WILENTZ Attorneys at Law

ANNUAL FAMILY LAW DIGEST Summary of 2016 New Jersey Family Law Published Opinions,

N^w and Amended Court Rules and Statutes

Prepared by the Family Law Department.

David M0 Wildstdn

Joseph J. RusselL, Jr,

Jay J. Ziznewski

Joseph M. Freda, III Jeana N. Shapiro

Meridian Center I 90 Woodbi idge Center Drive Two Industrial Way West Suite 900, Box 10

Woodbridge, NJ 07095-0958 (732) 636-3000

fax (732) 855-6117

Eatontown, NJ 07724 -2265 (732) 542-4500

fax (732) 493 8387

Two Perm Centei 110 William Street 26th Floor

New York, NY 10038 3927 (212)267 3091

fax (212) 267-3828

www-farmlviaw wilentzcom Suite 910 Philadelphia, PA 19102

(215) 9^0-4000 fax (215) 636-3999

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TABLE OF CON l ENTS

PAGE

1 ADOPTION,.

6 ALIMONY

14 CHILD SUPPORT

16 CIVIL PROCEDURE

19 CUSTODY

24 DOMESTIC VIOLENCE

28 DIVISION OF CHILD PROTECTION & PERMANENCY

..35 EQUITABLE DISTRIBUTION.

37 GRANDPARENT VISITATION

40 AMENDED OR NEW COURT RULES

45 AMENDED OR NEW STATUTES

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ALPHABETICAL INDEX OF CASES

PAGE

CASES

A.M.C. V. P.B.. 148 A.3d 754 (App. Div. 2016) 24

Avelino-Catabran v. Catabran, 14 445 N.J. Super. 205 (App. Div. 2016)

Bisbing v. Bisbing, 19 445 N.J. Super. 207 (App. Div. 2016)

D.G. el al. v. K.S.. 444 N.J. Super. 423 (Ch. Div. 2015) 2 1

Fichter v. Fichter. 14 444 N.J. Super. 205 (Ch. Div. 2015)

Harrington v. Harrington. 15 446 N.J. Super. 399 (Ch. Div. 2016)

In the Matter of the Adoption of a Child by J.E.V. and D.G.V., 226 NJ. 90 (2016)

In the Matter of the Adoption of a Child by M.E.B. and K.N.. 444 N.J. Super. 83 (App. Div. 2016)

1

3

In the Matter of the Application of the State of New Jersey for the Forfeiture of Personal Weapons and Firearms Identification Card Belonging to F.M..

25 224 NJ. 487 (2016)

Innes v. Marzano-Lesnevich. 224 NJ. 584 (2016) ..23

J.S. v. D.S.. 2016 WL 7048807 (App. Div. 2016) 23

Lall v. Shivani, 1 6 2016 WL 7094156 (App. Div. 2016)

Landers v. Landers. 6 444 N.J. Super. 315 (App. Div. 2016)

Lombardi v. Lombardi. 447 N.J. Super. 26 (App. Div. 2016) 7

Major v. Maguire. 37 224 RL 1 (2016)

Matison v. Lisnvanskv. 1 8 443 N.J. Super. 549 (App. Div. 2016)

Mills v. Mills. 447 NJ. Super. 78 (Ch. Div. 2016). 9

-ii-#8415772.1

ALPHABETICAL INDEX OF CASES, contd

PACE

Mueller v. Mueller, 446 N.J. Super. 582 (Ch. Div. 2016)

New Jersey Division of Child Protection & Permanency v. K.G.. 30 445 N.J. Super. 324 (App. Diy. 2016)

New Jersey Diyision of Child Protection and Permanency y. G.8. and K.S., 28 2016 WL 6872983 (App, Div. 2016).

New Jersey Division of Child Protection and Permanency v. J.D, J.R. and J.G. In the Matter of J.D. III. 148 A.3d 128 (App. Div. 2016) 29

New Jersey Division of Child Protection and Permanency v. K.S. 32 445 N.J. Super. 384 (App. Div. 2016)

New Jersey Division of Child Protection and Permanency v. N.T., 33 445 N.J. Super. 478 (App. Div. 2016)

New Jersey Division of Child Protection and Permanency v. S.G. 34 2016 WL 7242759 (App. Div. 2016).

New Jersey Division of Protection and Permanency v. K.M., 31 444 N.J. Super. 325 (App. Div. 2016)

Quinn v. Quinn, 1 2 225 NJ, 34 (2016).

Slawinski v. Nicholas. 38 2016 WL 7094152 (App. Div. 2016)

State of New Jersey in the Interest of A.R.. 34 149 A.3d 297 (App. Div. 2016)

T'hieme v. Aucoin-Thieme. 35 224 NJ. 245 (2016)

V.H. and C.H. v. N.J. Div. of Child Protection and Permanency. 5 444 N.J. Super. 219 (Ch. Div. 2015)

STATUTES 45 N.J Stat. § 1:1-2

N.J. Stat, g 2A:4-30

N.J. Stat. $ 2C:25-19

N.J. Stat. § 37:1-13

N.J. Stat. § 52:176-194.3

RULES

45

45

45

45

40 1:13-2 40 1 : 2 1 - 1 ,40 1:38-3

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ALPHABETICAL INDEX OF CASES, contd

PAGE

40 1:38-7

40 1:40.

...41 1:43.

41 2:9-1

41 5:1-4

.. 41 5:1-5

42 5:3-2

42 5:3-8

42 5:4-2

5:5-4 .42

5:5-6 42

5:5-7 42

5:6-1 43

5:7-11.

5:7-4...

5:7-4A

43 i

43 I

43

5:7-5 43

5:12-4 43

5:14-4 44

Appendix IX-A

Appendix IX-B . .

Appendix 1X-H

Appendix XXIX-A through D

44

44

44

44

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ADOPTION

In the Matter of the Adoption of a Child by J.E.V. and D.G.V., 226 N.J. 90 (2016). Opinion

by Chief Justice Rabner. 1

Issue: Does an indigent parent who faces termination of her parental rights in a contested private

adoption proceeding have a right to appointed counsel?

Holding: Yes. The Court held that indigent parents facing termination of their parental rights

pursuant to the Adoption Act, N.J.S.A. 9:3-37 to 56, have a right to counsel under Article I,

Paragraph 1 of the New Jersey Constitution. In this case, the matter was reversed and remanded

to the trial court for a new trial, since the Court found that the trial court effectively denied L.A.

counsel.

