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Recent Developments in Family Law.

By Thomas H. Dilts, E. David Millard, Willian R. DeLorenzo, Octavia Melendez, Patricia B. Roe, Charles F. Vuotto Jr., and David Tang

(Editor’s Note: The information reproduced here was provided to members  of the judiciary at the judicial college in November of 2009. The analyses and comments are those of the authors, and not that of the judiciary.



P.L. 2009, c. 13(S-1304)

Upgrades Unlawful Possession of a Machine Gun or Assault Firearm to a Crime of the Second Degree

Link: www.nj.eg.state.nj.us/2008/Bills/PL09/13.PDF

This law upgrades the unlawful possession of a machine gun or assault firearm to a crime of the second degree.


P.L. 2009, c.28 (A-1563)

Amends Stalking Law to Broaden Protection for Victims

Link: www.njleg.state.nj.us/2008/Bills/PL09/28.PDF

This law expands the definition of “course of conduct” to include “directly, indirectly, or through third parties, by any action, method, device, or means, following, monitoring, observing, surveilling, threatening, or communicating to or about, a person, or interfering with a person’s property; repeatedly committing harassment against a person.” Stalking was redefined to include conduct that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress.




Directive # 01-09

Family-Juvenile Delinquency and Domestic Violence Appeal Rights Forms and Colloquies- April 13, 2009

Link: www.judiciary.state.nj.us/directiveee/2009/dir-01-09.pdf

This directive promulgates domestic violence (DV) contempt and juvenile delinquency appeal rights forms and colloquies to advise DV contempt defendants and juveniles of their right to appeal.

Directive # 10-09

Amended Juvenile Complaint Form-Addition of Degree of Offense-September 28, 2009

Link: www.judiciary.state.nj.us/directive/2009/Dir-10-09.pdf

This directive adds a box to the juvenile complaint form that requires law enforcement to indicate the degree of the offense with which the juvenile is charged.

Assignment Judge Memorandum

Screening Protocol for Juveniles in Juvenile Justice Commission (JJC) Residential Placement-June 22, 2009

Link: [No link available]

This memorandum sets forth procedures for making determinations on JJC requests to remove juveniles from JJC residential placements.

Assignment Judge Memorandum

Adult/Juvenile Expungement Packet for Self-Represented Litigants-May 1, 2009


This memorandum promulgates the revised adult/juvenile expungement packet for self-represented litigants. The Criminal Division will process all expungements and criminal part judges will hear all expungements.


State of New Jersey v. Best, 403 N.J. Super. 428 (App. Div. 2008) [Judge Baxter] A-0891-07T4 (cert. granted on 2/4/2009; C-609 September Term 2008)

Warrantless Search of Student’s Car in School Parking Lot

School officials need only satisfy the reasonable suspicion standard and need not have probable cause to search a student’s vehicle parked on campus. The decision of the appellate court affirmed the trial court decision denying a motion to suppress involving a search of a student’s vehicle without a search warrant or probable cause, on reasonable  suspicion that contraband would be located therein.

School officials at the Egg Harbor Township High School received information from a student that the defendant had sold him suspected contraband earlier in the day. A search of the defendant’s person and school locker produced no contraband, at which point the search was expanded to the defendant’s vehicle, parked on campus pursuant to a school parking permit.

Acknowledging that automobile searches generally require probable cause and a search warrant, absent exigent circumstances, the court noted that “for school students however, the landscape is markedly different.” Id. At 435. The court followed the decision in State in Re T.LO., 94 N.J. 331 (1983) authorizing a search of the student and personal locker on the lesser reasonable suspicion standard, concluding the same standard would apply to a vehicle parked on campus pursuant to a school parking permit.

Underlying the court’s decision is the substantial interest in maintaining discipline and a drug-free environment for students.

I         n light of the magnitude of the threat that narcotics in a school environment pose to the well-being of students, we have no hesitancy concluding that the T.L.O. standard, rather than probable cause, should govern searches of student vehicles parked on school grounds. 403 N.J. Super. At 438.

In applying the T.L.O. standard to the actions of the school officials in conducting the search, the court was satisfied that the conduct was appropriate as there was a reasonable suspicion that contraband would be found in the automobile.

Comment: The New Jersey Supreme Court  granted certification in February 2009.

Safford Unified School District #1, et al., v. Redding, 129 S. Ct. 2633 (2009) [Justice Souter] No. 08-479

Search of Student’s Underwear Violated the Fourth Amendment of the U.S. Constitution

The scope of the permissible search of a school student under the reasonable suspicion standard of In Re T.LO., 94 N.J. 331 (1983) must be reasonably related to the circumstances justifying the initial inquiry. A search is “permissible where it is not excessively intrusive in light of the age and sex of the student and nature of the infraction.” 129 S. Ct. at 2642. A strip search of a middle school student to search for prescription pills constituted an unreasonable search under the Fourth Amendment.

School officials obtained information establishing reasonable suspicion that 13-year-old Savana had distributed prescription strength pills (Ibuprofen) to another student. School administrative policy prohibited possession of any prescription drugs by students outside of the nurse’s office. After a search of  Savana’s personal effects and outer clothing, she was subject to a partial strip search requiring her to pull her undergarments out away from her body. The search revealed no contraband. This action arose by a suit brought by Savana’s mother against the Safford United School District and the individual involved in the search.

The Court  determined that the school officials had reasonable suspicion as “a moderate chance of finding evidence of wrongdoing,” distinguishing it as a significantly lesser standard than probable cause. The issue here was not whether reasonable suspicion existed, but rather the scope or extent of the permissible search.

Both subjective and reasonable societal exceptions of personal privacy support the treatment of such a search as categorically distinct, requiring distinct element of justification on the part of school authority for going beyond a search of outer clothing and belongings. 129 S. at 2641.

The Court did not announce a per se rule prohibiting strip searches, but made clear that to be justified, a search more intrusive than the student’s outer clothing would require additional facts relating to imminent danger to other students or specific information that such an intrusive search would produce contraband.

Comment: While continuing the reasonable suspicion standard for searches conducted on school premises, the Court made clear that the scope of such searches must be reasonably related to the nature of the harm to be prevented.


State in the Interest of R.M., 408  N.J. Super. 304 (App. Div. 2009) [Judge Skillman, P.J.A.D.] a-0105-07t4

Stop and Search of Juvenile Violating a Municipal Curfew Ordinance

A juvenile violating a municipal curfew ordinance may be detained by police pending contact with a parent or guardian, and a search of the person and package within his control constitutes a valid search incident to arrest. The appellate court affirmed a trial court denial of a suppression motion filed by the juvenile.

Several hours after a municipal curfew ordinance prohibits juveniles on the street, a municipal police officer observed two individuals appearing to be under age, jay walking, causing a car to brake. In response to the officer’s inquiry, they acknowledged they were 16 years of age and had no identification with them. However, the officer observed that the backpack R.M. carried had a wallet in an outer mesh pocket. The officer removed the wallet and found credentials for a third party unknown to either juvenile. The wallet was subsequently determined to be stolen, and R.M. was charged with receiving stolen property as well as violation of the curfew ordinance. All parties concede the lawfulness of the initial investigative stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968). The court concluded that the search of the wallet was valid as a search incident to arrest pending R.M.’s identification and return to his parents. N.J.S.A. 2A:4A-31.B. (2) Authorizes law enforcement officers to take a juvenile into short-term custody if he has reasonable suspicion the juvenile is out without consent of parents or guardian. There is also no requirement that the actual arrest must pre-exist the search. As long as the right to arrest pre-existed the search, the search is not invalidated because the officer did not advise the juvenile he was in fact under arrest.

     Comment:  A juvenile violation of a municipal curfew ordinance provides authority for police to take the juvenile into short-term custody and to conduct a search incident to arrest.

State in the Interest of P.M.P., 200 N.J. 166 (2009) [Justice Wallace] A-63-08

Juvenile  Complaint Equivalent of Indictment for Uncounseled Confessions

The filing of a juvenile complaint by the prosecutor’s office, followed by the issuance of an arrest warrant, constitutes a “critical stage” in the proceeding triggering a statutory right to counsel. Further, once such a critical stage is reached, the defendant may not  waive his Miranda rights absent counsel.

In a divided opinion, the Supreme Court reversed the appellate panel’s decision, reinstating the family part judge’s suppression of the defendant’s confession.

Acting on detailed information provided by the victim, and municipal police officers, the Cape May County Prosecutor’s Office filed a juvenile complaint against the juvenile for aggravated sexual assault. At the time of the complaint, the defendant was 20 years of age, but the allegations concerned conduct occuring seven years earlier. After securing an arrest warrant, the defendant was taken into custody, and after being read his Miranda warnings admitted the material elements of the offense. At the subsequent suppression motion, the family part judge suppressed the statements, finding that the filing of the juvenile complaint by the prosecutor’s office was the substantial equivalent of an indictment, after which, an adult, no less a juvenile, cannot waive the right to counsel without approval of counsel. State v. Sanchez, 129 N.J. 261 (1992). The Appellate Division thereupon granted the state leave to appeal and reversed. [The Appellate Division decision was also handed down earlier this term, and may be founded at State ex. Rel. P.M.P., 404 N.J. Super. 69 (App. Div. 2008). The appellate opinion emphasized the parenspatriae role of the juvenile court and found that existing due process protections are sufficient to safe guard the juvenile’s rights.]  The Supreme Court granted the defendant’s motion for leave to appeal.

The Court went to great lengths to emphasize the active involvement of the prosecutor’s office in determining that a “critical stage” had been reached in the proceedings. The Court specifically declined to author a broader holding that all juvenile complaints are the functional equivalent of an indictment.

[W]e conclude that when the  Prosecutor’s Office initiates a juvenile complaint and obtains a judicially approved arrest warrant, a critical stage in the proceeding has been reached, implicating the juvenile’s statutory right to counsel. 200 N.J.  at 178.

Once a “critical stage” has been reached in the proceeding implicating the right to counsel, no uncounseled waiver of that right is permitted.

Comment:  The Court declined to provide a bright line ruling that all juvenile complaints are the functional equivalent of an indictment. Whether a particular juvenile complaint constitutes a critical stage appears to require analysis of the extent of the involvement of the country prosecutor’s office’s in the proceedings.


State in the Interest of A.s., 409 N.J. Super. 99 (App. Div. 2009) [Judge Payne] A-5747-07T4

Juvenile’s Confession Required Suppression

The state failed to meet its burden to prove beyond a reasonable doubt that the confession of a 14-year-old girl was knowingly, intelligently, and voluntarily given. The confession should have been suppressed, according to this appellate decision.

