40&btnSearch.y=12

Custody Battle – Bobby Brown Sues Whitney Houston

2007-05-18T13:45:37Z

On April 26, 2007, Bobby Brown filed a lawsuit against ex-wife Whitney Houston in an attempt to change the custody terms as to their 14 year-old daughter, Bobbi Kristina. In addition to the shared custody, he is seeking child support and spousal support. A court date has been set for June 15, 2007.

]]> Mr. Brown alleged he was “too screwed up after the breakup to properly handle a custody battle.” He stated “after Whitney and I separated, I had nowhere to go and very little money to live on. I was, for all intents and purposes, homeless”. He stated both these financial and emotional problems prevented him from filing a timely response to Ms. Houston’s divorce petition. He alleges Ms. Houston has not provided the Court with a copy of their prenuptial agreement, and ironically, he does not have a copy of said agreement.

After 14 years of marriage, Ms. Houston filed for divorce in October, 2006, and had been legally separated from Mr. Brown since September 8, 2006. The court awarded Ms. Houston custody of their daughter.

Ms. Houston stated Mr. Brown is “unreliable”. Mr. Brown stated “I believe I have a wonderful relationship with my daughter Bobbi Kris – a relationship that I would like to see strengthen and grow”.

Mr. Brown has two teenage children with a Massachusetts woman, Kim Ward. He recently spent four (4) days in jail, and was forced to pay $11,000.00 in delinquent child-support payments to Ms. Ward by a Massachusetts Judge.

See: http://www.tmz.com/2007/05/12/bobby-brown-sues-whitney/; http://tailrank.com/1925203/Bobby-Brown-Sues-Whitney; http://www.nationalledger.com/artman/publish/printer_13295.shtml; http://www.msnbc.msn.com/id/18619472/; http://www.people.com/people/article/0,,20010764,00.html; http://www.people.com/people/article/0,,1547399,00.html

New Jersey: Final Restraining Order Reversed on Grounds that Complaint was Insufficient

2007-05-04T20:24:13Z

Loveland v. Hauke, N.J.Super.A.D., 2007 (unpublished opinion).

This is a domestic violence case where the plaintiff alleged defendant acted with a purpose or intent to harass.

The plaintiff, in attempting to explain her fear, attempted to testify to incidents that were not outlined in her complaint. In fact, the plaintiff informed a police officer that there were no prior instances of domestic violence. Therefore, the plaintiff was not allowed to testify to any incidents before the incident at issue.

The Trial Court issued a Final Restraining Order. Defendant appealed.

]]> On appeal, the Appellate Court stated that "a trial court's findings are binding on appeal when supported by adequate, substantial, credible evidence", citing Cesare v. Cesare, 154 N.J. 394.

The Court further cited N.J.S.A. 2C:25-29(a)(1):

In determining whether a defendant's conduct is likely to cause the required annoyance or alarm to the victim, that defendant's past conduct toward the victim and the relationship's history must be taken into account. The incidents under scrutiny must be examined in light of the totality of the circumstances.

The Appellate Court remanded the matter for a new trial. This decision was based upon the fact that the plaintiff evidently did not know she could amend her complaint to include prior instances of violence. This would allow her to refer to prior instances giving them evidential weight. Further the Court held that the trial court failed to determine whether defendant acted with a purpose to alarm or seriously annoy the plaintiff.

Some interesting New Jersey law relating to this case:

The Court in J.F. V. B.K. held:

It constitutes a fundamental violation of due process to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint.

J.F. v. B.K. 308 N.J.Super. 387.

The Pazienza Court held that a violation of due process rights can be avoided by "granting a party a reasonable adjournment if confronted by new allegations at the time of trial in order to afford the party an ample opportunity to meet the charges."
Pazienza v. Camarata, 381 N.J.Super. 173.

Accordingly, the plaintiff in this case should have filed an amended complaint naming every prior instance of domestic violence so that she could refer to them on the record without objection.

New Jersey Kinship Legal Guardianship

2007-04-27T19:54:58Z

N.J.S.A. 3B:12A-6 Appointment of caregiver as kinship legal guardian New Jersey Courts can appoint a child's caregiver the legal guardian of that child. http://www.lsnj.org/keyRecentDevelopments/KinshipLegalGuardianship2.htm http://www.kidlaw.org/admin.asp?uri=2081&action=15&di=969&ext=pdf&view=yes ]]> N.J.S.A. 3B:12A-6(a) Appointment of caregiver as kinship legal guardian The Court makes the following considerations when determining whether to appoint the caregiver as kinship legal guardian:

(1) was proper notice provided to the child's parents; (2) is the appointment in the best interests of the child; (3) the kinship caregiver assessment; (4) in cases in which the division is involved, the recommendation of the division, including any parenting time or visitation restrictions; (5) the potential kinship legal guardian's ability to provide a safe and permanent home for the child; (6) the wishes of the child's parents, if known to the court; (7) the wishes of the child if the child is 12 years of age or older, unless unique circumstances exist that make the child's age irrelevant; (8) the suitability of the kinship caregiver and the caregiver's family to raise the child; (9) the ability of the kinship caregiver to assume full legal responsibility for the child; (10) the commitment of the kinship caregiver and the caregiver's family to raise the child to adulthood; (11) the results from the child abuse record check conducted pursuant; and (12) the results from the criminal history record background check and domestic violence check conducted... http://www.kidlaw.org/main.asp?uri=1003&di=44.htm&dt=0&chi=1&empt=yes http://www.spannj.org/Family2Family/kincarenj.pdf