Respondent, L.A., gave birth to a daughter in 2009. When her daughter was two

and one-half years old, L.A. was contemplating adoption and placed the child with the

Children's Home Society (CHS). However, after attending pre-adoption counseling, L.A.

decided she did not want to surrender her parental rights, Irrespective of L.A.'s decision to not

surrender her rights, the child was placed in short-term foster care and in 2012, the child was

placed with the petitioners, J.E.V, and D.G.V. At that same time, L.A. agreed to a service plan

with CHS, which included weekly meetings with a birth parent counselor and the goal of L,A.

attaining stable housing and work. This plan was revised five months later to incorporate

additional services for the child. In 2013, CHS contacted L.A. and stated via letter that they

planned to proceed with the child's adoption. Included with the letter were several forms to

obtain L.A.'s consent In addition, CHS advised L.A. that if she objected to the adoption she

could file a written objection with the Surrogate's Office. The end of the letter specifically

stated, "[y]ou have a right to be represented by an attorney, and you may or may not have the

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right to have counsel appointed to represent you. You may contact the Essex/Newark Legal

Service in Essex County in which this action is pending by calling (973) 624-4500," E.A, did not

sign any other consent forms provided to her; instead, L.A. wrote three objection letters.

J.E.V. and D.G.V. filed a complaint for adoption with the consent of the agency,

CHS, in August 2013. After receiving the complaint for adoption, the court scheduled a hearing

and notified L.A. of her right to appear, object, file written objections, and ''have counsel or

court-appointed counsel." Specifically, the notice stated: "[i]f you are unable to obtain an

attorney, you may communicate with the New Jersey Bar Association by calling (732) 249-5000.

You may also contact the Lawyer Referral Services of the Essex County Bar Association at I

(973) 533-6775, if you cannot afford an attorney, you may contact the Essex County Legal Aid

Society at (973) 622-0063 or the Essex County Surrogate's Court at (973) 621-4900. If you

qualify, the Court will appoint counsel for you free of charge." At trial, the issue of L.A.'s

representation was briefly raised but L.A. was not informed that counsel could be appointed to

represent her if she was unable to afford one. J.E.V. and D.G.V were represented, and L.A.

appeared pro se. L.A. was not aware of many of the procedural and legal aspects of trial. L.A.

did not cross examine most of the expert witness who testified and did not call an expert witness

or any other witness. L.A. did however, testify herself. At the end of trial, the court terminated

L.A.'s parental rights. L.A. appealed, and the Appellate Division appointed counsel for L.A. The

Appellate Court reversed and remanded the case for a new trial. The Court granted J.E.V. and

D.G.V.'s petition for certification

The court must terminate parental rights before a judgment of adoption may be

entered. Termination of parental rights may happen voluntarily or may be petitioned for by a

prospective parent, as in this case. If the adoption is contested, the court must ultimately

conclude whether it is in the best interest of the child to be adopted. As a result of this procedure,

the State is heavily involved in even private adoption proceedings.

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The Court held that an indigent parent facing termination of their parental rights

in a contested private adoption has a right to appointed counsel under the due process guarantee

of the New Jersey Constitution. This right has been found in numerous other states based on due

process or state constitutional principles, Drawing on N.J. Division of Youth and Family

Services v. B.R., 192 N.J. 301(2007) as well as Mathews v. Eldridge, 424 U.S. 319, 335 (1976),

the Court enumerates that: 1) "the termination of one's parental rights plainly implicates a

fundamental liberty interest"; 2) when parental rights are terminated they are terminated

completely and permanently; and 3) this is true regardless of whether or not the petition is

initiated by the State or by a prospective parent. As such, the risk of error resulting from an

unrepresented indigent parent is too high. However, the Court limited the reach of an indigent

parent's right to counsel to when the parent formally objects to the agency's decision to proceed

with adoption.

The Court recognized the additional burden that will be placed on publicly funded

agency's equipped to take on these types of matters, such as the Office of Parental

Representation in the Public Defender's Office. As a result, the Court directed the Legislature to

address this issue.

In the Matter of the Adoption of a Child by M.E.B. and K.N., 444 NJL Super. 83 (App. Div.

2016). Opinion by Judge Lihotz, P.J.A.D.

Issue #1: Did a trial court's dismissal of the grandparents' complaint, during an ex-parte

proceeding initiated by the parents, violate due process?

Holding #1: Yes. After the paternal grandparents filed a complaint for adoption of their

grandchild, an order for a preliminary hearing was issued and the child was declared a ward of

the court. The paternal grandparents claimed that they had been caring for the child full time

with the verbal and implied consent of the biological parents. As a result, the court awarded the

paternal grandparents temporary physical custody of the child. The biological mother and father

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were named defendants in the original complaint and were therefore served with the complaint

and the preliminary order. The mother then filed an ex-parte order to show cause requesting the

return of the child to her custody, and that the grandparent's be restrained from further contact

with the mother or child. During the ex-parte proceeding, the judge vacated the previous order

and dismissed the grandparent's complaint.

The paternal grandparents appealed the dismissal stating that they were not

provided notice of the order to show cause, were never served with the pleadings, and had no

knowledge that a proceeding would take place. The Appellate Division held that the dismissal of

the grandparent's complaint was improper. First, the Appellate Division noted that in civil

proceedings a litigant is entitled to a fair hearing which includes the constitutional protections of

due process. These rights are incorporated in emergent applications and include the right for a

litigant to request injunctive relief such as in this case. In a court of equity a judge has broad

discretion in granting requests for injunction relief. However, the Appellate Division held that in

an ex-parte proceeding, where an injunction is requested, the proceeding should be on the record,

with legal or factual findings supporting requests for relief, and the adverse party must have had

an opportunity to be heard. Because in this case the record was silent as to any legal or factual

findings supporting the decision, and the grandparents had no notice, the Appellate Division

reversed and remanded the decision for further proceedings.

Issue #2: Is the dismissal of an allegedly deficient adoption claim during an ex-parte proceeding

mandatory under Rule 5:10-4(b)(3).

Holding #2' No. The Appellate Division clarified that although Rule 5:10 suggests that a

prerequisite to filing an adoption complaint includes evidence that the child is in fact available

for adoption after having been placed for adoption, this does not warrant a court to dismiss a

complaint in an ex-parte hearing where facts surrounding the adoption are in dispute. "Placement

for adoption" is statutorily defined under N.J.S.A. 9:3-37 to -56 as "the transfer of custody of a

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child to a person for the purpose of adoption by that person." Here, the facts of why the child

was in the care of the paternal grandparents are in dispute and should have been determined by a

fact finder. The Appellate Division also held that if facts are undisputed, there are existing

procedural safeguards provided for in the rules such as summary judgment to remedy these types

of allegedly deficient complaints.

V.H. and C.H. v. N.J. Div. of Child Protection and Permanency, 444 N.J. Super. 219 (Super.

Ct. 2015). Opinion by Judge Rauh, J.S.C.

Issue #1: Should an adoption be vacated on grounds of fraud or mistake where the New Jersey

Division of Child Protection and Permanency intentionally concealed the child's family history?

Holding #1: No. Plaintiffs' claim that DCPP willfully defrauded them by failing to disclose the

i child's family history including the birth mother's history of mental disease and the birth father's

identity altogether. Therefore, Plaintiffs' argue that the order should be set aside based on

mistake or fraud under Rule 4:50-l(a). However, the Court holds that because applications under

Rule 4:50-1 (a), (b), or (c) are to be made within one year, and it has been seven years since the

judgment, this provision does not apply. Further, the Court notes that although DCPP may have

failed to disclose this information, the plaintiffs were aware of it within a year and therefore had

the opportunity to seek to vacate the adoption.