A.S., a 14-year-old girl, was charged with one count of conduct which, if committed by an adult, would constitute first-degree aggravated sexual assault, commission of an act of sexual penetration on a victim who is less than 13 years of age. A.S. was accused of performing oral sex on the four year-old victim, C.J. The trial judge did not suppress the confession, which the appellate panel found to be error. The problems with A.S.’s statement to the police are that it had a number of defects, including that:

1)     Her mother read the Miranda warning.

2)     A.S. expresses great reluctance in speaking.

3)     The police officer assured A.S. that she should tell the truth because “the truth       is only going to help you…and the more truthful you are and the more complete you are, the better it looks for by You.”

4)    A.S.’s mother dominated t5he interview.

Although her presence technically met the requirements of State v. Presha, 163 N.J. 304, 313 (2000), by having a parent present, in this case the court held that because the  mother of the victim, C.J., that she had a conflict of interest. The appellate panel held:


Where the adult is known to have a close family relationship to both the victim and the alleged perpetrator, the prudent approach would be to require the presence of an attorney capable of advising the juvenile with respect to her rights and her potential culpability, a procedure adopted elsewhere. 409 N.J. Super. At 122-23.

Although the confession should have been suppressed in this case, the trial judge made clear as part of his decision that even without the confession, there was ample evidence from C.J. (who did testify) and in C.J.’s statements to his mother and to the detective that would cause the court to conclude beyond a reasonable doubt that “A.S. is guilty of his offense as charged.” Id. At 123. The appellate panel reluctantly upheld A.S.’s adjudication as a delinquent.

Comment: In the case of a statement by a 14-year-old juvenile, the court is required, taking into account all of the circumstances, to determine whether the waiver of the juvenile’s rights was “voluntarily, knowingly and intelligently” done. Reluctance by the juvenile, coercion from the parent who is present, and  improper statements and assurances from the police officer are the factors present that can cause the trial judge to conclude that the waiver was not voluntarily, knowingly or intelligently given.

State in the Interest of Z.W., 408 N.J. Super. 535 (App. Div. 2009) [Judge LeWinn] A-4759-07T4

In Camera Review Required Before DYFS Report May be Provided to Juvenile’s Defense Counsel

When an unauthorized party requests the release of confidential Division of Youth and Family Services (DYFS) records, those records shall not be released to that unauthorized party unless and until a court, through an in camera review, determines that the disclosure of the confidential information is necessary to adjudicate a matter before it.

Z.W., a 14-year-old boy, had been accused of sexually molesting his four-year-old nephew. DYFS investigated the incident and ultimately concluded in a report that the claim was unsupported by any evidence. As part of the investigation, DYFS conducted a psychological evaluation of K.W., the victim’s six-year-old sister, who claimed to have been a witness to the sexual assault. The report was released to the Essex County Prosecutor’s Office (ECPO).

At trial, the defense counsel requested a copy of the DYFS report in discovery; the ECPO requested that the court first conduct a preliminary in camera review of the confidential records to determine whether such disclosue was necessary. The court denied the ECPO’S request. The state appealed the lower court’s ruling on the issue, asserting that the trial court had improperly denied the state’s request for an in camera review. On appeal, the appellate  court reserved the lower court’s holding. The court relied on the relevant statute N.J.S.A. 9:6-8. 10a. a., which states that DYFS shall release confidential records only to parties expressly authorized, such as to police or other law enforcements agencies investigating a report of child abuse or neglect. N.J.S.A. 9:6-8.10A.B.(6) further permits such access to a court, and stated that “such records may be disclosed by the court…upon a finding that such further disclosure is necessary for determination of an issue before the court.” Based on the aforementioned statute, the appellate court found that an in camera review of the psychological evaluation was required before any confidential information could be released to the defense counsel in a juvenile proceeding. The appellate court further highlighted the importance of protecting child abuse information and records from unnecessary disclosure.

Comment:  This case emphasizes the state’s compelling interest in protecting child abuse records and information from unwarranted discovery. This important interest in preserving confidentially is reflected in the appellate court’s strict adherence to the statute, which limits who can receive such confidential information and under what limited circumstances.





Amendment to R. 2:6-11 September 1, 2009

Time for Serving and Filing Briefs; Appendices; Transcript; Notice of Custodial Status

Link: www.judiciary.state.nj.us/notices/2009/omnibus.pdf

This amendment requires that, in DYFS appeals, an appellant or respondent must advise the appellate court of a change in the child’s placement status.

Amendment to R. 2:9-1 September 1, 2009

Control by Appellate  Court of Proceedings Pending Appeal or Certification-Ineffective Assistance of Counsel Claim in Appeals from Judgment Terminating Parental Rights

Link: www.judiciary.state.nj.us/notices/2009/omnibus.pdf

This amendment responds to the Supreme Court’s decision in DYFS v. B.R., 192 N.J. 301 (2007), which required the development of procedures to address termination of parental rights (TPR) cases where an ineffective assistance of counsel claim is pled on appeal.

The amendment, which adds Section (c)  to R. 2:9-1, authorizes the appellate court, when ineffective assistance of counsel is an issue in TPR appeals, to retain jurisdiction and remand the case to the trial court for an expedited hearing only on the ineffective assistance of counsel issue. The remand must be completed within 30 days. The amendment permits parties to submit simultaneous supplemental briefs no later than seven days after the filing of the transcript of the remand proceedings.

         Related:  New R. 2:10-6 and R. 5:12-7.

New R. 2:10-6-September 1, 2009

Allegation of Ineffective Assistance of Counsel in Termination of Parental Rights Cases

Link: www.judiciary.state.nj.us/notices/2009/omnibus.pdf

This new rule sets forth the requirements of the appellate brief, particularly the factual basis for asserting ineffective assistance of counsel and why the result would have been different if the trial lawyer’s performance were not deficient Rule 2:10-6 references new R. 2:9-1(c)  for the remand procedures.

         Related:  Rule 2:9-1(c) and new R. 5:12-7.

New R. 5:12-7-September 1, 2009

Claims of Ineffective Assistance of Counsel

Link: www.judiciary.state.nj.us/notices/2009/omnibus.pdf

This new rule specifies that ineffective assistance of counsel claims must be raised on direct appeal of a final order. Rule 5:12-7 references proposed R. 2:9-1(c) and new R. 2:10-6 for the appeal and potential remand.

       Related: Rule 2:9-1(c) and new R. 2:10-6.

        Directive # 03-09

Co-Occurring Child ABUSE AND Domestic Violence- Operational Guidance- May 29, 2009

Link: www.judiciary.state.nj.us/directive/2009/dir_03-09.pdf

This directive provides operational guidance to judges and court staff on the implementation of policies to protect domestic violence victims and their children who are exposed to such violence.


DTFS v. A.R., 405 N.J. Super. 418 (App. Div. 2009) [Judge Stern, P.J.A.D.] A-5079-07T4

Comparative Bonding Evaluations Required in Termination of Parental Rights Action

When the court is considering whether termination of parental rights will do more harm than good, DYFS has the burden of providing a bonding evaluation between the child and the foster parents and a separate evaluation between the child and the biological parents.

When a parent has successfully complied with all services provided by DYFS, and DYFS has not provided evidence comparing the child’s bond with the foster parent and the biological parent, DYFS has failed to prove prongs two and four, and therefore parental rights may not be terminated.

A.R. is the mother of four children and is married to C.S. who is the father of C.S. Jr., and Gwen. DYFS appeals from a judgment that terminated the paternal rights of fathers M.M. and C.S. to their respective children, but denied the termination of parental rights of the mother A.R. DYFS only appeals the denial of termination of  parental rights with respect to C.S. Jr.

On September 20, 2005, DYFS removed A.R.’s three children from the home due to imminent danger because of the parent’s drug use and C.S.’s incarceration. C.s. Jr., was born June 28, 2006, and A.R.’s other three children were returned on July 25, 2006. The children were again removed in September, when A.R. was found to have allowed C.S. to return home and be with the children while he was actively using drugs. On November 8 of that year, the children were returned home, but a month later, on December 14, 2006, they were removed again because C.S. was found in the house and under the influence of crack cocaine.

DYFS then filed a complaint for guardianship. After a hearing on December 17, 2007, a trial date was set and A.R. was ordered to attend a bonding evaluation. The evaluation never took place. The trial took place in January and February of 2008, and the trial court denied the termination with respect to A.R., stating that DYFS had not satisfied its burden for prongs two and four of the statutory test required for termination under N.J.S.A. 30:4C-15.1a.

A.R. complied with all services. No evidence was provided demonstrating C.S. Jr. had any special needs that would warrant different treatment than his siblings, who had been returned home and were not the subject of this appeal. DYFS also did not demonstrate by clear and convincing evidence that A.R. would be unable to eliminate the risk of harm to C.S. Jr. if returned, and that she could not, independently, provide him with a safe and stable home now.

Dr. Bromberg performed the psychological and bonding evaluations for DYFS. Although he opined that  A.R. was unable to parent at the time of the evaluation, he was unable to formulate an opinion with respect to C.S.  Jr.’s bond to A.R., and the impact that termination of parental rights would have on him. Another psychologist performed a bonding evaluation between the foster parents and C.S. Jr., opining that he would suffer significant and enduring harm if separated from them. However, he did not perform bonding evaluations between A.R. and C.S. Jr.

The trial court noted:

[B]ecause it was DYFS’s burden to present evidence of that bond, “and to provide evidence  to compare and contrast” the bonds junior had with his foster parents and biological mother, “the Division has failed to demonstrate that termination of parental rights would not do more harm than goods as to the child.”  Id. at 432.


The appellate court stated that it “[is] not the fact finder and cannot consider the matter de novo,” Id. at 438, and further stated that “there is no attack on the admissibility of the expect testimony; its consistency and its credibility are for the trial court to assess.” Id.

The appellate court agreed with the trial court and noted:

[W]e can envision very few scenarios in which comparative evaluations would not be required. Indeed, even when not used to prove harm under the second prong, it is of great significance in evaluating comparative harm under the fourth prong in showing that “ ‘ termination of parental rights likely will not do more harm than good,’” (citation omitted). Accordingly, we agree that the comparative evaluation was required. Id. at 440.


Dispositional Hearing Requirement After Finding of Abuse or Neglect

After a Title 9 finding of abuse or neglect, the offending parent or guardian is entitled to a dispositional hearing to determine whether the children may safely return to his or her custody, and if not, what the proper disposition should be.

