Author Archives: tsclaw2209
Getting the other parent to stop smoking in the house with children in New Jersey
Smoking in the house is a common issue, especially with FD docket cases. Its rare that one parent starts smoking after the divorce. Thus, either or both parent likely smoked before the divorce and therefore, it would be rare that this would suddenly become an issue post-divorce. However, it does become an issue when a parent moves in with someone such as a paramour or a family member who does smoke.
Courts have clearly found that smoking around the child causes harm and as a result, a smokey house may play a big part in the court’s decision making. There is case law on this issue, specifically Unger v. Unger, 274, N.J. Super (Ch Div 1994). In that case, the father complained that the mother was smoking around the children to the point where one child developed a cough. This was despite a consent order where the mother agreed not to smoke around the child. At the end of the trial, the judge entered an order that the mother could not smoke in the house within 10 hours of the children being at the house. Of course, the house will still smell like smoke. Thus, some judges may force the parent to smoke outside.
A bad spouse doesn’t always make a bad parent in New Jersey
Courts have distinguished between marital fault and misconduct that would lead a court to find that a parent is unfit. This means that proving that a parent was a horrible spouse does not mean that the court will also found that the parent is unfit. Of course, there is a difference between seeking custody versus eliminating parenting time. To eliminate parenting time, some courts take the view that children are only entitled to D- parents, not A+ parents. However, when it comes to custody, the court will generally determine which parent is better.
Furthermore, all cases are fact sensitive. So, arguing that a parent engaged in adultery may have absolutely no impact on a custody or parenting time award in New Jersey. However, if one of the parents is bringing the child around the new paramour, the court may side with the other parent as courts do not like to have children be subject to new paramours, especially right after the parents separated or divorced.
Step Parent Visitation Rights in New Jersey
There is very little authority on the topic of step parent visitation in New Jersey. One reported case on the topic is Kipstein v Zalewski, 230 NJ Super 567 (Ch. Div. 1988). In that case, the Court found that there is no automatic right to step parent visitation in New Jersey but at the same time, it is not completely barred. This is a good example of a bad set of facts making bad law. In this case, the step-parent moved for visitation with the child even though he had only been married to the natural mother for one year. In addition, the child apparently did not want visitation with him either. Thus, one has to question why he moved for visitation in the first place.
It is assumed that anyone hiring an attorney to enforce step parent visitation rights will have a much better case and that the child will at least want to take part in the visitation. The petitioner should set forth the exact reasons why visitation is needed and what parental activities the petitioner engaged in, for how long, etc. Detail is important and other witnesses would also be important.
If you are seeking step parent visitation in New Jersey or you are defending against a motion for visitation, call the team of aggressive New Jersey visitation lawyers today and allow us to fight for you!
Sibling Visitation in New Jersey
Its rare that siblings seeks visitation. I think it is more common that a sibling will seek custody instead. However, N.J.S.A. 9:2-7.1 grants siblings visitation only in the event of a disruption to the family unit by death, separation or divorce. This is the same statute that set forth grand parents rights to visitation which was later modified by the Moriarty case. However, unlike grand parents rights which has been extensively litigated, there are no reported cases on sibling visitation. While there is an argument that the same burden that applies to grand parents also applies to siblings, I would argue otherwise. This firm has been involved in several cases where this has been an issue although we were not directly representing the siblings and the courts have liberally granted visitation.
Grandparent rights in New Jersey
Grand Parent rights in New Jersey are limited. The New Jersey Supreme Court set forth the standards that grand parents must show in order to get visitation in the case of Moriarty v. Bradt, 177 N.J. 84 (2003). The Court held that first, the grand parent must establish be a preponderance of the evidence that visitation is necessary to avoid harm to the child. This is a very difficult burden to overcome but it is not impossible. If the grand parent does meet this burden, then the parent must offer a visitation schedule.
In Mizrahi v. Cannon, 375 NJ Super 221 (App. Div. 2005), the Appellate Division held that grand parents must establish that denying visitation would wreak a particular identifiable harm, specific to the child, to justify interference with the with a parent’s rights to due process. Generic or generalized allegations of harm are not sufficient.
If you are facing a grandparent’s rights issue in your case, call us to speak to one of our New Jersey grandparent visitation lawyers today to see how we can help you. We could put together a grandparent visitation motion that is hard hitting and aggressive so that you can have a better chance at victory.
