Category Archives: Child Custody Law
Holding the other parent in contempt of court for interfering with parenting time in NJ
A contempt proceeding should be brought under R. 1:10-2 against the other parent for interfering with parenting time. Under R. 1:10-3, monetary sanctions are available. Often times, lawyers will file a motion to enforce litigant’s rights and simply ask the Court to verbally scold the other parent. I view these case as dealing with any other bully. The best way to get a bully to back down is to stand up for yourself and punch them in the mouth. Clearly, assaulting the other parent is not advisable but standing up for yourself in court and using the court to deliver a serious blow to them will often get them to back down.
Now I’ve heard every excuse in the book as to why the other side will not listen to any court order. In fact, I find it odd that people would call a lawyer only to tell the lawyer that the other side cannot be defeated. Why call the lawyer in the first place? Quite often, the prospective client has handled the case on their own or did not have an aggressive lawyer in the past. I cannot think of any case that our firm has handled where we could not help our client get parenting time unless the parent was involved with DYFS. Even with serious DYFS allegations, we can almost always get the client some visitation.
Thus, if you want to enforce your parenting time and teach the other side that you will not back down, speak to one of our tough, smart lawyers about filing a motion to hold the other parent in contempt.
Restricting visitation with the other parent’s new paramour in New Jersey
I’m always amazed how people that are divorced or separated seem to rush right into a new relationship. The concern is that this relationship will not last although the parent will likely argue that this time is different. The other parent will likely have a number of concerns. The first concern by the other parent is that this parent will have a number of relationships and if the child is exposed to all of these people, the child will harmed psychologically. The other concern is that the person poses a danger to the child. When the parent has a new girlfriend, the most common “danger” is smoking or substance abuse. If the parent has a new boyfriend, the most common “danger” is physical abuse or substance abuse, possibly based upon the boyfriend’s past record. I have seen a number of women clients meet a guy and move him into the house without knowing much about him. All of them have told me that they know about his background and that they trust him. Of course, as the case goes on, more of the boyfriend’s background comes out and often times, the parties break up as a result.
I’m not here to tell people who to date but rushing into a relationship and bringing the new paramour around the child or even worse, moving that paramour in, could cause big problems. Even if you are 100% convinced that the child will not be harmed in anyway, you have to figure out how the other parent will handle this issue. In the examples I have provided, these women spent a ton of money to fight over a new paramour who left them before the case was over. Thus, if the other parent will give you a big problem, you have to really figure out whether its worth it to fight over this new paramour who may wind up leaving you when things get difficult. Remember, I’m sure you had no plans on breaking up with the other parent and yet, you did. Thus, while you may indeed stay with this new paramour forever, the odds are against it. Either way, I think the money spent on lawyers fighting over this issue is better spent on a college fund.
This of course doesn’t mean that the new paramour has to stay away forever. Instead, take baby steps when you introduce the new paramour to the child and try to get the input from the other parent. After all, they will likely be in the same position at some point.
How to re-establish visitation with your children in New Jersey
With all the dead beat parents out there, you’d think that custodial parents everywhere would welcome involvement from the other parent. Unfortunately, this is not always the case. In fact, custody battles make up a huge portion of the court cases in New Jersey. Our team of custody lawyers have seen huge custody and visitation battles in countless cases through the entire state. One common scenario that comes up is when a parent, often (but not always) the father, seeks to reinstate parenting time after years of not having any. The reasons vary, but often it involves the custodial parent thwarting visitation.
Like many problems, prevention is the best medicine. I cannot remember a case where we could not help a client get visitation if the parent did not have any serious problems such as substance abuse allegations or physical abuse. In fact, even with serious substance abuse allegations, we have still been able to get our clients good parenting time schedules under the circumstances. Often times, it seems that people do not hire a lawyer or they hire a lawyer that does nothing. Either way, they get discouraged and years go by without any real contact with the child. It sometimes take a lot of hard work by a very aggressive attorney to hold the other side’s feet to the fire to enforce visitation. Criminal charges and motions are your best bet. Court orders must have teeth to them and if you don’t stop fighting, the court will almost always back you up. Nothing upsets the court more than having a party disregard its orders. I don’t want to hear how difficult the other side is or what a pain their attorney is. We’ve seen it all and we’ve battled back.
If you are unfortunately in a situation where you have had little to no contact with your children in quite some time, the good news is that you can get back on track if you are willing to take baby steps. You cannot think that you will suddenly go from having no contact to an overnight weekend in a day. That just doesn’t happen. You will need to get reintroduced to the child and depending on the child’s age and the amount of time without contact with the child, your contact may even need to be supervised. This is because you don’t know how the child is going to react. The child may freak out and someone familiar needs to be there to calm the child down. Of course, this doesn’t mean that all initial contact will be supervised; its just one of many options.
The court order should work like a ladder. Either you will return to court after a few weeks to discuss the progress or the court order will have a self executing schedule of increasing parenting time eventually leading up to a normal visitation schedule. Of course, this is easier said than done and it will often depend on what type of fight is put up by the other side. If you want to get your visitation back, call our team of tough, smart lawyers today and allow us to fight for you!
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.
NJ Child Custody Attorneys 