Gloria and Malcolm Moore were divorced and shared joint custody of their two children,  Kadina  Moore (11/2/92) and Curtis Moore (4/25/94) (the Court used fictitious names). After receiving a text message from his daughter stating that she and her mother (Mrs. Moore) were involved in an altercation, Mr. Moore called the police. The trooper responded to the home of Mrs. Moore, and after an investigation called DYFS, which later filed a complaint against Gloria and Malcolm alleging abuse and neglect and seeking care , custody, and supervision of the children.

The  trial court awarded DYFS custody of the children, who were then placed with their father in Florida. After the fact finding and several case management conferences, DTFS filed a motion to dismiss the litigation. DYFS recommended that the children “return to their mother’s care in New Jersey if they still wish to do so.” Id. at 393. DYFS made it clear that the children could be safely returned and there was no evidence that the children feared for their safety . At the hearing, DYFS and the law guardian changed their position and formed the court that based on the wishes of the children, they should remain in Florida. The trial court granted DYF’s motion to dismiss the proceeding and granted Malcolm primary physical custody of the children without conducting a final dispositional hearing. Gloria received parenting time and the trial court indicated that any changes in custody were to be addressed through the matrimonial docket. Gloria appealed, the appellate court reversed, and the matter was remanded for a custody hearing.

The Supreme Court ruled that the focus at a dispositional hearing is not the best interest standard but rather whether the children can be safely returned to the custodial parent. The Court noted that:

Both the fact-finding hearing and the dispositional hearing are critical stages in Title Nine proceedings. Those hearings must be conducted “with scrupulous adherence to procedural safeguards,” and the trial court’s conclusions must be based on material and relevant evidence, N.J.S.A. 9:6-8.46(b), (c). Id. at 401, citing DYFS v. A.R.G., 179 N.J. 264, 286 (2004).

The Court agreed with “the Appellate Division’s deep concern with the ‘procedures employed during the several hearings that followed the fact-finding hearing,’ and in particular, the denial of the mother’s basic due process rights’ at the final proceedings on October 26, 2006.” Id. at 402, citing G.M, 398 N.J. super. At 37-38. The Court further agreed that”…the panel correctly noted the inadequacy of the proceeding due to the lack of sworn witnesses, and the termination of the proceeding over the mother’s ‘well-founded claim of surprise.1” Id.

The Court concluded that “the key deficiency of the failure to hold a custody hearing, but in the failure to hold a dispositional hearing,” Id., at which time “both sides may present material and relevant evidence for the court to determine whether the children may safety be released to the custody of their mother, who was responsible for their care at the time of the filing of the complaint, or whether, consistent with N.J.S.A. 9:6-8:51, some other disposition is appropriate.” Id.

By applying the rules of statutory construction, the Court also concluded that “[a]lthough ’placement’ is not defined in Title Nine, we believe that the Legislature intended to include a non-custodial parent, such as the father here, as ‘a relative or other suitable person’ with whom the Division was authorized to place the child .” Id. at 403, citing N.J.S.A. 9:6-8:54(a).

DYFS  v. V.M., 408 N.J. Super. 222 (App. Div. 2009) [per Curiam] A-4627-06T4

Mother’s Refusal to Consent to a Cesarean Section; Substantial Additional  Evidence of Abuse and Neglect to Support Termination of Parental Rights

A mother’s lengthy mental health history, coupled with “combative” and erratic behavior subsequent to the birth of a child, is sufficient additional evidence for a finding of abuse and neglect.

DYFS commenced a Title 9 proceeding and placed J.M.G in its custody after they learned that on April 26, 2006, during her hospitalization in anticipation of J.M.G. ‘s delivery, V.M., the natural mother, demonstrated combative and erratic behavior including a refusal to consent to a Cesarean section, in spite of medical opinion that the fetus demonstrated signs of distress and the Cesarean section was necessary to avoid imminent danger to the unborn fetus. In addition, V.M. had been under psychiatric care for 12 years prior to J.M.G.’s birth, and neither she nor B.G., the father, was forthcoming about her treatment or diagnosis. On May 24, 2006, the trial court found that the “defendants abused or neglected to cooperate with the medical professionals… during childbirth.” Id. at 251. A finding of abuse and neglect was made against both parents. On March 19, 2007, the trial court ordered J.M.G to remain in placement, for DYFS to find a pre-adoptive home, and that the parents undergo psychiatric treatment. DYFS filed a complaint for termination of parental rights on April 26, 2007. The appellate court affirmed the judgments against the mother and reversed the trial court’s finding as to the father, noting that the only evidence against him was his complacency with V.M.’s Cesarean section refusal.

In a lengthy concurring opinion, Judge Carchman addressed the issue of whether V.M.’s  refusal to have a Cesarean section can, as a matter of law, be considered an element of abuse and neglect as against her: Judge Carchman thoroughly elucidates the reason why “a finding of abuse and neglect cannot be based on a mother’s medical decisions during pregnancy,” Id., a decision the per corium opinion believes need not be addressed. He, however, concurred that “there was sufficient additional evidence to support the judge’s finding that V.M. placed J.M.G. in imminent danger,” Id. at 249, after the child’s birth.


Comment: Contrary to DYFS v. A.P., 408 N.J. Super. 252 (App. Div. 2009), infra, this appellate court addressed the issue of a finding under Title 9 notwithstanding the fact that parental rights had been terminated under a Title 30 proceeding. Furthermore, this court reversed the finding of abuse and neglect against the father. In A.P., the trial court terminated parental rights under Title 30 without making any finding of abuse and neglect under Title 9 and determined the issue of abuse and neglect to be moot.

DYFS v. A.P., 408 N.J. Super. 252 (App. Div. 2009) [Judge Skillman, P.J.A.D.] A-3564-07T4

Title 9 Adjudication is not a Prerequisite to DYFS Filing of a Title 30 TPR Petition

DYFS ‘s dismissal of a Title 9 mater prior to an adjudication of abuse or neglect does not preclude DYFS from filing a termination of parental rights petition under Title 30.

Where DYFS files a Title 9 complaint alleging abuse or neglect and subsequently files a complaint for termination of parental rights under Title 30, there is no  requirement that a finding of abuse or neglect be made prior to the filing for termination of parental rights. Since no finding was made under the Title 9 proceeding, the court concluded that the appeal was moot, emphasizing that:

A.P.’s due process rights will be fully protected by the trial of the Title 30 action, which will afford her the opportunity, under the criteria set forth in N.J.S.A. 30:4C-15.1(a), to  contest the charges of abuse or neglect or other harm to the child caused by the parental relationship, A.P’s willingness and ability to address the causes of that harm, the adequacy of the remedial services DYFS provided A.P., and whether the termination of A.P.’s parental rights to S.H. would do more harm than good. Moreover, DYFS will bear the burden of establishing the standards for the termination of parental rights by “clear- and-convincing-evidence” rather than the lesser burden of proof by a “preponderance of the evidence” that would apply in an action under Title 9.id. At 264.

On December 18, 2004, DYFS filed an initial complaint under Title 9 alleging that A.P. and F.H abused or neglected K.B. In August 2005,  DYFS filed an amended complaint to include A.P and F.H.’s second child, S.H., who was born on June 23, 2004. On August 25, 2005, the trial court entered an order that placed S.H. under the care, custody and supervision of DYFS, and placed S.H. in the physical custody of his paternal grandmother. On September 19, 2007, the trial court conducted a permanency hearing regarding the abuse and neglect of S.H., and following the hearing, the trial court entered an order stating that it was “appropriate and acceptable” for DYFS to file a complaint for the termination of A.P.’s and F.H.’s parental rights.

The complaint for termination of parental rights under Title 30 was filed on January 14, 2008, and the trial court dismissed the Title 9 abuse or neglect action on January 28, 2008. In the order dismissing the litigation it was further ordered that S.H.’s legal custody was continued with DYFS and his physical custody was continued with DYFS and his physical custody was continued with his paternal grandmother. Following this order, A.P. filed a notice of appeal.

Comment: This court’s finding is consistent with DYFS v. K.M., 136 N.J. 546 (1994), which stated:

DYFS is not required to try a Title 9 action to conclusion before bringing a Title 30 action for the termination of parental rights. (Citation omitted). In reaching this conclusion, the Court observed that “[I]f DYFS cannot bring a termination proceeding until an abuse or neglect action finally winds its way through the courts, the Legislature’s goal of achieving permanency in the placement of children will be frustrated and the child will suffer.” Id. at 559.

DYFS  v. M. C. III, 405 N.J. Super. 24 (App. Div. 2008) [Judge Le Winn] A-1845-07T4

Sufficiency of Evidence in Fact Finding Hearing to Meet Preponderance Standard

The finding by the trial court of physical abuse was reversed in this appellate decision because the court relied upon inadmissible hearsay as the basis for its decision.

The father was found by the trial judge to have physically assaulted his 15-year-old son and the son’s 13 year-old stepsister. The father denied hitting the children, but contended that the children jumped on him and on one occasion he did push his son to prevent him from going downstairs. The police responded on two occasions to the house and police reports indicate that there was no visible evidence of any injuries to the children. After the alleged assault, the two children went to their mother’s home and the mother took them to the hospital. The children told the treating physician their version-that both were physically assaulted-and the treating physician observed injuries consistent with those statements. The DYFS intake worker interviewed the children and reviewed the medical examination forms that DYFS submitted to the hospital’s treating physician, Dr. Lewis.

At trial, the DYFS screening summary that was completed by the intake workers was admitted, although neither of   the intake workers quoted Dr. Lewis.  The forms that Dr. Lewis filled out for DYFS were also received in evidence. Dr. Lewis did not testify.

Relying upon In re Guardianship of Cope, 106 N.J. Super.336(App.Div.1969), the appellate panel reversed the finding of abuse and remanded the matter Judge Le Winn, speaking for the court, noted that R.5:12-4(d) applies, and that DYFS is permitted to introduce into evidence reports by staff personnel and professional consultants. The rule further provides that “conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal.”

The  court held:

A critical flaw in DYF’s  argument is that neither Dr. Lewis nor any other staff at Cooper Hospital who may have been involved in treating the children come within the category of “affiliated medical…consultants” as contemplated in  re Guardianship of Cope, supra, 106 N.J. Super. At 343, 255 A.2d 798. When, as here, DYFS first became involved when contacted by Dr. Lewis, the resulting DYFS   reports are a step removed from the type of report contemplated by Rule 5:12-4(d), as well as by In re Guardianship of Cope.405 N.J. Super. at  35 -36.