Same Sex partners are entitled to parenting time with the child in New Jersey
Same sex partners face a daunting decision when they choose to have a natural child instead of adopting. Clearly, both cannot have the child together. One has to be the biological parent and the other will not be. Of course, the other party can adopt the child which thus helps to solidify that parent’s rights. However, not every couple has that kind of foresight. Some couples may skip that procedural or just put if off thinking that it is not necessary because they won’t be breaking up. Of course, no one goes into a relationship thinking it will break up but most of them do. Thus, if the parties cannot agree as to what happens with the child when they break up, a lengthy court battle will ensue.
Luckily, the non-biological parent in a same sex partnership does have an ability to gain legal rights to the child. That party can file a complaint with the court to be recognized as a psychological parent. The complexity of the case will often turn on the age of the child. Clearly, an older child will view both parties as the parent. However, a very young child may not have that ability at all. A toddler may present a very difficult call. Either way, the best way to handle this is to hire a lawyer as soon as possible to discuss all of your options.
Please note that a same sex partner can also advance the argument that since they consented to the artificial insemination of their partner, they are presumed to be the natural parent. See In re Parentage of Robinson, 383 N.J. Super 165 (Ch. Div. 2005).
A Psychological Parent has the same rights as a natural parent in New Jersey
In V.C. v. M.J.B., 163 N.J. 200 (2000), the New Jersey Supreme Court found that the same sex partner of the defendant was a psychological parent of the child at issue, thus granting the mother visitation. Although the issue of who is a psychological parent has come into play with same sex partners, the issue has traditionally come up in two other situations. The first is where the purported father of the child later finds out that he’s not actually the real father. However, so much time has passed that the court will hold that this person is the father as a psychological parent. Likewise, this issue will also come up where third parties, usually grand parents, have watched the child for a long period of time. Thus, even though it is obvious that these people are not the natural parents, the fact that they raised the child for a significant period of time may elevate them beyond mere grand parents.
The test used to determine if someone meets the test to be considered a psychological parent are:
1. that the biological parent or adoptive parent consented to and fostered the petitioner’s formation and establishment of a parent-like relationship with the child.
2. that the petitioner and the child lived together in the same house
3. that the petitioner assumed the obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contribution towards the child’s support, without expectation of financial compensation
4. that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship that is parental in nature.
If you are seeking parental rights as a psychological parent in any court in New Jersey, call our team of tough, smart lawyers today to discuss how we can help you.
Child custody after the death of the custodial parent
In Watkins v. Nelson, 165 NJ 235 (2000), a fight developed between the grand parents and the father after the mother of child, who was the custodial parent, had died. The New Jersey Supreme Court found that NJSA 9:2-5 addressed the custody of a child after the death of a custodial parent. A presumption exists in favor of the custodial-parent but that presumption can be overcome by a third party, such as a grand parent. However, the presumption can only be overcome if it is shown that the natural parent is unfit, has abandoned the child, is guilty of gross misconduct or there are other exceptional circumstances. At that point, then the court will have to look at the best interests of the child.
Can men get custody of infants in New Jersey?
Gone are the days where the man would not get custody of a child. However, men still face a problem with babies and young children. The tender years doctrine stated that women would get custody of young children. I don’t think you’ll fine New Jersey judges citing to this as it is probably not the law anymore. I say probably not because there are conflicting opinions. However, men still face big hurdles when seeking custody of newborns. While more women work, it is more common that the mother may me out of work and the father would be working. All things being equal, courts will likely side with the mother. Compounding this problem for fathers is that only the mother can breastfeed. Of course, formula is an option but if the decision is made to breastfeed the child every day, the father will have to work harder to get custody. Of course, this doesn’t mean its impossible; its just a reality men have to deal with.
Pendente Lite Custody in a New Jersey Divorce Case
When parents split up or separate prior to the divorce being final, a number of problems often develop with regard to who will have custody and the parenting time for the other child. Without a court order, there is a wild west situation. Court order grant rights to both parents so without one, there are no real rights. There is nothing for the police or the court to enforce. Thus, parents who separate and operate without a custody order is asking for trouble. We have seen clients operate without a custody order for 5 years and then when there is a problem, there is nothing to enforce.
Of course, courts will generally go with whatever the custody arrangement has been in the past but this can be tough to show when both parents lived together and both worked. Thus, the lawyer for the client seeking custody will have to get into the details of who did what for each child.
NJ Child Custody Attorneys 