Issue #2: Should an adoption be vacated where it would be in the best interest of the child as

well as the general welfare of third parties?

Holding #2: No. The Court highlights that although a judgment of adoption may be vacated, it

will not do so except under very limited circumstances. In this case, the child has become

physically violent towards students, homicidal towards the plaintiffs and classmates, and

I sexually molested his brother. However the Court notes that these instances do not constitute

unusual circumstances warranting the court to vacate the judgment of adoption seven years later

but "rather the uncertainty of becoming a parent either through the biological or adoptive

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process." The Court clarifies that adoption creates a legal parent child relationship which should

generally not be severed.

ALIMONY

Landers v. Landers. 444 N.J. Super. 315 (App. Div. 2016). Opinion by Judge Li hot/.. P.J.A.D.

Issue: Under the new alimony statute, N.J.S.A. 2A;34-23(j), does the presumption that alimony

terminates upon the payor reaching full retirement age as defined by the Social Security Act

apply to support obligations that were established prior to the statute's effective date of

September 10, 2014?

Holding: No. The proper standard to be considered in applications for termination of support

obligations that arose prior to September 10, 2014 is set forth in N.J.S.A. 2A:34-23(j)(3). Section

0(3) of the statute establishes that the burden is on the alimony payor to demonstrate by a

preponderance of the evidence that "modification or termination of alimony is appropriate" in

light of the "ability of the obligee to have saved adequately for retirement as well as the

following factors in order to determine whether the obligor has demonstrated that modification

or termination is appropriate:

(a) The age and health of the parties at the time of the application;

(b) the obligor's field of employment and the generally accepted age of retirement for

those in that field;

(c) The age when the obligor becomes eligible for retirement at the obligor's place of

employment, including mandatory retirement dates or the dates upon which continued

employment would no longer increase retirement benefits;

(d) The obligor's motives in retiring, including any pressures to retire applied by the

obligor's employer or incentive plans offered by the obligor's employer;

(e) The reasonable expectations of the parties regarding retirement during the marriage or

civil union and at the time of the divorce or dissolution;

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(1) The ability of the obligor to maintain support payments following retirement.

including whether the obligor will continue to be employed part-time or work reduced hours;

(g) the obligee's level of financial independence and the financial impact of the obligor's

retirement upon the obligee; and

(h) Any other relevant factors affecting the parties' respective financial positions

The final judgment of divorce incorporating the settlement agreement as to alimony was

filed on June 24, 1991 ending a 22 year marriage. The payor filed a termination application

upon his reaching full retirement age, 66. The trial court terminated alimony and concluded that

the alimony recipient failed to overcome the presumption of termination under N.J.S.A. 2A:34-

23(j)(l). However, because the final judgment preceded the statute's effective date of September

10, 2014, the Appellate Division reversed and remanded for further proceedings under N.J.S.A.

2A:34-23(j)(3) and placed the burden on the payor to demonstrate that termination or

modification is appropriate.

Lombardi v. Lombardi. 447 N.J. Super. 26 (App. Div. 2016). Opinion by Judge Rothstadt,

J.A.D.

Issue: Did the trial court err by failing to include savings as a component of the alimony

awarded to the Payee/wife?

Holding; Yes, the Appellate Division held that regular savings should be considered when

determining alimony even if there is no need to create savings to secure future payment of

alimony if husband seeks to modify the award.

The parties were divorced in 2014 after a twenty year marriage during which

Payor/husband was employed full-time and the primary breadwinner. Three children were born

of the marriage, and both parties were 48 years old. After the birth of the parties' first child,

Payee/wife left her job where she was earning $80,000 to become a full-time homemaker. Once

the three children were older, wife instructed fitness classes part time earning approximately

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$10,000.00 per year. Husband worked as a financial analyst or portfolio manager throughout the

marriage. Husband is currently a vice president, senior portfolio manager earning an annual

salary of $1,087,000.00 to $2,275,000.00 during the last five years of the marriage. Irrespective

of Husband's substantial income, the parties made the decision to save the majority of his

earnings and live a comfortable but not extravagant lifestyle. At the time of the divorce their

savings was approximately $4,180,000.00. In addition, the parties owned the marital home

without a mortgage, funded college for all three children and avoided debt. The marital estate

was valued at 5.5 million.

The trial court determined that wife was entitled to $7,600.00 per month in

alimony based on her need of $14,516 per month for herself and the children. The court also

awarded her $500 per month in child support, imputed her with $3,600 a month from her assets.

and $583 a month from her part-time job. Although the trial court concluded that savings was a

component of the marital lifestyle, no savings component was included in the alimony award.

The trial court justified the decision to not include a savings component in its alimony

calculation as being rooted in the numerous opportunities for wife to accumulate sufficient funds

as well as the ample life insurance policy on husband's life which all allowed Plaintiff to be

protected from a reduction in alimony.

The Appellate Division disagreed. The savings component of $67,000 per month

permitted husband to maintain the marital standard of living but deprived wife of the same

opportunity for savings in the future. The Court stated that savings should be considered as a

living expense when considering an alimony award and directed the trial judge to "give

consideration of the regular savings adhered to by the parties during marriage, even if there is no

concern about protecting an alimony award from future modification by husband or cessation

upon the death of the supporting spouse" based on prior case law. The supported spouse's need

for savings has been used in the past by the court as a form of security so that given any change

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in circumstances he or she is protected. However, the Appellate court noted that "the protection

of income being derived through alimony is not the only reason why a supported spouse requires

savings, especially where regular savings have been part of the established marital lifestyle." The

court noted that the expenditure of money for savings is no different than spending on other

family needs. In addition, the Appellate Division noted that the Supreme Court has recognized

the necessity of including regular savings when evaluating the martial lifestyle since a savings

category has been added to the Case Information Statement form required by the courts.

Mills v. Mills, 447 N.J. Super. 78 (Super. Ct. 2016). Opinion by Judge Jones, J.S.C.

Issue #1: Is an obligor's loss of employment and subsequent obtainment of new employment at a

significantly reduced salary, grounds for a reduction in his alimony obligation pursuant to

N.J.S.A. 2A:34-23(k)?

Holding #1: Yes. Following a thirteen year marriage, the parties were divorced and agreed that

Defendant would pay Plaintiff limited duration alimony in the amount of $330.00 per week. At

the time of the agreement. Defendant was employed as a district sales manager for a company

selling residential and commercial flooring services. The agreement did not contain a provision

lor modification based upon a substantial change in circumstances, but stated that the alimony

agreement is based on Defendant's gross income of $108,000.00 per year and Plaintiffs income

of $59,000.00 per year. Two years later. Defendant involuntarily lost his job and received a one­

time severance payment of $35,000.00, Within three months Defendant was able to find another

job, but at a significantly lower salary of $70,000.00 per year with a car allowance of $6,000.00

per year. Defendant accepted the position and initially continued to pay Plaintiff alimony at the

same rate with the assistance of his severance package. Defendant filed a motion to reduce his

alimony obligation based on a substantial change in circumstances once his severance pay was I

depleted.