Because Dr. Lewis is a “non-affiliated professional” and not retained by DYFS, the facts and opinions contained in his statements to the DYFS screening worker and on the DYFS-provided medical examination forms “do not rise to the reasonably high degree of reliability.”

The court concluded:

Where, as here, a DYFS worker was permitted to testify “regarding medical conclusions attributed to [a doctor]…who was not a [DYFS] consultant [and] did not testify at the fact-finding hearing[,]…the testimony by [the worker] regarding the [examination] results [was] unreliable and inadmissible.” (citation omitted). Id. at 37.


The appellate panel did not reach the issue of whether Crawford v.Washington, 541 U.S. 36 (2004), applies in DYFS abuse and neglect proceedings. The appellate panel expressly declined to deal with the issue because the case was reversed for other reasons.

DYFS  v. J. L., No. A-1103-08T2, 2009 N.J. Super. LEXIS 221(App. Div.2009)[Judge Payne] A-1103-08T2

Gross Negligence Standard Applies to DYFS Administrative Substantiation of Neglect

Before DYFS can make a finding of substantiated neglect, the parental conduct in question must meet the gross negligence standard articulated in G. S. v. The Dept. of  Human Services, 157 N.J. 151 (1999). The appellate court reversed DYFS’s finding, and entry into the central registry, that the defendant mother had committed an act of child neglect.

DYFS determined that J.L. commited an act of child neglect by failing to adequately supervise her three-year-old and five-year-old sons. After playing with her sons outside of the parties’ condominium she allowed them to return home alone a short distance, while watching them as they walked to their building. The children entered the home but were not able to get out of the home because of a child safety handle on the inside of the door. The five-year-old became upset and dialed 911 because he could not get outside. The defendant returned to the home 30 minutes after her son’s 911 call.

DYFS’s investigation revealed that no safety interventions were required, no services were needed and the risk of neglect or abuse was “low”. DYFS closed the file after determining the finding of neglect by the mother was substantiated. On the parent’s appeal, the administrative law judge recommended that a finding of abuse not be made, based on the gross neglect standard set forth in G.S. v. The Dept. of Human Services, which held that:

a gross neglect standard should be employed in determining whether the parent or guardian had failed to exercise a “minimum degree of care” and therefore had committed an act of child abuse or neglect pursuant to N.J.S.A. 9:6-8.21c(4).2009 N.J. Super. LEXIS  221 at *9.

The director of DYFS did not  accept  the recommendation and entered a decision upholding the finding of neglect. The appellate court reversed the DYFS determination, finding as a matter of law, the mother’s conduct did not meet the definition of gross abuse, albeit her actions were “arguably inattentive or even negligent and did not meet the requisite standard of willful and wanton misconduct.” Id. at *14-15.

The appellate court noted:

A parent fails to exercise a minimum degree of care when she is “aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to the child.” (cituation omitted). Id. at *16.

The court went on to criticize the DYFS Field Operations Casework Policy and Procedure Manual, which defines inadequate supervision of a child in a manner  contrary to the standard set forth in G.S. Id. at *16-17.

      Comment: The decision also questioned, but did not rule upon, the property of DYFS listing a party in the central registry while the issue of parental neglect was actively under appeal.



P.L. 2009, c. 43 (A-2681)

Prohibits Alimony and Awards Concerning Equitable Distribution to Persons Who Commit Certain Crimes; Eliminates Inheritance Rights for Parents Who Abuse or Abandon Children.

Link: www.njleg.state.nj.us/2008/Bills/PL09/43_.PDF

This law amends N.J.S.A. 2A:34-23 and -23.1 by providing that a person shall not be rewarded for criminal activity against a spouse.


Amendments to Appendices IX-A, IX-B and IX-H- March 24,2009

Child Support Guidelines

Link: www.judiciary.state.nj.us/notices/2009/n090402b.pdf

Effective March 24, 2009, the Supreme Court adopted revisions to Appendix IX-A (Considerations in the Use of Child Support Guidelines), Appendix IX-B (Use of the Child Support Guidelines) and Appendix IX-H (Combined Tax Withholding Tables for Use with the [Child] Support Guidelines). Specifically, the following items were updated:

.Self-support reserve ($219)

.Shared parenting primary house hold income thresholds table

. Social Security tax withholding (on first $106,800 of gross earnings and maximum withholding of  $6,622)

.Withholding tax exemptions

. Combined tax withholding table (updated on April 28, 2009)

Further Revised Rules Appendix IX-H-April 28, 2009

Child Support Guidelines

Link: www.judiciary.state.nj.us/notices/2009/n090527b.pdf

The American Recovery and Reinvestment Act of 2009 (ARRA), among its many provisions, amended the federal tax withholding tables effective April 1, 2009, resulting in higher net pay for certain wage earners, that is, withholding less from those individuals. The revised Rules Appendix IX-H  reflects those changes in the tax withholding amounts.

Amendment to R. 1:40-4(f)-September 1, 2009

Mediation-General Rules Mediator Disclosure of Conflict of Interest

Link: www.judiciart.state.nj.us/notices/2009/omnibus.pdf

This amendment sets forth the procedure when a conflict of interest exist in an economic mediation.

Amendment to R. 1:40-5(b) September 1, 2009

Mediation in Family Part Matters –Mediation of Economic Aspects of Divorce

Link: www.judiciary.state.nj.us/notices/2009/omnibus.pdf

This amendment establishers procedures for mediation of economic  aspects of family law matters.

Amendment to R. 1:40-12(a)(6) and -12(b)-September 1, 2009

Mediators and Arbitrators in Court-Annexed Programs

Link: www.judiciary.state.nj.us/notices/2009/omnibus.pdf

This amendment provides for the requirements to be a family part economic mediator, including the completion of mandatory mediation training.

Amendment to R. 5:2-1- September 1, 2009

Venue, Where Laid

Link: www.judiciary.state.nj.us/notices/2009/omnibus.pdf

This amendment was adopted to be consist with the Uniform Interstate Family Support Act (UIFSA), N.J.S.A 2A:4-30.65, et seq., and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), N.J.S.A. 2A:34-53, et seq.

Amendment to R. 5:3-5(c)-September 1, 2009

Attorney Fees and Retainer Agreements in Civil Family Actions; Withdrawal-Award of Attorney Fees

Link: www.judiciary.state.nj.us/notices/2009/omnibus.pdf

This rules sets forth factors that the court should consider in awarding attorney fees. Specifically, factor 3 was amended to permit the court to consider the reasonableness and good faith of the positions advanced by the parties “both during and prior to trial.”

Amendment to R. 5:4-2(g)-September 1, 2009

Complaint-Confidential Litigant Information Sheet

Link: www.judiciary.state.nj.us/notices/2009/omnibus.pdf

This amendment clarifies that a copy of the confidential litigant information sheet shall not be served upon any opposing party.

Amendment to R. 5:4-2(h)-September 1,2009

Complaint-Affidavit or Certification of Notification of Complementary Dispute Resolution Alternatives

Link: www.judiciary.state.nj.us/notices/2009/omnibus.pdf

This amendment promulgates new Appendices XXVII-A and –B, certifications of  notifications of complementary dispute resolution alternatives.

Amendment to R. 5:5-2(f)- September 1, 2009

Family Part Case Information Statement- Confidentiality

Link: www.judiciary.state.nj.us/notices/2009/omnibus.pdf

This amendment conforms the family part case information statement (CIS), Appendix V of the court rules, to new R. 1:38,Public Access to Court Records and Administrative Records.

Amendment to R. 5:5-4(a)- September 1, 2009

Motions in Family Actions-Motions

Link: www.judiciary.state.nj.us/notices/2009/omnibus.pdf

This amendment clarifies the responsibilities of the parties in regard to filing case information statements with the court. It requires the movant to file the prior CIS sought to be modified and a current CIS. The opposition must file prior CISs, and if the court finds that the party seeking alimony or child support relief has demonstrated prima facie that there was a substantial change of circumstances, then the court will order the other party to file a current CIS.

Amendment to R. 5:5-4(g)- September 1, 2009

Motions in Family Actions- Exhibits

Link: www.judiciary.state.nj.us/notices/2009/omnibus.pdf

This amendment requires parties to separate the exhibits in a motion using tabbed dividers or some other means.

Amendment to R.56B-September 1, 2009

Cost-of-Living Adjustments for Child Support Orders

Link: www.judiciary.state.nj.us/notices2009omnibus.pdf

This amendment expands the application of the cost of living adjustment (COLA) for child support to all child support orders entered before September 1, 1998.

Amendment to R. 5:25-3- September 1, 2009

Child Support Hearing Officers

Link: www.judiciary.state.nj.usnotices2009omn/ibus.pdf/

This amendment clarifies the procedure for appealing a child support hearing officer (CSHO) recommendation. If a party does not request a de novo appeal to the trial judge on the day of the CSHO hearing, then the party must file a motion to seek relief.

Amendment to Rules Appendix V-September 1, 2009

Family Part Case Information Statement

Link: www.judiciary.state.nj.usnotices2009omnibus.pdf

A certification was added to the family part CIS regarding the redaction of confidential personal identifiers (CPIs) from other documents submitted to the court. CPIs should not be redacted from the CIS or its attachments.

Amendments to Appendices IX-A and IX-B- September 1, 2009

Child Support Guidelines

Link: www.judiciary.state.nj.usnotices2009omnibus.pdf

The child support guidelines may be unfairly applied when a child receives government benefits based on a custodial parent’s disability. A note was added to each of the following sections of Appendix IX specifying that the court may deviate from the child support guidelines in such situation: Appendix IX-A, $10.c,Appendix IX-B, sole parenting instructions line 12 and Appendix IX-B, shared parenting instructions line 11.

In Appendix IX-A, section 12, the New Jersey minimum wage was increased to$7.25 to conform to the federal minimum wage.

Amendments to Appendix XXIV- September 1, 2009

Confidential Litigant Information Sheet (R. 5:4-2(g))

Link: www.judiciary.state.nj.usnotices2009/omnibus.pdf

The party’s mother’s maiden name and address were deleted and other minor format improvements were adopted.

Amendments to Appendix XXVI- September 1, 2009

Guidelines for the Compensation of Mediators Serving in the Civil and Family Economic Mediation Programs

Link: www.judiciary.state.nj.us/notices/2009/omnibus.pdf

Appendix XXVI now specifically applies to family part economic mediation.

