New Jersey Family Law Blog

When a couple divorces, it is easy to understand why some may want to erase all evidence of the failed relationship. That’s one reason behind women reclaiming their maiden names as part of their divorce settlements. But when children are involved, such decisions are not so easy. If, after reading the following, you need assistance with custody-related issues, contact the family law attorneys at The Rotolo Law Firm in Lebanon, N.J.

The New Jersey Appellate Court recently reversed a ruling by a Burlington County Superior Court judge granting a mother permission to change her children’s surname following her divorce from their father. While the couple shares legal custody of their two children, the mother is the parent of primary residence. (1)

The couple divorced in 2010, ending an 11-year marriage. Shortly thereafter, the mother changed the children’s surname to a hyphenated version of her and her ex-husband’s last names without consulting the children’s father. The father filed with the court to have his children’s name changed back. The mother countered with her own petition to change the children’s name to her own. (1)

The procedure for changing the name of a child varies according to the state in which you live. (2) In New Jersey, the procedure for a name change is basically the same for adults and children. A petition must be filed with the court requesting the change and giving a reason for the change. Additional documentation and a hearing may be requested if necessary. Courts primarily are concerned that the change is not being done in an effort to avoid consequences of any legal action pending or for fraudulent purposes. (3)

In the case of a child’s name change, New Jersey requires both parents be involved. If only one parent files for the change, the other parent must be given the opportunity to object if he or she thinks the change would not be in the best interest of the child. (3)

When the above-mentioned case originally was heard, the judge based his ruling on the fact that the mother was the parent of primary residence which, he said, allowed for a presumption in her favor. The Appellate Court, however, said the judge was mistaken because the law upon which the presumption was based did not apply since the couple had been married at the time the children were born. Instead, the Appellate judges ruled, the best-interest test needed to be applied. This test takes into consideration several factors including how long the children had used their surname, how the children identified as a part of a family unit, and any discomfort or embarrassment the children may experience as a result of the name change. (1)

The presumption in favor of a parent of primary residence is mostly used in instances of children born out of wedlock. Even then, though, the Court noted, most states are steering away from this so it does not become an issue in divorce negotiations. It could also be considered discriminatory since parents of primary residence are primarily mothers. (1)

The above-described case illustrates how even relatively simple issues can have complications. If you or someone you know needs assistance with divorce or custody issues, contact the family law attorneys at The Rotolo Law Firm located in Lebanon, N.J., which is in Hunterdon County, New Jersey.

(1) http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202539705405&slreturn=1
(2) http://www.essortment.com/change-minor-childs-last-name-24588.html
(3) http://www.lsnjlaw.org/english/courts/formslawsuits/changename/changenamenj/

In an article dated January 5, 2012, Matt Friedman, Statehouse Bureau reported on the Assembly panel approval of a bill that removes the State's two-year statute of limitations for lawsuits for child sexual abuse. Victor Rotolo's 2008 landmark case paved the way for this change. Read Matt Friedman's article here.

Social Security insurance provides survivor benefits for dependent children of deceased workers to help compensate for the loss of financial support. Dependent children are defined as unmarried and under age 18 (19 if still full-time high school students). But are children conceived after the death of a parent eligible for these benefits? According to a U.S. appeals court, they may be. (1)

Karen Capato, a New Jersey mother, filed for and was denied survivor benefits on behalf of her twins who had been conceived in vitro after the death of their father, Robert. Mr. Capato had his sperm frozen before undergoing treatments for cancer in the hopes of producing a sibling for the couple’s other child. Mr. Capato died in March 2002; the twins were born in September of the following year. (2)

According to Social Security regulations, applicants have the right to appeal an agency decision. That process has four levels: reconsideration, hearing, an Appeals Council review and a review by a Federal Court. (3)

When Mrs. Capato’s application for benefits was denied she appealed, but the agency’s decision was upheld by a lower court judge in New Jersey. Earlier this month, a U.S. appeals court in Philadelphia reversed the lower-court judge’s ruling. That court found no doubt the twins were the biological children of Karen and Robert Capato and, as such, may be entitled to Mr. Capato’s Social Security benefits. However, the court ruled that Mrs. Capato must prove the twins were dependents or “deemed to be dependents” of Mr. Capato at the time of his death. (4)

Although a bit unusual, this case is not unique. There are at least four cases in which the Social Security Administration is being sued for survivor benefits for children conceived after the death of their fathers, three of which are pending. (2)

Complicating the Capato case is the issue of residence. Rules regulating dependency under Social Security follow the inheritance laws of the various states. At the time of his death, Mr. Capato was residing in Florida where children conceived after the father’s death are not considered heirs unless expressly named in a will. Mr. Capato died before naming the twins in his will. However, the children were born in New Jersey where the law states they may be considered heirs. The case is now pending review by a U.S. District Court. (2)

(1) http://ssa.gov/pubs/10084.html

(2) http://www.trentonian.com/articles/2011/01/06/news/doc4d26542426cdc169599860.txt