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The alimony statute at N.J.S.A. 2A:34-23(k) addresses situations when an obligor

loses his or her job and therefore seeks a reduction in alimony. The statute sets forth numerous

factors for the trial court's consideration including the obligor's documented efforts to obtain

replacement employment or to pursue an alternative occupation. Additionally, the Statute

instructs the court to consider the obligor's good faith efforts to find remunerative employment at

any level and in any field. Here, the Court outlined that when considering an obligor's request

for a reduction in alimony as a result of loss of employment and subsequent employment at a

lower rate, the Court should consider: (a) if the supporting spouse's choice in accepting

replacement employment was objectively reasonable under the totality of the circumstances; and

(b) if so, what if any resulting adjustment in support is fair and reasonable to both parties under

the facts of the case?

Under this analysis, the court concluded that Defendant's loss of employment was

involuntary and that his efforts to obtain new employment were reasonable and obtained in good

faith. As such, the Court reduced Defendant's alimony obligation.

Issue #2: Are the terms of the 2014 Amended Alimony Statute, N.J.S.A. 2A;34-23(k), applicable

even though the parties were divorced prior to the September 10, 2014 effective date?

Holding #2: Yes, the Court concluded that N.J.S.A. 2A:34-23(k) was applicable. First, the Court

pointed out that the legislative intent of the statute itself was to prevent parties from unilaterally

attempting to undo contractual provisions or to prevail based solely on the 2014 amendments.

However, in this case the obligor was simply seeking to modify his alimony based on a

substantial change in circumstances, which he could do under both the case law before the 2014

amendments as well as under N.J.S.A. 2A;34-23(k). Further, the parties' agreement did not

contain a provision defining or limiting the standard for reviewing a modification of support

based upon substantial change in circumstances. In addition, the issue had not already been

litigated and adjudicated by the court in any previous post-judgment proceedings.

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Mueller v. Mueller, 446 N.J. Super. 582 (Super. Ct. 2016). Opinion by Judge Jones, J.S.C.

Issue: Under N.J.S.A. § 2A:34-23(j)(l)-(3), may a party seek to terminate or modify alimony

based on "prospective" retirement which would take place in five years?

Holding: No, a trial court may order prospective termination or modification of alimony when

retirement is in the near future. In Mueller, the payor filed a post-judgment motion asserting that

he was 57 years old and that he planned to retire when he was 62 years old since he would then

be entitled to receive full employment-related pension benefits. As a result, the payor sought a

court order to prospectively terminate his alimony obligation when he reached the age of 62 and

However, because his application was five years in was eligible for full pension benefits.

advance of his anticipated retirement the court took the opportunity to clarify the definition of

"prospective retirement."

The court first discussed how "ft]he amended alimony statute does not set a

specific minimum or maximum time period for obtaining an advance ruling on a prospective

retirement." Specifically, the court stated that although the statute does not provide an exact time

for prospective retirement, the spirit of the statute implies it should be in the near future. In

addition, the court noted that the obligor must present a specific and detailed plan for actual

retirement, not simply a general desire to retire. The court stated that "judicial consideration of a

prospective rather than an actual retirement" is warranted under the new statute "when (a) the

prospective retirement will take place in the near future, rather than many years after the actual

application, and (b) the applicant presents a specifically detailed, proposed plan for an actual

retirement as opposed to a non-specific, general desire to someday retire."

In this case, the payor's application to terminate alimony based on prospective

retirement in five years was denied since his request did not constitute a detailed plan for

retirement in the near future. In addition, the court also noted thai the husband's retirement at

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age 62 was early retirement as defined by the Social Security Act. Therefore, he did not even

fall within the defined age of retirement, further hindering his application.

The trial court further held that the payor's application could be nothing more

than an attempt to summarily modify a permanent or open durational alimony award to limited

duration alimony without having demonstrated any change in circumstance or grounds for

The court noted that this was not reflected in the legislative modification under R. 4:50-1.

history of or the amended statute itself.

Ouinn v. Quinn, 225 N.J. 34 (2016). Opinion by Judge Cuff, temporarily assigned, joined by

Chief Justice Rabner and Justices Patterson and Solomon. Justice Albin filed a dissenting

opinion in which Justice LaVecchia joins.

Issue; Where a settlement agreement expressly provides that alimony shall terminate upon a

finding of cohabitation, does the Court possess the equitable power to suspend alimony during

the period of cohabitation rather than terminating alimony on a permanent basis? Is it contrary to

public policy to enforce a provision within an Agreement terminating alimony based upon

cohabitation?

Holding; No, the trial court was required to terminate alimony as provided in the settlement

agreement. The parties settlement agreement stated that ex-husband's obligation of alimony

would terminate on his death or the ex-wife's death, remarriage, or cohabitation with another.

Approximately two years after the divorce, ex-wife was in a committed relationship and as a

result, ex-husband moved to terminate alimony. The trial court, applying the factors set forth in

!

185, 202-203 (1999), concluded that ex-wife was Konzelman v. Konzelman 158 N.J

cohabitating. However, because the cohabitation relationship had ended during the trial, the trial

court judge suspended alimony for the period of cohabitation rather than terminating alimony.

Fashioning this equitable remedy, the trial court noted the vast difference in income between the

parties and concluded that the ex-wife was "entirely dependent on her alimony for her support."

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The trial court also awarded ex-husband court fees and costs. The Appellate Division affirmed

the trial court's ruling, cautioning against frequently using equitable remedies but concluding

that in this case the trial court did not abuse its' discretion.

The New Jersey Supreme Court concluded that the trial court and Appellate

Division inappropriately fashioned an equitable remedy which ignored the settlement fashioned

by the parties. The Court highlighted that marital agreements, including settlement agreements.

are highly valued in the court system today and "fair and definitive arrangements arrived by

mutual consent should not be unnecessarily . . . disturbed." Here, the Court reiterated that the

parties clearly agreed that the ex-husband's obligation to pay alimony would terminate upon ex-

wife's cohabitation, and the fact that the ex-wife stopped cohabitating did not justify departing

from the agreed upon terms of the PSA. Ultimately the Court noted that settlement agreements

"that clearly and unequivocally provide for the termination of alimony upon cohabitation, are

enforceable when the parlies enter such agreements knowingly and voluntarily,"

Dissent: Justice Albin stated "a property settlement agreement in a divorce action should address

the economic consequences of a marriage's dissolution; it should not contain senseless shackles

that deprive a spouse of the right to seek love and companionship." Justice Albin suggested that

' if the cohabitation arrangement does not alter the alimony recipient's financial status, then

alimony should not terminate, and in general anti-cohabitation clauses that do not consider

economic circumstances are contrary to public policy. Disagreeing with the majority's contract

enforcement Justification, Justice Albin asserts that this contract should not be enforced since it

is contrary to public policy as it forces alimony recipients to effectively choose between

economic support and a desire to be in a romantic relationship.