Adoption of Appendices XXVII-A and XXVII-B- September 1, 2009

Certification of Notification of Complementary Dispute Resolution Alternatives

Link: www.judiciary.state.nj.us/notices/2009/omnibus.pdf

These certifications were adopted pursuant to R. 5:4-2.


Directive # 15-08 [Supersedes Directive #18-06]

Use of Warrants and Incarceration in the Enforcement of Child

Support Orders- November 17, 2008

Link: www.judiciary.state.nj.us/directive/2008/dir_15_08.pdf

This directive establishes an “order for Relief Litigant, Enforcement of Litigant’s Rights (Form: CN 11213),” by combining the “Order for Coercive Incarceration” and the “Order for Relief to Litigant” from the prior directives. This new order replaces the two existing ones and is to be used at expedited enforcement hearings before a judge.

Assignment Judge Memorandum

USPS Electronic Return Receipt Authorized as Proof of Service of Process for NJKIDS-Generated Complaints-Supreme Court Rule Relaxation Order-June 1, 2009


This memorandum distributes the Supreme Court’s April 28, 2009, order that relaxes and supplements R. 5:4-4(b). The relaxation order permits a United States Postal Service (USPS) electronic return receipt to have the same effect for proof of service of process as a hard copy return receipt card(also known as a green card). The relaxation order applies specifically to certified mail generated by NJKIDS, New Jersey’s new automated child support enforcement system, for paternity and child support matters.

Assignment Judge Memorandum

Child Support Hearing Officer Program Manual –June 10, 2009


This memorandum promulgates the Child Support Hearing Officer Program Manual, which is a compilation of statutes, court rules, court polices and standards.

Assignment Judge Memorandum

Procedure When a Child Support Warrant Issued by One County is Discharged in Another County- June 8, 2009


This memorandum documents a standard procedure that streamlines the communications protocol for rapidly alerting affected county family divisions, probation divisions and sheriff’s offices when the court discharges a child support warrant.

Assignment Judge Memorandum

Rule Relaxation Orders Relating to NJKiDS- (1) References to Child Support Automated Systems;

(2)Electronic and Digital Signatures-January 20, 2009


This memorandum distributes two Supreme Court orders, both of which were effective December 2, 2008, which relax and supplement various court rules to assist in the implementation of NJKiDS. Importantly, one of the orders relaxes court rules to permit electronic and digital signatures on pleadings and court orders.



Sweeney v. Sweeney, 405 N.J. Super. 586 (App. Div. 2009)[Judge Coleman] A-1182-07T2

Post-Judgment Arbitration of Investment Accounts

The appellate court confirmed that while the entire controversy doctrine applied to family matters, a general release from the plaintiff wife to the defendant-husband in their property settlement agreement (PSA) did not bar the plaintiff from pursuing her claims as to mismanagement of her security funds as against the defendant or her stock broker.

The parties were married in 1991. The wife, in 1999, sold assets she had purchased prior to 1991, which she maintained as separate property. She turned over the sale proceeds to RBC, a stock broker, who managed the accounts pursuant to a brokerage agreement which provided that in the event of any “controversies” as to the management of the account the parties agreed to arbitrate their dispute. The husband worked for RBC as a broker.

The parties secured a divorce in 2004 and entered into a PSA, which provided, in a “standard mutual release clause,” that the parties “give up any and all claims that each might have against the other by reason of any matter.”

The plaintiff field a claim, in 2006, as against RBC for alleged mismanagement of her accounts.

The appellate court found:

  1. The trial court properly recognized that it must decide whether the wife’s claims were subject to arbitration pursuant to the federal Arbitration Act, Id. At 592;
  2. That the wife’s claims were not barred by the entire controversy doctrine since no issues concerning the mismanagement of her accounts were raised by either party in the divorce action. In addition, “[e]ven though [the defendant] personally managed the accounts as an employee of RBC, the claims asserted by [the plaintiff] arise under the [agreement] for arbitration,” Id. At 594; and
  3. The release provided to the husband related only to claims resulting from their marital relationship from their marital relationship and rights of inheritance. The release was not intended to benefit RBC. Id. At 597.

Comment: Arbitration is private adjudication. The parties may control, by contract, the scope and terms of the arbitration process.

Houseman v. Dance, 405 N.J. Super. 538 (App. Div. 2009)[Judge Grall] A-2415-07T2

Determining Ownership of Jointly Owned Pet

Specific performance of an oral agreement may be sought declaring ownership of a pet according to this Appellate Division.

The plaintiff sought to enforce an alleged oral agreement for possession and ownership of the parties’ pedigree dog. The dog was jointly purchased. When the relationship ended, they agreed to share equally in the proceeds of the sale of their house, with the plaintiff retaining possession of the dog. During separation, the plaintiff continued to allow the dog to visit the defendant, and left the dog with the defendant while she vacationed. Upon her return, the defendant refused to return the dog. The plaintiff filed a complaint. The defendant retained possession of the dog during the litigation and trial. The trial court found an oral agreement existed under which the plaintiff was to obtain possession and ownership. Despite this finding, the trial court concluded pets are personal property, lacking the unique value essential to an award of specific performance. The plaintiff was awarded the stipulated value of the dog in the amount of $1,500 and the defendant retained the dog. The appellate court reversed and remanded.

The appellate panel found specific performance is an appropriate remedy for a breach of an enforceable agreement concerning possession of property such as “heirlooms, family treasures and works of art that induce a strong sentimental attachment.” Restatement (Second) of Contracts $ 360 comment b (1981). Where “money damages cannot compensate the injured party for the special subjective benefits he or she derives from possession,” 405 N.J. Super. At 543, the appellate court reasoned “possession of property is the only adequate remedy for tortuous acquisition or wrongful detention of property.” Id.

A two-prong test was established to determine disputes over jointly held property with subjective value. The trial court must first “[deem] division by forced sale [to be] an inappropriate or inadequate remedy given the nature of the property.” Id. At 545. Then, a determination must be made “whether the assertion of a special interest in possession is sincere and grounded in ‘facts and circumstances which endow the chattel with a special…value’ or based upon a sentiment assumed for the purpose of litigation out of greed, or other sentiment or motive similarly unworthy of protection in a court of equity.” (Citing Burr v. Bloomsburg, 101 N.J. Eq.615, 626(Ch.1927)) Id.

Comment: The appellate court declined to adopt a rule requiring consideration of the best interest of the pet, reasoning it was “less confident that there are judicially discoverable and manageable standards from resolving questions of possession from the perspective of a pet….” Id.

Rogers v. Gordon, 404 N.J. Super. 213 (App. Div. 2008) [Judge Parker] A-1531-07T2

Prenuptial Agreement; Whether Unconscionable and Unenforceable

Alimony may be sought, upon demonstration of substantially changed circumstances even if the remainder of the pre-nuptial agreement remains in effect, according to this appellate decision.

The parties signed a prenuptial agreement in 1981, which was reaffirmed in 1987. The likelihood the plaintiff would receive a substantial inheritance in the future was clearly referenced. At the time of the marriage, the plaintiff was a Princeton graduate. The defendant was a high school graduate employed by the U.S. Postal Service. During the marriage, the plaintiff obtained an MBA from the Wharton Business School. The defendant obtained an associate science degree in physics. In 1990, the defendant left his position at the post office and began working for the plaintiff’s father’s company, which she later purchased. The defendant became plant supervisor, earning approximately $63,000 per year. When the plaintiff field for divorce, the defendant was demoted to a machine operator at an hourly wage sufficient to maintain his prior salary. The defendant asserted the prenuptial agreement was unconscionable due to the substantial change in circumstances since the parties’ marriage. The trial court determined “the proverbial snowball [had] a greater chance of surviving the flames of Hades,” Id. At 222. Than the defendant had of retaining his position at the plaintiff’s company post divorce. The defendant’s earning capacity would be significantly lower if he were required to find alternate employment. Based on the trial court’s credibility assessments at plenary hearing and a review of the case law prior to the Pre-Marital Agreement Act adopted in 1988, the entire prenuptial agreement was found to be unconscionable and unenforceable. The parties cross moved for leave to file interlocutory appeals from the denial of the plaintiff’s motion for reconsideration. The appellate court granted leave and modified the orders.


While the appellate court agreed that enforcement of the agreement would be unconscionable under pre-act case law, it declined to set aside the entire agreement as unenforceable. The agreement  regarding the defendant’s share of equitable distribution of assets acquired during the marriage was not set aside. The panel reasoned, as the defendant was still employed by the plaintiff’s company, he had not demonstrated a substantial change in circumstances. The appellate panel held that the trial court could not determine the defendant’s loss of income prospectively. The defendant was permitted to bring an application to modify the agreement to the extent he may be entitled to an alimony award “if his circumstances are substantially altered.” Id. At  227.


Comment: The pre-act case law supported the trial court’s conclusion that the agreement was unconscionable. The appellate court disagreed that the entire agreement was unenforceable.

Donnelly v. Donnelly, 405 N.J. Super. 117 (App. Div. 2009) [Judge Fisher] A- 2389-07T3

Analysis of Changed Circumstances

Modification of alimony and child support requires demonstration that alleged circumstances are more than temporary, according to this appellate decision

The PSA provided for the defendant to pay permanent alimony in the amount of $1,000 per week and child support in the amount of $350 per week for the parties ‘three children. The basis of the agreement was imputed income to the wife in the amount of $20.000 per year and the husband’s average income for his law practice in the amount of $185,000 per year. An expert determined the husband’s income by averaging the five years prior to the divorce in 2004. The defendant filed a Lapis motion to reduce his support obligations in 2005. He alleged income from his law practice was dwindling and the expert improperly failed to account for the steady decline in the defendant’s income prior to the parties’ divorce.

The trial court permitted the parties to engage in discovery, conducted a multi-day plenary hearing, and issued a written decision  denying the defendant’s motion for failing to show a substantial change in circumstances, citing to Lapis v. Lapis, 83 N.J. 139 (1980), and Larbig, 384 N.J. 139 (1980), and Larbing v. Larbing, 384 N.J. Super. 17 (App. Div. 2006). The defendant did not appeal this decision. He then fields a second Lapis motion for reduction only nine months later, again alleging a decline in his law practice. The trial court denied  the defendant’s motion, noting its prior decision and finding the defendant had made no effort to modify his lifestyle despite his alleged decreased income. The trial court determined the defendant’s decision to take on considerable debt and live a lavish lifestyle with his new wife and child was “inconsistent with the way his law practice was allegedly trending.” Id. At 129.

The appellate court affirmed.

