In June 2008, Monica Paul was shot and killed, allegedly by her estranged boyfriend, in a north Jersey YMCA while her 4-year-old son was in swimming class. The couple’s 11-year-old daughter witnessed the incident. Ms. Paul had taken out a restraining order against the boyfriend, Kenneth Duckett, shortly before the shooting. (1)

Under the pilot programs, risk assessments would be conducted before visitation and child custody matters were decided. Persons filing for a restraining order against their partner would be required to reveal if they and the partner had any children together; if the partner ever threatened to, or used, a weapon; and if the partner actually threatened them or their children with violence. This information would be included with the restraining order application and assessed by a court-appointed expert. (2)

The assessment would also consider whether the children were ever hurt or threatened with harm, emotional of physical, or with neglect; the victim was physically harmed, including suffocation, choking or sexually assault; or the victim believed the defendant would attempt to kill them or the children or kidnap the children. (2)

Risk assessments would be required in cases where a restraining order had been violated or when child visitation rights had been issued.

Even in cases where children are not physically harmed or threatened, witnessing incidents of domestic violence can cause them emotional harm. Experts contend that this also increases the risk the children themselves will become victims of physical harm in the future. It is hoped that this law, which is before the New Jersey Assembly Judiciary Committee, will end this violent cycle and keep children safe. (3)

(1) http://www.nj.com/news/index.ssf/2010/07/nj_bill_would_give_more_protec.html

(2) http://njtoday.net/2010/07/22

(3) http://www.nj1015.com/-Monica-s-Law--Aims-to-Protect/7738315

The case of Alejandro Mendoza is one such international custody battle. Alejandro Mendoza suspects his five-year-old son and three-year-old daughter may now be in Korea, but he is not sure. Violinist Mendoza teaches during the day and performs at night in the Lion King orchestra on Broadway. Mendoza once played a French violin made in 1902 but had to sell it for something he loves even more -- his children.

Mendoza's wife has a different story: "Mrs. Shim, the mother, was told by her 5-year-old son there was some type of sexual abuse by the father to the 2-year-old daughter," said Shim’s attorney Christine Bae.

But Mendoza denies the charge. He questions why, if his wife believed the charges, did she flee rather than show up in court to gain legal custody of the children. Shim will be extradited on March 12. It's not clear if or when the children will return to the U.S. for the divorce and custody proceedings.

Issues such as these were supposed to have been resolved by the Hague Convention on the Civil Aspects of International Child Abductions, which came into force in 1983 and now has 80 signatories, including the United States. Under its terms, a child abducted across international borders by a parent or relative must be returned within six weeks to his or her country of habitual residence, where custody issues can be adjudicated lawfully. It is the international equivalent of the interstate compacts that prevent an unhappy father or mother residing in Maryland from taking his or her children to Nevada and contesting custody there.

Mendoza has a message for his son: "Wait for Daddy. Be patient. I'm doing the best I can. Help your sister. I'm coming."

Sources:

Fighting for Kali: An international custody battle plays out in two countries' courts, http://www.nbcnewyork.com/news/local-beat/Jersey-Man-Fights-for-Children-86696867.html, March 6, 2010

http://www1.voanews.com/english/news/human-rights/Parental-Abduction-Becomes-Growing-International-Problem-84269082.html

The Washington Post, http://www.washingtonpost.com/wp-dyn/content/article/2010/02/18/AR2010021803401.html, The U.S. fails children abducted from America, By Bernard Aronson
Friday, February 19, 2010

The applicable law is N.J.S.A. 2A:17-56.23(a), which basically states that child support can not be made retroactive and will only be permitted from the date of the filing of the motion.

The issue here was whether child support is to be amended on the date of the child’s death or the filing date of the motion. There have been several scenarios where the courts have granted retroactive modification to child support. In the case of Keegan v. Keegan, 326, N.J. Super. 289, 741 A.2d 134 (App. Div. 1999), trial court granted a retroactive increase in the aspect of child support. Halliwell v. Halliwell, 326 N.J. Super. 442, 741 A.2d 638 (App. Div. 1999), dealt with the issue of retroactive modification of an obligor who was incarcerated for an extended period of time

The most analogous case to the one at bar was Mahoney v. Pennell, 285 N.J. Super. 638, 667 A.2d 1119 (App. Div. 1995), dealt with whether retroactive modification was permissible in the event of an emancipated child. The court said, “we cannot ascribe to this legislation, nor do we find any indication that the legislature so intended, to bar termination of child support retroactively to the time a child became emancipated.” Id. at 643.

The court in this case said that upon the death of the parties’ daughter, the duty to pay support for her ceased. To bar retroactive modification would be to punish financially an obligor who has thoughtfully, and in good faith, allowed an appropriate period of grieving and healing to take place before seeking redress in court.

Accordingly, this court found that N.J.S.A. 2A:17-56.23(a) does not bar the modification of child support retroactive to the date of death of any of the parties’ children.

The same story echoed a dozen times through Room E8 of Manhattan Family Court in a single day: fathers, pinched by the recession, pleading for a reduction in child support.

A salesman at Saks Fifth Avenue who is estranged from his teenage daughter said he feared he would be included in the next round of layoffs expected at his store.