#8415772.1 -13-

CHILD SUPPORT

Avelino-Catabran v. Catabran, 445 N.J. Super. 205 (App. Div. 2016). Opinion by Judge

Rothstadt, J.A.D.

Issue #1; Did the court err in fixing child support for a child already in college and a child age

17 when it adopted the calculations of one parent without making an independent analysis under

the guidelines and the statutory factors in N.J.S.A 2A;34-23(c)?

Holding #1: Yes. The Appellate Division found that the trial court's recalculation of child

support was improper because of the following: 1) failure to consider the statutory child support

factors, N.J.S.A 2A:34-23(c); 2) failure to properly calculate child support and issue specific

reasons for the recalculation; and 3) the court's exclusive reliance on Defendant's submitted

child support guidelines. Further, the trial court erred by not delineating the specific reasons as to

why a recalculation of child support, that deviated from the guidelines, was warranted.

Issue #2; When the parties have agreed to equally share college expenses in an MSA, should the

court consider the 12 Newburgh factors before the agreement is enforced?

Holding #2; No. The Agreement should be enforced unless there is a showing that the agreement

should be vacated or modified, Here, the Court held that there was no evidence of

unconscionability, fraud, or changed circumstances to warrant deviation from the terms of the

parties' settlement agreement.

Fichter v. Fichter, 444 N.J. Super. 205 (Super. Ct. 2015). Opinion by Judge Jones, J.S.C.

Issue: Does a parent who is already paying guideline-level child support for an un-emancipated

child have to contribute to the additional cost of that child's car insurance?

The 2013 amendments to the Child Support Guidelines included new Holding: Maybe.

language that generally stated transportation does not include expenses associated with a motor

vehicle purchased or leased for the intended primary use of a child subject to a support order.

However, the Guidelines do not define those expenses. Notwithstanding, the court concluded

#8415772.1 -14-

that even if one interprets the Guidelines to include the costs of car insurance, R. 5:6A allows for

a court to deviate from the Guidelines for good cause. Accordingly, the trial court held that a

court may in its discretion find good cause to deviate from the Guidelines and require parents to

contribute additional money towards a newly licensed, unemancipated child-driver's car

insurance. The court noted that good cause may include how critical car insurance coverage is

for the new driver's safety, how one cannot legally drive in New Jersey without car insurance.

and how much more expensive car insurance may be compared to other expenses, given that it

varies from case to case based on the amount of coverage sought.

In this case, the custodial parent sought contribution from the non-custodial parent

towards the cost of car insurance for their teenage child, a newly licensed driver. The non­

custodial parent was already paying Guideline-level support. The trial court found the $854

annual premium in this case to be reasonable and affordable when each party contributes to it.

Accordingly, the trial court imposed an obligation on the parties to split the cost 50/50.

Harrington v. Harrington, 446 N.J. Super. 399 (Super. Ct. 2016). Opinion by Judge Jones,

J.S.C.

Issue: May a party be awarded retroactive modification of unallocated child support prior to the

date of filing for multiple children where two of the three children have been emancipated?

Maybe. The court held that in a situation where a parent seeks a retroactive Holding:

modification of unallocated child support for multiple children based upon a child's

emancipation, while there are still other unemancipated children, the court has the discretion to

retroactively modify the child support back to the date of the child's emancipation. Whether or

not the court may retroactively modify child support is subject to the following equitable factors:

(1) the amount of time since the child was emancipated and the filing date of the motion for

modification; (2) any specific reasons for the delay; (3)whether the non-custodial parent

continued to pay the same level of child support: (4)whether the custodial parent or child

#8415772 1 -15-

engaged in any fraud or misrepresentation that cause the delayed filing of the motion; (5) if the

non-custodial parent claims they were unaware the child could have been emancipated, whether

the non-custodial parent could have discovered that information with a reasonable degree of

parental diligence; (6) whether proposed retroactive modification of child support over length

period of time would be unduly cumbersome and complicated; (7) whether the custodial parent

previously refrained from seeking to enforce or increase non-custodial parent's other financial

obligations; (8) whether the non-custodial parent is seeking a credit against unpaid arrears or

actual re-payment of child support; (9) the estimated amount of child support that the non­

custodial parent seeks and if that amount would cause the custodial parent financial hardship;

and (10) any other factors the court deems appropriate. The trial court scheduled a plenary

hearing to review and consider the comparative equities of whether to retroactively modify the

child support award.

CIVIL PROCEDURE

Lali v. Shivani, 2016 WL 7094156 (App. Div. 2016). Opinion by Judge Lihotz, P.J.A.D,

Issue: Did the Family Part err by exercising continuous exclusive jurisdiction pursuant to the

Uniform Interstate Family Support Act, NJ.S.A. 2A:4-10,124 to 30.301, by denying

reconsideration of an order modifying Defendant's child support obligation when Defendant

relocated to North Carolina, the child's home state, and none of the parties continued to live in

New Jersey.

Holding: No, the Family Part acted within its authority to exercise continuing exclusive

jurisdiction pursuant to the Uniform Interstate Family Support Act, permitting the modification

of the previously issued child support order.

The parties were divorced and Plaintiff was awarded sole legal and residential

custody of their only child. Defendant had limited parenting time. In 2013, Plaintiff secured

employment in North Carolina and sought to relocate there with the child. Plaintiff s application

#8415772.1 - 1 6 -

was granted, an order was entered delineating modified parenting time in New Jersey and North

Carolina, and child support was reduced as a result of the cost of exercising out of state parenting

time. Later, Defendant also relocated to North Carolina, As a result, an order was entered

modifying Defendant's parenting time and designating holidays and vacation time. Both parties

filed a motion for reconsideration. The trial judge both agreed and denied certain challenges, and

modified child support since inter-state visitation was no longer an issue and Defendant's

parenting time had increased. The overall effect was an increase in Defendant's child support

obligation.

An order was entered on October 15, 2015, stating that the litigation in New

Jersey had concluded and that the District of North Carolina now accepted jurisdiction of the

case since North Carolina was the home state of the child, as well as the residence of both

parties. Then, on October 16, 2014 an order was entered memorializing the child support terms,

providing an effective date for the modified child support, and reiterating that North Carolina

was to have jurisdiction of the matter. Defendant then filed a letter rejecting the October 15lh

order, challenging the child support calculation and the New Jersey Family Part's jurisdiction.

Since Defendant maintained that New Jersey did not have jurisdiction, she stated that the

October 15th and October 17lh orders should be vacated. Defendant filed a motion for

reconsideration, which was denied and Defendant appealed.

The Appellate Division concluded that New Jersey had both personal and subject

matter jurisdiction. Since when the post-judgment proceedings began, Defendant resided in New

Jersey and New Jersey issued the controlling child support order, continued, exclusive

jurisdiction to modify the child support order remained in New Jersey pursuant to N.J.S.A.