The appellate panel held that the trial court did not abuse its discretion in concluding the defendant returned to court “fair too soon to obtain relief.” While acknowledging that there is no bright line rule, the appellate panel agreed that the defendant had failed to demonstrate his alleged change in circumstances was anything but temporary. The appellate court found the trial court properly considered the parties’ earnings as well as how they expanded their income and utilized their assets. As observed in Larbig, “what constitutes a temporary change in income should be viewed more expansively when urged by a self-employed obligor [who is] in a better position to present an unrealistic picture of his or her actual income than aW-2 earner.” Id. At 128.


Comment: Determining whether alleged change in circumstances is anything more than temporary requires “not only an examination of the parties’ earnings but also how they have expended their income and utilize their assets.” Id. At 130.

Hadfield v. The Prudential Insurance Co. and Lillo, 408 N.J. Super. 48 (App. Div. 2009)[Judge Wefing , P.J.A.D.] A- 5140-07T1

Life Insurance Policy; Ex-husband Dies Before Removing the Ex-wife as Beneficiary

A former wife is not entitled to the proceeds of a life insurance policy where her former husband dies prior to removing her as the beneficiary of the policy pursuant to N.J.S.A. 3B:3-14

The deceased was a former detective and member of the police and Fireman’s Retirement System (PFRS). He was insured under a group life insurance policy issued by defendant Prudential Insurance Company naming his  spouse as the beneficiary when the parties married. His sister was named as contingent beneficiary. The parties later divorced. The decedent died without having  changed the beneficiary designation under his life insurance policy. His former wife had remarried, but claimed she was entitled to the proceeds. The trial court entered summary judgment in favor of the decedent’s parents, and denied the former wife’s motion for summary judgment. The appellate court affirmed.

The appellate court determined that summary judgment was correctly entered in favor of the plaintiffs pursuant to N.J.S.A 3B:3-14.An amendment to N.J.S.A. 3B:3-14 in 2005 provides, “In the event of a divorce or annulment, provides of a governing instrument are given effect as if the former spouse…disclaimed all provisions revoked by this section…”The appellate panel noted that N.J.S.A. 3B:3-14 does not contain any limiting language or exclude PFRS policies in its definition of “governing instrument.”

The appellate court found that the amended N.J.S.A. 3B:2-14 could be applied retroactively despite the fact that the parties’ divorce predated the effective date of the statute. Based on support from other jurisdictions, the appellate panel held that the appellant had no vested right in the life insurance policy.

Comment: Retroactive application of the statute was not improper where the former spouse had no vested right to the life insurance policy.

Perk v. Prots, 409 N.J. Super. 358 (Ch. Div. 2008) [Judge Mega] FM-20-001186-04

Uifsa Bars Forum Selection as to Alimony

Forum selection clauses that select an alternate state for purposes of adjudicating future spousal support initially established in New Jersey are unenforceable pursuant to the Uniform Interstate Family Support Act (UIFSA), N.J.S.A 2A:4 30.65 through 30.123. The public policy embodied in UIFSA confers continuing exclusive jurisdiction to the court issuing the initial spousal support order, and therefore, parties may not choose or contract an alternate forum with regard to future spousal support issues.

The parties were divorced in New Jersey. Their agreement (PSA) provided that Ohio would exercise all future jurisdictions with regard to all post-judgment issues. The husband filed an application in Ohio to modify spousal support and child support. After an Ohio court rejected jurisdiction, the plaintiff former husband brought a motion in New Jersey to modify that provision of the parties’ PSA that mandated that Ohio had exclusive jurisdiction over all future spousal support matters. At the time of  divorce, the defendant former wife had already relocated from New Jersey to Ohio with the parties’ two minor children, and the plaintiff had relocated from New Jersey to New York. The PSA, which was incorporated into a final judgment of divorce entered in New Jersey, provided that Ohio was to have “jurisdiction in his matter for all purpose.”Id. at 363. Accordingly, the plaintiff requested modification of support in Ohio. Although the Ohio court accepted jurisdiction of the parties’ child support matter, the court rejected jurisdiction to modify spousal support on grounds that New Jersey retained exclusive jurisdiction of the spousal support matter notwithstanding the language in the parties’ PSA. The plaintiff then brought his application to New Jersey.

The New Jersey court held that, pursuant to the public policy embodied in UIFSA, the forum selection clause in the parties’ PSA could not be enforced with regard to spousal support. UIFSA permits forum selection with regard to child support, but does not provide a similar provision for spousal support. N.J.S.A. 2A:4-30.72.f. There can be no forum selection of spousal support and Jurisdiction must remain with the court who initially fixed the order since:

A jurisdiction that establishes a spousal support order retains exclusive jurisdiction for the life of that order. Not only does one state retaining exclusive jurisdiction for the life of the order provide for consistency, but it also alleviates potential confusion for the parties, deters forum jumping, and avoids the parties falling victim to a black-hole where no court will take jurisdiction. 409 N.J. Super. At 367.

Comment: Although not binding precedent, this decision is critical as it highlights UIFSA’s inconsistent treatment of forum selection with regard to child and spousal support. Unfortunately, UIFSA provides no justification for such inconsistent treatment since both common sense and ease of practice would appear to favor consistency.

Child Support

  1. l. v. W.S., 406 N.J. Super. 484 ( App. Div. 2009) [Judge Skillman, P.J.A.D.] A-5782-06T2

Jurisdiction; Paternity and Child Support Under the Parentage Act

A New Jersey court had jurisdiction over a defendant to determine paternity and fix child support since the defendant’s act of intercourse with the biological mother in New Jersey, along with the defendant’s substantial contact with the mother in New Jersey, denoted his submission to jurisdiction in New Jersey and does not offend traditional notions of fair play and substantial justice.

The plaintiff became pregnant in 1986 and gave birth to a child with cerebral palsy in 1987. The defendant, who was a resident of Pennsylvania during 1986 and 1987, denied paternity, but conceded that he was engaged to and had intercourse with the plaintiff in New Jersey around the time of her pregnancy and that he initially paid the plaintiff $18,000 toward child care expenses. The defendant, who was served with a complaint at his current residence in North Carolina, moved several times to dismiss the action for lack of jurisdiction. The trial court denied the applications and the defendant appealed.

The appellate court noted that the Parentage Act directs that a person who has intercourse in this state submits to jurisdiction pursuant to the act with regard to any child that may have been conceived. The appellate court also noted that the Uniform Interstate Family Support Act (UIFSA) similarly provides jurisdiction based on the act of intercourse. Determining whether such provisions violate due process rights, the appellate court instructed that where a cause of action directly relates to a defendant’s conduct within New Jersey, such jurisdiction is “specific” as opposed to “general.” When specific jurisdiction is at issue, “an isolated act may be sufficient to subject defendant to the jurisdiction of the forum.” Id. At 492 (citation omitted). Finding the existence of specific jurisdiction, the appellate court explained:

[D]efendant was aware during the period of his engagement to plaintiff that she was a New Jersey resident, and defendant himself spent a substantial amount of time in New Jersey. These substantial contacts with New Jersey establish that defendant “purposefully avail[ed] [himself] of the privilege of [engaging in sexual] activities within [New Jersey]” and that “he should reasonably [have] anticipate[d] being hauled into court [in New Jersey]” to respond to a claim for a declaration of paternity and support if those activities resulted  in the conception of a child. (citationsomittes). Id. At 492-93.

Lastly, the appellate court determined that it was error for the trial court to appoint the plaintiff guardian ad item for the child since the Parentage Act prohibits appointment of a parent as a guardian ad item.

          Comment: Despite the language of UIFSA and the Parentage Act directing that a single act of intercourse in a state is sufficient to give rise to that state’s jurisdiction, to protect a defendant’s due process rights, the appellate courts of New Jersey will consider the existence of other contacts with New Jersey in addition to the act of intercourse when justifying a trial court’s exercise of jurisdiction.

Martin v. Martin, 410 N.J. Super. 1 (Ch. Div. 2009) [Judge Haas] FM-03-1172-03

Motion for Increase in Child Support Requires More Than the Passage of Time

Child support orders are not entitled to an automatic three-year review according to this trial court decision holding that Doring  v. Doring, 285 N.J. Super.369 (Ch. Div. 1995), is no longer applicable.

The parties divorced in 2004. They agreed that so long as they exercised equal parenting time that neither would pay child support to the other. When the father began to exercise less parenting time, the mother secured a Title IV-D support order in 2005.

The mother filed a motion to have the court increase the 2005 child support order because more than three years had passed since it was entered. The mother did not “demonstrate that specific and substantial changed circumstances have occurred since the time of the governing order which would warrant a modification of support,” 410 N.J. Super. At 2, pursuant to Lapis v. Lapis, 83 N.J. 139 (1980).

The trial court decided that, although case law and statutory law prior to 1998 supported the automatic review of all child support orders without a Lepis analysis, after the adoption of R. 5:6B, which establishes a cost of living adjustment (COLA), that standard was no longer applicable and the Doring analysis was no longer appropriate.

The trial court reasoned that the real area of misunderstanding  with child support modification lies with the so called right of three-year review. Child support cannot be reviewed “as of right” every three years, but only in accordance with Lapis.

Comment: A Title IV-D child support order is entitled to a COLA adjustment only; three is no longer any automatic three-year review.

Centanni v. Centanni, 408 N.J. Super. 78 (Ch. Div. 2008) [Judge McGann] FM-13-1723-03A

Amending Child Support; Whether Retroactive to Child’s Date of Death

Any modification of child support should be retroactive to the date of the child’/s death and not as of the date when the motion was filed, according to this family part decision.

The parties were divorced on 2004. Child support was provided for the two children born of the marriage; Tragically, one of the children was killed in an automobile accident on October 6, 2007. The plaintiff a motion to reduce his child support obligation.

The trial court reviewed Mahoney v. Pennell, 285 N.J. Super. 638, 643 (App. Div. 1995), which held that, despite N.J.S.A. 2A:17-56.23a, which provides that no payment of child support may be retroactively modified, child support may be terminated upon the emancipation of a child. The court reasoned, “Where there is no longer a duty of support by virtue of a judicial declaration of emancipation, no child support can become due.” 408 N.J. Super. At 81 (citing Mahoney, 285 N.J. Super. at 643).

The trial court found that the same reasoning applied to the death of a child, finding that “[u]pon the tragic death of the parties’ daughter, the duty to pay support for her ceased, Nothing within the four corners of the statute evinces an intent on the part of the legislature to bar retroactive modification upon such an occurrence.” Id. At 82.