A man who had been laid off from a factory said he managed to find work at Mets games, but for less pay, $9 an hour. Another man, on the verge of eviction, begged for a break from his $315 monthly payments.

“Last week was my child’s birthday, and I couldn’t get him a present,” he said, burying his head in his hands. “This is killing me.”

Since January, Family Court in New York has been filled with urgent requests like these, alarming judges and overwhelming calendars with what are known as modification cases.

The child-support office in Milwaukee saw a 20 percent spike in the number of custodial parents seeking enforcement of support orders last year, with most of the increase coming in the fall as the unemployment rate there began to creep upward.

To explain why they can no longer pay as much per month, the parents, typically fathers, cite layoffs, cutbacks in work hours and the loss of homes to foreclosure. Presented with documentation of falling incomes and rising expenses, judges often have little choice but to grant the downward adjustments, even in the face of protests from mothers struggling to support children.

Magistrate Matthew Troy, a stocky, gregarious man with a white horseshoe mustache who is one of 15 judges hearing such cases in Manhattan Family Court, said the decisions can be brutal. “It’s not a trickle down — it’s a direct route,” he said of the effects, especially in poor families. “Everybody who relies on the father gets hit.”

The reductions force some families to apply for welfare for the first time, while others become increasingly dependent on food stamps or risk eviction when they come up short on rent.

“In many cases, it’s devastating,” said C. A. Watts, the director of the district attorney’s family support division for Clark County. “Some of the parents absolutely depend on that money coming in. It’s a domino effect. The custodians need the money to feed and clothe the children. If the money stops, it puts a burden on the custodial parent, and they have to come up with funds another way. They’re not going to let their children starve.”

The amount of child support varies based on individual family circumstances, but New York State begins with these guidelines: A noncustodial parent generally pays 17 percent of gross income for one child, 25 percent for two children and up to 35 percent for five or more children, as well as a share of child care, medical and education expenses.

“We see everything,” said Peter Passidomo, chief of the state’s 125 support magistrates. “High income, low income, across the board. It’s just like in an intact family where the income earner has lost the job.”

Though Family Court in New York is open to the news media, names of the parties are typically not revealed.

Judge Troy, who has been a Family Court judge since 1999, said that in recent weeks he had seen a former Lehman Brothers executive whose $7 million in stock had disappeared, leaving him unable to pay his child support. And then there was the divorced couple whose combined income had surpassed $400,000 — until they both lost their jobs and were scrambling to figure out how to pay two private-school tuitions on roughly $800 a week in unemployment benefits.

Most, though, are more like the man who went from a decent-paying factory job to working in food service during Mets games in Queens. Judge Troy lowered his monthly payment for his three teenagers to $50 per month, from $686. Otherwise, he feared, the father would be unable to meet his obligation and face a more drastic punishment: jail.

“It wasn’t his fault he lost his job,” Judge Troy said. “I don’t want to throw a guy like that in the clink.”

The Saks salesman, on the other hand, whose 19-year-old daughter was asking for support for the first time, was ordered to pay $544 a month. (New York allows child support to be paid for dependents beyond age 18.)

In the case of the father who could not buy a birthday present for his son, Mr. Troy agreed that $315 a month — or 23 percent of his $16,640 salary — was too much. But the child’s mother, over speakerphone from her home in Georgia, angrily protested that she was already paying $1,800 a month for the child’s expenses.

“He is capable of getting another job,” she said. “I see no reason for him to get any kind of modification of his child support.”

The judge ultimately took the woman off speaker, and instead spoke quietly into the telephone to calm her down. He lowered the father’s payments to $50 a month (about 4 percent of his gross income).

“Somebody’s got to make the call,” Judge Troy said after the hearing had adjourned. “That’s the call I’m making.”

Mr. Passidomo said magistrates throughout the state have grown increasingly concerned about the volume and breadth of the modification requests. Upstairs from Mr. Troy, in Room 8C3, Magistrate Sudeep Kaur said she sees herself as “very strict about reducing child support,” but lately has had little choice in a spate of cases in which fathers have come to her after losing their jobs.

“It really has to be something beyond their control,” she said.

Lisa J. Marks, the director of Child Support Enforcement in Milwaukee, said her office has seen an influx of noncustodial fathers who have lost jobs in sales, construction and the service industry.

“We have seen individuals who have had fairly good income, and it’s not there any more,” she said.

“It’s really a teetering issue for child support offices,” Ms. Marks said. “You have one party who is really desperate because they’re not getting the full amount of support. And their expenses have increased, and their hours are probably decreasing.”

On the flip side are the fathers, and “they don’t have a job at all anymore,” she said. “You try to maintain fairness.”

The court will typically order fathers to pay a portion of their unemployment benefits in child support. But if their unemployment runs out, and they have no income, the court will temporarily resort to what is called “open support,” Ms. Marks said. What that means, she explained, is “you don’t have to pay any child support.”