(3) http://ssa.gov/pubs/10041.html

(4) http://www.mycentraljersey.com/apps/pbcs.dll/article?AID=2011101060331

Hanover Direct Inc., a Weehawken, NJ company, has agreed to recall approximately 495,000 roman shades and 28,500 blinds following reports of the accidental death of a 22-month-old toddler from Cedar Falls, IO. Meanwhile, the blind industry is working to develop better standards for manufacturing safer window coverings in an effort to protect children from similar accidents. (1)

The Consumer Product Safety Commission (CPSC) reported that the young boy was discovered by his father last May trapped in the cord of a roman shade. The toddler was rushed to the hospital, where he later died. It is estimated that one child dies each month in similar accidents. (1)
The problem is that young children can get tangled easily in the cords used to pull the shades up and down. The CPSC estimated that about 250 young children, including infants, have died from strangulation involving blind cords since 1990,. (2)

Earlier this month, another 22-month-old toddler from Burlington Township was critically injured after getting entangled in a window blind cord. The young girl was discovered by her mother and taken by medevac to Cooper University Hospital in Camden. (3)

Hanover Direct, parent company of Domestications, The Company Store and Company Kids, (1) is one of several companies who voluntarily agreed to recall their blinds and roman shades in 2009 following a March 2008 incident in which a 2-year-old Ocean View, DE, boy became entangled in roman shade cords after climbing on his toy chest to look out the window. Fortunately, that young boy did not sustain permanent injuries from this incident. (2)

At a meeting this month, the chairman of the CPSC addressed consumer advocates and officials from the window covering industry appealing to blind manufacturers to move quickly to approve new safety rules. It is expected that the current safety standards pertaining to roman shades will be used as a model for these new rules and will be expanded to cover other types of blinds. Those standards call for roman shades either to be cordless, or to have cords inaccessible to children, or cords that cannot form a hazardous loop in which a child can become entangled. (1)

(1) http://www.nj.com/news/index.ssf/2010/11/weehawken_window_shades_compan.html

(2) http://www.cpsc.gov/cpscpub/prerel/prhtml11/11036.html

(3) http://www.nj.com/mercer/indexssf/2010/11/child_critical_aftter_accident.html

Can schools dictate student behavior when classes are not in session? That’s the basis for a court battle between parents and the Haddonfield School District. At issue is the District’s “24/7 Policy” which states underage students caught drinking will be barred from sports and other extra-curricular activities. (1)

The school contends that extracurricular activities are a privilege, not a right, and therefore can be taken away. It also claims students representing the District through sports and other activities can be held to a higher standard. Some parents, on the other hand, argue that the school is overstepping its bounds; monitoring a child’s behavior outside of school is a parental obligation. (2)

Earlier this month, Haddonfield School District won a round when a U.S. District Court refused to oppose the policy. The Court stated there was insufficient proof the policy violated anyone’s rights. As the school pointed out, students do not have to participate in any activities and, if they chose not to, would not be subject to the behavior guidelines. The District now is seeking dismissal of the lawsuit. (1)

The parents involved in the case, however, claim the policy is unfair, particularly to students who have not been convicted, but only charged, with underage drinking. (1)

Haddonfield isn’t the only District struggling with this issue. A similar case occurred in Mountain Lakes where a student was suspended from the girls’ basketball team after attending a party where other underage students allegedly were drinking. The girl’s father fought the school District’s decision. That case was settled out of court. (2)

It’s been reported that about half a dozen school districts in New Jersey have conduct guidelines their students are expected to follow year-round. How serious is the underage drinking problem? A recent study found that the national average age when a person takes a first drink is 14. In New Jersey that age is 12.5 years. (3)

(1) http://www.courierpostonline.com/apps/pbcs.dll/article?AID=201010050344

(2) http://www.usatoday.com/news/education/2010-10-11-school-discipline_N.htm

(3) http://www.courierpostonline.com/apps/pbcs.dll/article?AID=201010170314

A State lawmaker has introduced a new bill that would amend New Jersey’s Graduated Driver’s License program to provide teens with more training and require parental involvement before those teens could obtain their driver’s licenses. (1)

This bill comes in response to a national study conducted by the American Automobile Association (AAA). The study found that almost half of the parents surveyed felt their teens were lacking experience in one area or another, experience that was necessary to be safe, unsupervised drivers. Among the areas cited where teen driving experience was lacking were heavy traffic/ highway conditions and rainy conditions. (2)

Assemblyman John Wisniewski (D-Middlesex) sponsored the bill which would increase the amount of training and experience teens receive before getting their licenses and require parents or guardians to accompany their teens to a driver-orientation program specifically designed for teens. (3)

If passed, the bill would bring the following changes:

• Teens under 18 would be required to attend, with their parents or guardians, a teen driver-orientation program approved by the Motor Vehicle Commission (MVC). This program would also be available to, but not mandatory for, new drivers between 18 and 21 years of age.

• Drivers under 21 holding a special driving permit would need 50 hours of driving practice, including 10 hours at night, with a guardian, parent or other adult supervisor in addition to the 6 hours of certified driving lessons currently required.