The judge noted that the father had “thoughtfully, and in good faith, allowed an appropriate period of grieving and healing to take place,” Id., before making his application. To not grant relief to the father to the date of child’s death would not be fair to the father.

Comment: While as a general rule child support cannot be modified retroactively, child support may be modified upon the emancipation or death of a child.

Wunsch- Deffler v. Deffler,406 N.J. Super. 505 (Ch. Div. 2009) [Judge Haas] FM-03-214-07

Controlled Expenses in a Shared Parenting Arrangement

The trial court established a three-step  process  to adjust the obligor parent’s child support obligation where the parties equally share parenting time with respect to controlled expenses.

The parties were divorced in 2007. Two children were born of the marriage. The parties agreed to share parenting time equally. The parties also agreed that upon emancipation of a child, either party could apply for child support. One child was emancipated in 2008. The plaintiff filed a motion for child support.

Rule 5:6A, Appendix IX-A, Para 14(g), provides that child support consists of three components: fixed expenses, variable expenses and controlled expenses are pro-rated based on the time a child spends with a parent. Controlled expenses, representing 25 percent of the child support amount, are based on the assumption that they are incurred only by the parent of primary residence and are apportioned based on their income shares, not in relation to time spent with the children.

The appellate court in Benisch v. Benisch ,347 N.J. Super. 393 (App. Div. 2002), found that a mechanical application of the child support guidelines would be unfair because the payor was effectively paying these costs twice: once as child support to the payee and again when these costs were incurred during the payers’ parenting time. The trial court developed a three-step process to determine the appropriate adjustment.

In this matter, the trial court implemented Benisch by creating a three-step procedure to adjust the paying parent’s child support obligation to account for the fact that both parties are responsible for paying the child’s “controlled expenses” during their parenting time. This procedure will “back out” the 25 percent in “assumed” controlled expenses from the paying parent’s child support obligation. The first step is to multiply the basic child support amount determined in the 9 of the child support guidelines shared parenting worksheet by the payers’ income share. Second, this figure should be multiplied by 25 percent, which represents the controlled expenses assumed by the guidelines. Third, the product of this calculation is then subtracted from the paying parent’s “Adjusted Basic CS Amount,” as reflected on line 15 of the worksheet. The result reached is the payers’ child support obligation and takes into account that both parties, and not just the party receiving child support, pay controlled expenses for the child during the equally shared parenting time.

Comment: Consistent with Benisch, the court found that it would be unfair to have the payor party pay child support without an adjustment for controlled expenses. The trial court formulated a method to make the required adjustment.

Kayv. Kay,405 N.J. Super. 278 (App. Div. 2009) [Judge Grall] A- 1594-07T3 (cert. granted on 422009 and argued on 10/13/09; A-93-08)

Equitable Claims Permitted Against the Marital Estate by Estate of a Decedent Spouse

The estate of a deceased spouse who dies while his or her divorce is pending has standing to seek equitable relief from the matrimonial court sounding in constructive trust, resulting trust, quasi-contract or unjust enrichment.

Despite the existence of an order prohibiting the dissipation of assets, upon the decedent’s death, the wife unsuccessfully attempted to withdraw the proceeds of the marital home held in escrow, submitted a dismissal of the divorce that was not executed by decedent’s counsel, and transferred the decedent’s UBS account into her name. The decedent’s estate brought an action in the decedent’s pending divorce proceeding seeking a constructive trust to prevent unjust enrichment to the decedent’s wife and daughter if they were to retain marital property that belonged to the decedent. The trial court rejected the estate’s request to substitute for the defendant, dismissed the divorce action, and stayed its order for three weeks to permit the estate to file “appropriate” pleadings in the general equity part. Id. At 281. The estate appealed.

On appeal, the estate argued that the trial court erred by relying on Kruzdlo v. Kruzdlo, 251 N.J. Super. 70, 73 (Ch. Div. 1990), wherein the court interpreted Carr v. Carr, 120 N.j. 336 (1990), as barring a decedent’s estate from “asser[ing] equitable claims against the marital  estate sounding in constructive trust, resulting trust, quasi-contract or unjust enrichment.” 405 N.J. Super. At 281. Concurring with the estate, the appellate court distinguished the current case from Carr, emphasizing that “the estate seeks to invoke the court’s equitable jurisdiction on the ground that the surviving spouse will be unjustly enriched if she retains all of the assets held jointly with the decedent as well as those she is alleged to have deceptively titled in her own name and her daughter’s name.” Id. At 283. The appellate court further noted:

While Carr does not expressly authorize imposition of a constructive trust in favor of the estate of a decedent spouse to avoid unjust enrichment of the surviving spouse, the implication of Carr’s holding… is that an estate justly retains marital property beneficially belonging to the decedent spouse….

[W]e hold that when the estate of a spouse who died while an action for divorce is pending presents  a claim for equitable relief related to marital property, the court may not refuse to consider the equities arising from the facts of that case solely on the ground that the estate may not asset equitable claims against the marital estate….

Id. At 285-87 (citation omitted).

Finding that the trial court remanded to the trial court for a determination of whether the matter should be transferred to the civil part or heard in the family part.

Comment: Kruzdlo is no longer good law. Kay is legal precedent that confirms the estate of a deceased party in a divorce has standing to seek equitable relief in the underlying divorce proceeding sounding in constructive trust, resulting trust, quasi-contract, or unjust enrichment.

Custody/Parenting Time Fawzy v, Fawzy, 199 N.J. 456 (2009) [Justice Long] A-38/39-08

Agreement of Parties to Address Child Custody and Parenting Time in Binding Arbitration; Standard of Review

The Supreme Court unanimously held that parents have a constitutionally protected right to chose the forum in which to resolve the disputes over child custody and parenting time, including arbitration.

Mrs. Fawzy filed a complaint for a divorce in 2005. An attorney was appointed guardian ad item (GAL) for the two children born of the marriage. On the date of the trial, counsel advised the trial court that the parties had agreed to have the GAL arbitrate all issues relating to child custody and parenting time. An agreement to arbitrate was placed on the record.

The GAL commenced the arbitration. Mr. Fawzy field an order to show cause seeking to restrain the arbitrator from issuing a custody or parenting time award arguing that, as a matter of law, those issues could not be arbitrated and that he was pressured into agreeing to arbitrate. The trial court denied the application.

The Supreme Court held that parents have a fundamental liberty interest to make decisions relating to their children. “[The] right of parents to make decisions regarding custody, parenting time, health, education, and other child-welfare issues…does not evaporate when an intact marriage breaks down….It is only when the parents cannot agree that the court becomes the default decision aker.” Id. At 476.

Parental autonomy includes the freedom to decide wrongly. Under the parents’ patriae doctrine, however, the state has an obligation to inter venue to prevent harm to the child.

The Court found that issues as to custody and parenting time may be submitted to arbitration pursuant to N.J.S.A 2A:23B-1, et seq., subject to the following safeguards:  1)  the agreement to arbitrate must be in writing or recorded in accordance with N.J.S.A. 2A:23B-1 setting forth the issues to be subject to arbitration;  2)   the arbitration proceeding must be recorded verbatim;  3)   all evidence must be kept; 4)   the arbitration award is subject to review pursuant to the Arbitration Act “unless there is a claim of adverse impact or harm to the child,” 199 N.J. at 478, such as a parent’s serious substance abuse; 5)   the  arbitrator shall state in writing or otherwise record his finding of fact and conclusions of law with a focus on the best interest standard.

The Supreme Court also found that R. 5:8B (a) barred the GAL from acting as the arbitrator.

Comment: Subject to the procedural modifications set forth by the Supreme Court, parents may submit their custody and parenting time issues to binding arbitration.

  1. A v. A.T., 404 N.J. Super. 132 (App. Div. 2008) [Judge Sapp Peterson] A-3003-07T4

Enforcement of Foreign Custody Decree Contingent on New Jersey’s Best Interest Standard

The trial court properly refused to apply the “first-filed doctrine” to enforce a Greek order of temporary custody, despite the fact that Greece had initial jurisdiction, since:  1) enforcement would contravene the public policy of this State to protect the best interest of the children, and 2) the Greek court’s findings fell woefully short of the statutory facts New Jersey courts are required to consider.

In 1991, the parties married in New Jersey and moved to Greece in 1995. In July of 2003, the plaintiff and the parties’ two sons left for the United States. The defendant and the parties’ daughter remained in Greece. On April 22, 2004, the Greek civil court awarded the defendant temporary custody of the children after conducting a hearing where neither party appeared, but were both allegedly represented by a designated representative. On May 10, 2004, the defendant filed a divorce complaint in Greece. On August 14, 2006, the plaintiff field a divorce complaint in New Jersey and a judgment of divorce was entered in New Jersey. The defendant then filed a motion to register the Greek temporary custody order in New Jersey, but her Greek proceedings were so lacking in factual findings that the New Jersey court was not bound to defer to the decision. After a hearing, the New Jersey court awarded the plaintiff custody of the parties’ youngest son (the parties had already agreed on custody of the two older children).

On appeal, the appellate court instructed that “New Jersey courts are to give full faith and credit to child custody orders issued from foreign nations except when ‘the child custody law of a foreign country violates fundamental principles of human rights or does not base custody decisions on evaluation of the best interests of the child’.” Id. at 143 (quoting N.J.S.A. 2A:34-57.a.). New Jersey had jurisdiction to make an initial custody determination since the child at issue had been living with the plaintiff in New Jersey for three years. However, at the time the defendant sought temporary custody years prior, Greece also had jurisdiction since the children had lived in Greece for the past eight years. New Jersey adheres to the “first-filed doctrine,” a rule that the court which first acquires jurisdiction has precedence. However, the doctrine is flexible and will not be applied if application “would contravene the public or judicial policy of the forum state.” Id. at 144-45.

Reviewing the Greek proceeding that led to the temporary custody award, the appellate court noted that the facts relied upon by the Greek court, which focused primarily on ensuring the children’s ongoing Greek schooling, fell “woefully short” of a best interests analysis, Id. at 146. The Greek record was void of any references as to the evidence submitted and the court’s evaluation of such evidence. Finding enforcement of the resulting order to be against public policy, the appellate court confirmed that the trial court “properly conclude[d]  [that] no deference should be accorded to the Greek custody determination.” Id. at 146.

      Comment: Even if another state had jurisdiction to enter an initial custody order, that order will not be enforced upon a demonstration that enforcement of the order is against public policy or the order was not entered based on an evaluation of the best interest of the child.