The doctrine of parental immunity has always protected parents from judicial intervention in normal child rearing decisions. The New Jersey Superior Court Appellate Division recently reexamined this doctrine in Thorpe v. Wiggan. This matter involves the tragic death of a four year-old child, Joseph Wiggan, who burned to death while a passenger in a car driven by his father. This is a negligence acting being brought by the child’s mother against defendant for failing to remove his son from the car before the fire started. The plaintiff appealed the order dismissing her complaint, and the appellate court reversed and remanded for a new trial.
There are two versions of the facts. The first was relayed by defendant to a state police detective via telephone. In this version, he was driving on Route 78 when he noticed that his car was emitting smoke. He then heard “2 bangs,” & he smelled the smoke also, so he pulled over into the shoulder. He got out of the vehicle checked around and so the car was full of smoke. His child was in the back seat, but he was unable to get him out. He wound up in the hospital. He got burned.
The second version of the events, the defendant claims he heard the same “2 bangs,” and he believed a tire blew up. The care then “blew up in flames.” He pulled the car to the shoulder, ran into the bushes and rolled to put the fire out that was on him. Plaintiff conceded that she had no claim against defendant for his second version of the events. Plaintiffs only claim lies under the State Police version.

The Senate Judiciary Committee on Monday approved bipartisan-sponsored legislation that would require all palimony agreements to be in writing and signed in order to be enforceable.

The bill, S-2091 , amends N.J.S.A. 25:1-5, which already requires that prenuptial agreements be put into writing, to include palimony agreements. It adds a new paragraph "h" stating: "A promise by one party to a non-marital personal relationship to provide support for the other party, either during the course of such relationship or after its termination" shall be in writing and signed by the party to be charged.

Litigation of palimony claims is heavily fact-intensive and often acrimonious, since courts are typically dealing with nonexplicit promises of support between unmarried couples. The difficulty was compounded last year by the ruling in Devaney v. L'Esperance , 195 N.J. Super. 247 (App. Div. 2008), which held that cohabitation is not a necessary element of the marital-type relationship needed to be proved.

Claims that are asserted after the death of one of the parties are even harder to prove and are often complicated by contests raised by other claimants to the decedent's estate, such as in In re Estate of Roccamonte , 174 N.J. 381 (2002), which held enforceable an implied promise of support for life.

The bill would modify both of those rulings as well as Kozlowski v. Kozlowski , 80 N.J. 378 (1978), the case that first recognized the availability of palimony in New Jersey.

"This will save a lot of work for the judiciary in trying to determine whether these promises are enforceable," said one of the sponsors, Sen. Nicholas Scutari, D-Union. The other sponsor is Sen. Gerald Cardinale, R-Bergen, the committee's ranking Republican.

On the advice of Sen. Robert Smith, D-Middlesex, Scutari agreed to include language that would allow courts to void an agreement if the parties were not told that they had the right to seek independent counsel before signing. If the parties did consult counsel, the agreement would be enforceable.

The bill passed the committee 9-1, with only Sen. Loretta Weinberg, D-Bergen, voting no. She said she preferred that the bill include language requiring cohabitation.

The bill drew no public testimony and passed the committee without opposition. It now goes to the full Senate.

The Trial court held a competency hearing and found the appellant “is unable to form the requisite intent to maintain a divorce action.” Id. The trial court rejected the argument that the guardian could continue the action on his mother's behalf. The trial court then dismissed the complaint due to the Appellant's incompetency.

The only contest issue on appeal was that the trial court erred in ruling the guardian could not bring this action on her behalf. In support of her argument appellant cited State ex rel. Broer v. Alexander (1963), 175 Ohio St. 24, 23 O.O.2d 298, 190 N.E.2d 923, and Heskett v. Heskett (Nov 25, 1991), Champaign App. N. 91-CA-05, 1991 WL 256136. In Broer, the court held that “[t]he appointment of a guardian for a mentally incompetent person will not abate a divorce action instituted prior to the incompetency.” Broer, at paragraph one of the syllabus. In Heskett, the court that decided this case addressed a similar situation involving a party who was competent when he filed for divorce but who became incompetent while the action was pending. The court cited Broer and held that a guardian could continue that action on behalf of the incompetent party.

The Appellate court avoided this tricky issued in a procedural way. The cases cited by appellee were all before the adoption of the 1970 Ohio Rules of Civil Procedure. The court made its ruling by using these rules, they said:

“In resolving the issue before us, we look first to Civ.R. 17(B), which states that a guardianship “may sue or defend” on behalf of an incompetent. In turn, Civ.R. 75(A) specifically provides that “[t]he rules of Civil Procedures shall apply in actions for divorce, annulment, legal separation, and related proceedings, with the modifications or exceptions set forth in this rule. “The parties have not cited, and we have not found, any Ohio case law discussing the impact of these rules on a guardian's ability to file for divorce on behalf of an incompetent ward. But reading Civ.R. 17(B) and 75(A) together leads to the logical conclusion that William S. Broach, in his capacity as guardian, may sue for divorce on behalf of his incompetent mother unless some exception in Civ.R. 75 applies. Having examined the rule, we find no exception that would preclude Civ.R. 17(B) from applying in an action fro divorce pursuant to Civ.R. 75(A). Therefore, the appellant's guardian was entitled to file a divorce action on her behalf.