2A:4-30.133. In this case. Defendant revealed she relocated to North Carolina after the parties

had already appeared and participated in post-judgment matters with the court. In fact, the

Appellate Division stated that "by filing motions regarding parenting time and child support, and

#8415772.1 -17-

appearing at the hearing, both parties consented to New Jersey's continued exercise of

jurisdiction, as no new action was initiated in North Carolina." Under the Uniform Interstate

Family Support Act provisions effective at that time, the parties were to file the required

consents to allow North Carolina to attain jurisdiction. Since the parties failed to do so, the New

Jersey Family Part properly exercised continued jurisdiction.

Recognizing that the Uniform Interstate Family Support Act was recently

amended, the Appellate Division clarified that the case was to be analyzed under the prior act,

since that version of the act was in effect when the orders under review were entered. However,

the amendments to the Uniform Interstate Family Support Act do not have effect on this case.

The relevant amendment provides "when all parties have left the state. New Jersey may not

modify a child support order, even though it issued the controlling order, if all individual parties

file written consent in New Jersey stating another tribunal, with personal jurisdiction over one

party or which is the child's home state, should modify the controlling order. N.J.S.A. 2A:4

30,133(b)(1)." As previously stated, the Defendant did not reveal she had relocated to North

Carolina until after several post-judgment motions had been filed. Further, none of the parties

filed the required consent to North Carolina having jurisdiction in the matter.

Matison v. Lisnyansky, 443 N.J. Super. 549 (App. Div. 2016). Opinion by Judge Kobiitz,

J A.D.

Issue: Does the fugitive disentitlement doctrine bar a defendant from appealing a default

judgment award of palimony and custody where the defendant left the country where there was

an outstanding bench warrant for nonpayment of child support?

Holding; Yes. The Appellate Division dismissed the appeal holding that the fugitive

disentitlement doctrine was applicable. Here, defendant was ordered to pay child support and had

a bench warrant issued against him pending payment of arrears after he stopped supporting his

children and voluntarily remained outside of the United States. After numerous requests for

#8415772.1 - 1 8 -

n adjournments, the defendant then failed to appear. Consequently, default judgment was entered

against him. The trial court proceeded to hold a trial regarding plaintiffs prayers for relief. The

trial court entered default judgment awarding palimony and custody to the plaintiff. Defendant

appealed this judgment, while still remaining outside of the United States. As a result the court

dismissed the appeal and stated that a defendant is not afforded the protection of the judicial

system where he intentionally remains outside of the country to avoid arrest.

CUSTODY

Bisbing v. Bisbing, 445 N.J. Super. 207 (App. Div. 2016). Opinion by Judge Koblitz, J.A.D.

Issue; Where the MSA provided for a non-relocation provision did the court err in allowing the

Plaintiff to relocate with the parties' children without first holding a plenary hearing?

Holding: Yes, the Appellate Court reversed and remanded for a plenary hearing.

The parties agreed to joint legal custody in an MSA, alternate weekends and one night during the

week, and that the Plaintiff would have primary residential custody so long as she did not

relocate out of the state. Both parties agreed to live within 20 miles of the other in New Jersey.

The MSA stated that "[njeither party shall permanently relocate with the Children from the State

of New Jersey without the prior written consent of the other." Nine months after the divorce.

Plaintiff informed Defendant that she intended to marry a resident of Utah and relocate to Utah

with the children. Plaintiff has been dating her fiance for four months when the MSA was signed.

Defendant objected to her moving with the children. Plaintiff filed a motion to relocate with the

children, which was granted without a plenary hearing. The Plaintiff remarried and she and the i

children relocated to Utah.

The Appellate Court reasoned that a plenary hearing was necessary to determine

whether the MSA, as to non-removal, was negotiated in bad faith. If it was negotiated in bad

faith, the court should utilize a best interests test and not Baures v. Lewis, 167 N.J. 91 (2001).

However, if bad faith is not demonstrated and Plaintiff can "prove a substantial unanticipated

#8415772.1 -19-

change in circumstances[,] warranting avoidance of the agreed-upon non-relocation provision[,]"'

then a Baures analysis should be used. If the MSA was negotiated in good faith and the Plaintiff

does not prove a substantial unanticipated change in circumstances, the court should conduct a

best interest analysis.

The Appellate Court discussed the need for a plenary hearing as a result of the

suspicious nine-month proximity between the date when Plaintiff settled the divorce and the

motion for relocation. Defendant claims that Plaintiff could have negotiated the MSA in bad

faith in order to use the Baures framework and therefore secure a more favorable result with

regard to relocation with the children. The Baures procedure requires that where one parent is

designated as the primary caretaker a two-part test is used to determine whether or not that parent

can relocate with the children. First, the moving party must demonstrate that there is a good faith i

reason for the move, and second, that the move is not contrary to the children's best interests.

However, central to the Baures analysis is giving deference to any agreements by the parties

regarding custody in addition to considering the primary caretaker's right to happiness.

Defendant claims that he would not have consented to the settlement agreement had he known a

relocation would follow. As a result, the Appellate Division, citing to Shea v. Shea 384 N.J.

Super. 266, 271-272 (Ch. Div. 2005), stated that Defendant was entitled to a plenary hearing to

determine whether or not Plaintiff entered into the MSA in order to utilize the more favorable

Baures relocation procedures.

The court discussed the history of upholding consensual agreements absent a

demonstration of changed circumstances. Quoting the language of the MSA, the court opined

that the intent of the agreement was that the children would remain in New Jersey and that

Plaintiff voluntarily surrendered her right to relocate. Nevertheless, the court held that if the

MSA was negotiated in good faith and Plaintiff can demonstrate a substantial and unanticipated

change in circumstances, the court should apply the Baures factors.

#8415772.1 -20-

D.G. et al. v. K.S., 444 N.J. Super. 423 (Super. Ct. 2015). Opinion by Judge Wauters, J.S.C.

Issue #1: Is a non-biological third party who has cared for a child throughout the child's life as a

result of an agreement a psychological parent?

Holding: Yes. In this case an agreement between three friends, to conceive and care for a child

was created. Defendant was the biological mother, Plaintiffs were a same-sex couple, one of

whom was the biological father. For several years the arrangement between the three parties

worked and each party functioned as a parent. Defendant, the biological mother, told Plaintiffs

she wished to relocate with the child to California. Plaintiffs, opposed this move and filed a

complaint for legal and physical custody of the child, parenting time, and asserted that S.H., the

non-biological partner, was a psychological and legal parent. The court concluded that S.H. was

a psychological and legal parent. The court found that the four element test, established in V.C.

v. M.J.B., 163 N.J. 200 (2000) to determine if a third party is a psychological parent, was met:

Plaintiff is married to the child's biological father, D.G.; the Plaintiffs and Defendant mutually

agreed to conceive and raise the child between them; and that the relationship between the child

and S.H. was fostered by D.G. and the Defendant since the child was born. The court also looked

at factors such as the child staying in S.H.'s household, S.H. assuming obligations of parenthood

such as taking responsibility for childcare, education and financial support and the fact that the

child refers to him as "Papa." The court concluded that S.H. and the child formed a significant

bond through extensive parenting time over six years and that S.H. was a legal and psychological

parent.