  1. L 2009, c.28 (A-1563)

Amends Stalking Law to Broaden Protection for Victims

Link: www.njleg.state.nj.us/2008/Bills/PL09/28.PDF

This law expands the definition of “course of conduct” to include “directly, indirectly, or through third parties, by any action, method, device, or means, following, monitoring, observing, surveilling, threatening, or communicating to or about, a person, or interfering with a person’s property; repeatedly committing harassment against a person.” Stalking was redefined to include conduct that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress.




Directive # 01-09

Family-Juvenile Delinquency and Domestic Violence Appeal Rights Forms and Colloquies-April 13, 2009

Link: www.judiciary.state.nj.us/directive/2009/dir_01_09.pdf

This directive promulgates domestic violence (DV) contempt and juvenile delinquency appeal rights forms and colloquies to advise DV contempt defendants and juveniles of their right to appeal.

Directive # 03-09

C0-occurring Child Abuse and Domestic Violence-Operational Guidance- May 29, 2009

Link: www.judiciary.state.nj.us/directive/2009/dir_03-09.pdf

This directive provides operational guidance to judges and court staff on the implementation of policies to protect domestic violence victims and children exposed to such violence.


Crespo v. Crespo, 408 N.J. Super. 25 (App. Div. 2009) [Judge Fisher] A-0202-08T2, A-0203-08T2

Constitutionality of the Prevention of Domestic Violence Act Upheld

    The constitutionality of the Prevention of Domestic Violence Act (PDVA) was upheld in all respects in his appellate court decision, which reserved an unpublished trial court decision to the contrary.

Judge Fisher, speaking for the appellate panel, dealt at length with due process and separation of powers challenges to the constitutionality of the PDVA. Judge Fisher also relied upon Roe v. Roe, 253 N.J. Super. 418 (App. Div. 1992), which upheld the constitutionality of the PDVA and expressly upheld the appropriateness of the “by a pre-ponderance of the evidence” standard. 408 N.J. Super. At 36. The appellate panel held:

Because Roe bound the trial judge and required that he reject defendant’s arguments regarding the constitutional sufficiency of the preponderance standard in actions brought pursuant to the Act, the Attorney General is correct that the judge erred in refusing to follow Roe. The judge was privileged to disagree with Roe but he was not free to disobey. Id. at 37.

To support the conclusions with respect to the separation of powers concerns, the appellate panel took note of the adoption by the Supreme Court of R 5:7A as well as the issuance of the state’s Domestic Violence Procedures Manual, saying:

Rather than viewing the Act’s procedural components as usurping its exclusive constitutional authority over the practices and procedures utilized in the courts, the Supreme Court has embraced and enhanced the Act’s procedural components by adopting Rule 5:7A and by participating with the Attomey General in the creation of a Domestic Violence Manual.id. at 34.

The appellate panel also rejected other constitutional challenges to the provisions of PDVA, including:

  1. Upheld the weapons forfeiture and prohibition of possession of weapons provision;
  2. Upheld the constitutionality of the requirement that the final hearing be held within 10 days, nothing the Supreme Court decision in H. E. S. v .J.C.S., 175 N.J. 309 (2003), which allows a relaxation in the interest of justice.
  3. Denied the absolute right to have discovery and to take depositions recognizing, in accordance with trial-level opinion of Depos v. Depos, 309 N.J. Super. 396 (Ch. Div. 1997), that, “in compelling circumstances, where a party’s ability to adequately present evidence during a domestic violence action may be significantly impaired, a trial judge may, in the exercise of sound discretion, permit limited discovery in order to prevent an injustice.” Id. at 44.
  4. Rejected the right to trial buy jury because of the principle relief sought is injunctive.


M.S. v. Millburn Police Dept., 197 N.J. 236 (2008) [Justice Albin] A-80 September Term 2007


Application of the Domestic Violence Forfeiture Statute


Only when a person’s firearm is seized pursuant to the PDVA  and “has not been returned” for a reason articulated in the Domestic Violence Forfeiture Statute, N.J.S.A. 2C:25-21.d.(3), is that person permanently barred from obtaining a firearms identification card according to this Supreme Court decision.

In 1997 a final restraining order was entered. By consent judgment, the firearms owned by M.S. were sold. The Millburn Police Department did not return the ID card at that time. In 2000, the final restraining order was vacated. In 2004, the New Jersey Legislature amended the New Jersey Gun Control Law, N.J.S.A. 2C:58-3c.(8) to provide: “No handgun purchase permit or firearms purchaser identification card shall be issued…to any person whose firearm is sezied pursuant to the ‘Prevention of Domestic Violence Act of 1991,’ and whose firearm has not been returned.” In 2005, M.S. requested that the Mill burn Police Department return his firearms ID card.

The appellate court directed that the firearms ID card be withheld from M.S., holding that because M.S.’s five firearms were seized in 1997 and not returned to him, N.J.S.A. 2C:58-3.c.(8) applied retroactively and prohibited  the return of his firearms ID card or the issuance of a new one.

The Supreme Court reversed the appellate court decision, holding that the “consent judgment” entered into in 1997 with regard to the disposition of firearms did not constitute a knowing and voluntary forfeiture of M.S.’s right to possess a firearms identification card. The Supreme Court held that there was no judicial finding that M.S. forfeited his right to a firearms identification card or to possess a firearm under the statute. The Supreme Court directed that M.S.’s firearms ID card could be withheld from him only if the prosecutor’s office:


can show that it would have succeeded had a forfeiture hearing been conducted in 1997. In other words, if the Prosecutor’s Office can prove plaintiff’s firearms would have been forfeited and therefore not “returned,” then plaintiff cannot compel the Mill burn Township Police Department to convey to him a firearms card that it is forbidden from issuing pursuant to N.J.S.A. 2C:58-3(c)(8). ID. AT 252.

The matter was remanded to the Law Division to conduct a hearing, within 30 days, to determine whether the prosecutor’s office would have succeeded at a N.J.S.A. 2C:25-21. D. (3) forfeiture proceeding. The prosecutor’s office was also given the opportunity to offer proof that, at the time of the hearing, M.S. would otherwise be disqualified pursuant to the provisions of N.J.S.A 2C:58-3.c.







Amendment to R. 1:1-2- September 1, 2009

Consteuction and Relaxation; References to Marriage, Spouse and Related Terms

Link: www.judiciary.state.nj.us/notices/2009/omnibus.pdf


A global rule was adopted to ensure that all litigants in the New Jersey courts, whether a spouse, partners to a civil union or partners to a domestic partnership, are treated equally under the Rules of Court. The rule amendment is based primarily on language that was codified in N.J.S.A. 37:1-33.

Amendment to R. 1:2-1- September 1, 2009


Proceedings in Open Court; Robes

Link: www.judiciary.state.nj.us/notices/2009/omnibus.pdf

This amendment references R. 1:38-11(b) as the controlling rule for sealing the court record.


New R. 1:38- September 1, 2009

Public Access to Court Records and Administrative Records

Link: www..judiciary.state.nj.us/notices/2009/omnibus.pdf

This new rule establishes the court policy regarding the confidentially of court records.






Chandok v. Chandok, 406 N.J. Super. 595 (App. Div. 2009) [Judge Stern, P.J.A.D.] A-5871-06T3


Recusal of Trial Judge in a Divorce; Prior Acrimonious Relationship with Attorney

It is reversible error for a judge to refuse to reuse himself under circumstances where a reasonable person would conclude there is reason to believe the judge might be biased against an attorney or litigant based on their prior relationship. The appellate court reversed and remanded for a new trial when the trial judge refused to recuse himself on application of counsel based on their prior acrimonious relationship and litigation occurring from the breakup of their law firm.

Counsel for the defendant substituted into a highly contested, complex matrimonial matter two months before the trial commenced. The day prior to the start of trial, counsel filed a motion to recuse the trial judge. Some nine years earlier the parties, then legal partners, had been involved in litigation over the break-up of the firm, including allegations against counsel of fraud, intentional deceit, misappropriation and assault. The trial judge had previously had the opportunity to rule on similar recusal applications by the attorney, having denied them as well.

Acknowledging that there were concerns with the procedural manner and timeline involved with counsel raising the conflict issue, the court nonetheless made clear that the overriding issue was objective judicial impartiality. “The bottom line, irrespective of how the matter should have been raised, is that this judge should not have sat on this case.” Id. at 606. The court declined to draw a bright line rule, deferring to the Supreme Court rule-making authority, concerning the appropriate time pariod for a partner not to appear before a judge.


Comment: Trial judges must be particularly reflective concerning requests for recusal arising from allegations of personal bias or conflict. There are plenty of other cases to try.


Piscitelli V. Classic Residence By Hyatt, 408 N.J. Super. 83 (App. Div. 2009) [Judge Lyons] A-5027-07T2


Judicial Notice of Financial Crisis

         Judicial notice may be taken of the severe economic downturn and the unemployment situation facing the country, according to this appellate court decision.

The plaintiff filed suit against a hotel for hiring an illegal immigrant who stole the plaintiff’s identity. The plaintiff alleged the defendant negligently failed to confirm the illegal immigrants’ true identity prior to hiring her. The trial court dismissed the plaintiff’s complaint without prejudice  pursuant to R. 4:6-2(e) and subsequently denied the plaintiff’s application to set aside the order dismissing her complaint pursuant to R. 4:50-1(f).

The appellate court reviewed the legislative history of the Immigration Reform and Control Act, specially 8 U.S.C. $ 1324a, and found there was no explicit or implied private cause of action under the statute. The legislative history indicated that Congress attempted to balance the obligations and responsibilities it placed on employers regarding hiring illegal immigrants against possible employment discrimination based on national origin or citizenship status. The court declined the imposition of a new duty on all employers to verify the identity of prospective employees.


We can take judicial notice of the severe economic downturn and the unemployment situation facing the country. To increase the cost to an employer of hiring may well be contrary to the public interest. 408 N.J. Super. at 114.


Comments: Judicial notice of the current financial crisis may be appropriate in change of circumstances applications. Lapis v. Lapis, 83 N.J. 139, 148 (1980).



Thomas H. Dilts is a family part judge in Somerset Country.

  1. David Milliard is the family part presiding judge for Ocean County.

Patricia B. Roe is a family part judge in Ocean Country. William R. De Lorenzo is a family part judge in Bergen County. Octavia Melendez is a family part judge in Camden County. Charles F. Vuotto Jr. is an attorney in Matawan and the current chair of the Family Law Section of the NJSBA. David Tang is an attorney with the Administrative Office of the Courts, Family Practice Division.


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