• Drivers with an examination permit of the same age would have a choice between the requirements listed above or 100 hours of certified driving practice, including 20 nighttime hours.

• The 6 hours of certified driving lessons currently required would have to be from private, one-on-one instruction.

• The MVC, along with the Division of Highway Traffic Safety, would be required to update guidelines for driver’s education and traffic safety and make them standard between private and public State schools.

• All new drivers between 16 and 20 would be required to hold a driver’s permit for one year, as opposed to the current six-month period, before receiving their probationary license. (1)

The new bill is hoped to make teen drivers better prepared for unsupervised driving and keep the roadways safer.

(1) http://www.assemblydems.com/Article.asp?ArticleID=3197

(2) http://www.newjerseynewsroom.com/style/bill-mandating-additional-education-practice-for-teen-drivers-introduced-in-assembly

(3) http://www.nj1015.com/pages/8392764.php

While the debate continues as to whether or not President Obama’s Health Care Reform Plan is beneficial for the country long term, several provisions of that plan took effect this week and are now enforceable by law.

Two of these changes, effective September 23, pertain specifically to children. No longer can children be denied coverage by an insurance company because of pre-existing health conditions and health coverage for children may continue under their parents’ insurance policies until they reach 26 years of age. (1)

Other changes forbid insurance companies from:

• placing a cap on benefits a person can receive over a lifetime;
• ending coverage for any reason other than the customer committing fraud;
• charging for such preventive services as colonoscopies and mammograms.

The final change that took effect requires mandatory coverage for high-risk pools of people who, in the past, were denied coverage due to pre-existing medical conditions. (1)

How do these changes affect New Jersey residents specifically? Healthcare reform reports from The White House provide a breakdown, which includes the following:

• 5,292,000 New Jersey residents with private insurance will no longer have to worry about their coverage being rescinded or limits being imposed on the amount of benefits or treatment they may receive; (2)

• about 27,800 young adults can continue to be covered under their parents’ policies until the age of 26; (2)

• 1,280,000 Medicare beneficiaries will be eligible for certain benefits, such as free preventive services; (3)

• 109,000 residents could receive rebates as a result of closing the gap in prescription drug coverage under Medicare; and (3)

• 144,000 small businesses could receive tax credits this year. (3)

While the Administration claims the new laws are already “making a difference in the lives of millions of Americans,” opponents are afraid that increasing premiums, greater government involvement and growing debt will have an adverse affect on the country. (1) Time will tell.

(1) http://www.aolnews.com/surge-desk-elections/article/ready-or-not-6-healthcare-changes-that-go-into-effect-on-thursd/19644446

(2) http://www.whitehouse.gov/healthreform

(3) http://www.whitehouse.gov/healthreform/map#healthcare-menu

This month, New Jersey’s Safe Haven Infant Protection Act celebrates its 10th anniversary. To date, statistics show that at least 47 babies, including one in Hunterdon County, have been surrendered safely under the provisions of this Act. (1)

This law was enacted to help prevent instances like that which occurred in Edison, NJ, this past winter. During a cold February snowstorm, a newborn infant boy was abandoned, wrapped only in a towel, on the hood of a car parked outside of a senior care facility. (2) He was just one of 32 infants abandoned illegally during the ten years that the State’s Safe Haven Law has been in existence. (1)

Fortunately, the Edison baby was discovered and brought to JFK Medical Center, where he was examined and found to be in good condition. Weather conditions on that day, however, could have caused a much different and tragic outcome. Officials estimated that a child left in those conditions probably would not have survived such exposure for more than one hour. (2)

It isn’t only the children that the Law protects. Parents who illegally abandon their babies could face charges of child endangerment, abandonment and worse, depending on the outcome.

New Jersey’s Safe Haven Law protects both child and parent by allowing parents, or someone designated by the parent, to safely surrender unwanted infants up to 30 days old at local police stations or hospitals without prosecution. The Law guarantees anonymity for the person surrendering the infant, except when child neglect or abuse is evident. Otherwise, no questions are asked. Information voluntarily offered by the surrendering parent though, particularly medical information, will be recorded for use in future adoption proceedings. Surrendering parents are also offered information on medical and social services available to them. (1)

Infants surrendered under the Safe Haven Law are turned over to New Jersey’s Division of Youth and Family Services (DYFS) and placed with pre-adoptive or foster families. Parents have 21 days to reclaim their child should they have a change of heart. After that time, it is assumed that, by voluntarily abandoning the child, the parents have relinquished their parental rights. This satisfies the federal requirement for termination of parental rights proceedings before adoptions can take place. (3)

(1) http://www.nj.com/hunterdon-county-democrat.index.ssf/2010/09/safe_haven_law_saves_47_new_je.html

(2) http://www.mycentraljersey.com/fdcp/?1283561893261

(3) http://www.ncsl.org/IssuesResearch/HumanServices/NCSLnetStateLegislativeReportSafeHavensfor/tabid/16422/Default.aspx