Issue #2: What custody arrangement is in the best interest of the child where a same-sex couple

and the biological mother entered into an agreement to conceive and jointly care for a child

thereby creating a ''tri-parenting" arrangement that is no longer functional since the mother

wishes to relocate?

#8415772.1 - 2 1 -

Holding #2: The court held that joint custody was in the child's best interest under N.J.S.A.

9:2-4. In determining what was in the best interest of the child the court considered two expert

opinions. The court made determinations for each of the factors under N.J.S.A. 9:2-4(c). First,

the court found that the Plaintiffs were more likely to communicate effectively and foster a

relationship between the child and all three parents. Second, the court found that all of the

parents were willing and fit to have custody of the child but that the Defendant demonstrated a

tendency to deny parenting time to Plaintiffs. Third, the court found that the child had a good

relationship with all three parents. Fourth, the court concluded that Plaintiffs were more able to

provide the child with a stable home environment because of their more consistent lifestyle.

involvement in the child's schooling, their religious influence on the child, the involvement of

the Plaintiffs' parents in the child's life, and the Plaintiffs' flexible work and financial status.

Fifth, the court analyzed the child's schooling options and concluded that, as a result of the

child's learning disabilities, the school that the child would attend under the Plaintiffs' care, was

a better opportunity for the child than could be provided under Defendant's care.

Based on all of the aforementioned conclusions, the court held that Plaintiffs and

Defendant were to have equal legal and residential custody of the child, joint legal custody to all

three parents with the child living with the Plaintiffs during the week and with the Defendant on

the weekends. Defendant's motion to relocate was denied as it was in the best interest of the

child to have joint legal and residential custody among all three parents.

Issue #3: What is the legal standard for removal, best interest of the child or Baures if a de facto.

shared parenting arrangement was in place?

Holding #3: The standard is best interest because it is a change in the joint custodial

arrangement.

#8415772.1 -22-

Innes v. Marzano-Lesncvich, 224 N.J. 584 (2016). Opinion by Justice Solomon joined by Chief

Justice Rabner and Justice Albin. Justice LaVecchia filed a separate, dissenting opinion, in which

Judge Cuff (temporarily assigned) joins. Justices Patterson and Fernandez-Vina did not

participate.

Issue: May a prevailing party in an action against an adverse attorney, for fiduciary malfeasance.

recover attorney's fees?

Holding: Yes. The Court held that defendant attorneys may be responsible for attorney's fees to

the adverse litigant if they intentionally breached their fiduciary obligation. Peter Innes and

Maria Carrascosa were involved in a bitter divorce and custody matter. Maria was represented by

Marzano-Lesnevich, Esq. The parties' daughter had dual citizenship in the United States and

Spain. Defendant Marzano-Lesnevich, Esq. was given possession of the daughter's passport as

trustee and escrow agent. Marzano-Lesnevich gave Maria her daughter's passport and her client

removed the child to Spain on January 13, 2005.

Following the daughter's removal to Spain, Plaintiff, Peter Innes, filed a

complaint against the Marzano-Lesnevich in the Law Division for the improper release of the

daughter's passport. Defendants were found to have been negligent in releasing the daughter's

passport and damagers were awarded to the husband and the daughter. The Supreme Court

addressed "whether [Marzano-Lesnevich] can be liable for attorney's fees as consequential

damages to a non-client under Saffer v. Willoughby, 143 N.J. 256 (1996)." The Court held that

Defendant attorneys were liable for attorney's fees as a result of their intentional breach of their

fiduciary duty to husband by giving Maria their daughter's passport without the husband's

consent. The Court stated that the Saffer court held that a prevailing plaintiff may be awarded

counsel fees in a malpractice action when such fees are "consequential damages that are

proximately related to the malpractice." Fee-shifting is especially important in cases of attorney

misconduct. Although the Court has never previously held that a non-client is entitled to fee-

#8415772.1 -23-

shifting counsel fees, there is authority which has awarded a beneficiary counsel fees where a

fiduciary's misconduct intentionally inflicted damage to the beneficiary. Here, the Defendant

attorneys were fiduciaries for both parties and they breached their duty by improperly releasing

the daughter's passport. However, the jury found that Defendant attorney's misconduct was

negligent, but did not determine if Defendant attorneys intentionally violated their fiduciary duty.

As a result, the matter was remanded for further findings.

DOMESTIC VIOLENCE

A.M.C. V. P.B., 148 A.3d 754 (App. Div. 2016). Opinion by Judge Fuentes, P.J.A.D.

Issue: Whether the Trial Court erred when it denied plaintiff a final domestic violence

restraining order ("FRO") pursuant to N.J.S.A. 2C;25-17 to -35, although it determined that the

defendant had physically assaulted the plaintiff on two separate occasions.

Holding: Yes. The Trial Court misapplied the two-prong standard found in Silver v. Silver, 387

N.J. Super. 112, 125-27 (2006). The Trial Court failed to consider: "(1) the inherently violent

nature of the predicate acts defendant committed against plaintiff over a three-week period; (2)

that defendant physically assaulted plaintiff to prevent her from leaving the marital residence and

seeking refuge in a women's shelter; and (3) the parties' history of domestic violence, which

included both violent behavior and threats of further violence." It was erroneous for the court to

conclude that it was unlikely that the parties would interact in the future because it was a short

marriage and there were no children. The court held that because the predicate act here was

inherently violent, the need to protect the plaintiff from suffering further abuse was "self-

evident" and clearly in her best interest.

#8415772,1 -24-

In the Matter of the Application of the State of New Jersey for the Forfeiture of Personal

Weapons and Firearms Identification Card Belonging to F.M., 224 N.J. 487 (2016). Justice

Solomon Delivered the Opinion of the Court.

Issue: Should F.M.'s personal firearm and firearms purchaser identification card seized pursuant

to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 be forfeited

pursuant to N.J.SA. 2C:58-3(c)(5) based on the State's claim that rearming P.M. "would not be

in interest of the public health, safety or welfare."

Holding: Yes, the Court held that the return of F.M.'s firearm and firearms purchaser

identification card was not in the best interest of public health, safety or welfare.

P.M. and G.M. were separated, and P.M. came to the marital residence to visit the

children. However, G.M. claimed that P.M. did not have visitation that day, and held on to the

rear of P.M.'s car to prevent him from leaving. The Morristown Police Department arrived and

observed P.M. grab G.M. off of his vehicle and "throw" her face into a four-foot stone wall. The

Police Office then observed injuries on G.M.'s forearm and arrested P.M. for domestic violence

and simple assault. After this incident, G.M. obtained a temporary restraining order (PRO).

P.M.'s personal firearm and ankle knife were seized by his employer, the Roseland Police

Department. After trial, the Family Part held that there was insufficient evidence to warrant an

PRO.

The State proceeded to file a motion to have F.M, forfeit his personal weapon

and identification card. After oral argument and an evidentiary hearing the Family Part judge

denied the State's motion. The Appellate Division affirmed the Family Part judge's conclusion.

The Supreme Court reversed and remanded to the Family Part for the entry of an

order forfeiting P.M.'s weapon and firearms purchaser identification card. The Supreme Court

held that the Family Part used the incorrect legal standard in reaching its conclusions that the

State did not prove that F.M.'s forfeiture of his weapon and firearms identification card was

#8415772.1 -25-

warranted. In addition, the Supreme Court held that the Family Part's conclusions were not

supported by credible evidence. The Supreme Court analyzed N.J.S.A. 2C:58-3(c) as providing a

limitation on the issuance of firearms identification cards and permits if an individual is subject

to certain disabilities; one of those disabilities is any instance in which the issuance of a permit

and firearms identification card would be contrary to the public interest. Further, if an individual

is later found, by a preponderance of the evidence, to be unfit to possess a firearms permit or

identification card, forfeiture may be warranted. The Supreme Court held that the Family Part

Judge incorrectly stated that the State had to demonstrate "more than just a showing that some

danger might exist." Rather, the State only needed to show by a preponderance of the evidence

that F.M.'s possession of a firearms and firearm identification card was contrary to the public

health, safety or welfare. The Supreme Court further reiterated that the Domestic Violence Act

was "intended to assure victims of domestic violence the maximum protection from abuse the

law can provide." Therefore, the fact that the domestic violence complaint was dismissed has no

bearing on whether or not F.M.'s weapon and firearms identification card should be forfeited.

Lastly, the Family Part judge erred by concluding that the State needed to demonstrate that F.M.

suffered from a specific, diagnosable disorder to be required to forfeit his weapons pursuant to

N.J.S.A. 2C:58-3(c)f5).

J.S. v. D.S.. 2016 WL 7048807 (Super. Ct. App. Div.). Opinion by Judge Fisher, P.J.A.D.

Issue: Did the trial judge err by entering a Final Restraining Order that the parties consented to

without taking testimony, determining that an act of domestic violence occurred, or concluding

that the Final Restraining Order was necessary to protect Plaintiff from Defendant?

Holding: Yes, the Appellate Division held that a Final Restraining Order may not be consented

to or entered without a factual basis. As such, the existing FRO was vacated, the TRO was

reinstated and the matter was remanded to determine whether a Final Restraining Order was

warranted.

#8415772.1 -26-

Plaintiff filed a Domestic Violence Complaint pursuant to the Prevention of

Domestic Violence Act, N.J.S.A 2C:25-17 TO -35, and obtained a Temporary Restraining Order

(TRO) against Defendant. At the hearing to determine if a Final Restraining Order (FRO) was

warranted. Plaintiffs counsel advised the trial judge that the parties had reached an agreement

whereby Defendant consented to an FRO in exchange for Plaintiffs consent that Defendant

would maintain exclusive possession of the marital home. The judge then questioned both

Plaintiff and Defendant under oath whether they understood and voluntarily consented to the

agreement. The judge then entered the FRO.

Defendant appealed the FRO on the grounds that the judge entered it without

taking the requisite testimony regarding the alleged act of domestic violence, without finding an

act of domestic violence occurred, and without concluding that an FRO was necessary to protect

Plaintiff from Defendant. Although the parties later submitted a stipulation of dismissal, the

Appellate Division considered the appeal as it raised the issue to whether or not the FRO was

void ab initio.

The Appellate Division acknowledged the over-arching public policy of

encouraging settlement rather than litigation. However, the court still maintains the responsibility

of ensuring remediation of any systematic failures. The Appellate Division also acknowledged

the common practice of plaintiffs seeking dismissal of domestic violence actions before or after

the entry of an FRO. When a plaintiff seeks to dismiss a domestic violence action, the court then

must examine the plaintiff s reasons for seeking dismissal including whether or not plaintiff is

knowingly and freely seeking dismissal. This inquiry is to make sure that, among other things.

"entry, continuation, or dismissal of an FRO" is not done "as a bargaining chip in the settlement

of other disputes." Here, the trial court did not make the proper inquiry as to the merits of the

FRO, or the reasons behind the agreement to enter an FRO. The Appellate Divisions stated "[a]

domestic violence final restraining order may not be entered by consent or without factual

#8415772.1 -27-

foundation." Therefore, the Appellate Division concluded that the FRO was impermissibly

entered and the matter was remanded for a final hearing.

DIVISION OF CHILD PROTECTION & PERMANENCY

New Jersey Division of Child Protection and Permanency v. G.S. and K.S., 2016 WL

6872983 (App. Div. 2016). Opinion by Judge Sabatino, P.J.A.D.

Issue #1: May separate staff attorneys from the Public Defender's Office of Parental

Representation ("OPR") represent each parent in Title 9 and Title 30 litigation?

Holding #1; Yes.

The Appellate Division held that "the law does not categorically prohibit or even

presumptively disfavor staff attorneys working out of the same OPR regional office from

separately defending individual parents in a Title 9 or Title 30 case." The court stated that

parents facing Title 9 and Title 30 actions have a constitutional and statutory right to counsel

which needs to be protected. Parents have the right to effective assistance of counsel which

includes an attorney's undivided loyalty and representation absent any conflicting interest.

Multiple representation may create a conflict of interest triggering concern when there "is a

manifest particularized divergence between the clients' factual contentions or legal assertions, or

Because of the risks associated with the remedies they wish their counsel to advocate."

representing clients with conflicting interests, N.J. R, Prof. Conduct 1,7(a)(1) specifically

prohibits lawyers from representing multiple clients where the clients have directly conflicting

interests or interests that materially limit the lawyer's advocacy.

The court held that "there is no per se ethical prohibition upon staff attorneys

from within the same Office of Parental Representation regional office representing different

parents within the same case, provided that appropriate screening measures are scrupulously

implanted." In addition, the court stated that OPR already has appropriately designed procedures

to safeguard client confidences and assure that confidentiality of all client communications and

#8415772,1 -28-

attorney work product was maintained. However, the court advised that the protocol should be

expanded to include the safeguarding of digital communications and electronically stored

information.

Issue #2: When an actual or potential conflict between parents arises in a Title 9 or Title 30

action may a parent waive the conflict?

Holding #2: Yes, the court held that parents may waive a conflict so long as there is informed

consent based on full disclosure and consultation with counsel.

New Jersey Division of Child Protection and Permanency v. J.D, J.R. and J.G., In the

Matter of J.D. Ill, 148 A.3d 128 (App. Div. 2016). Opinion by Judge Carroll, J.A.D.

Issue: Did the court err in concluding, based on hearsay documentary evidence, that a father

abused or neglected his ten year old son when he left him unattended in a vehicle while he

proceeded to become intoxicated in a bar?

Holding: No. The court held that the record, which was based on redacted police reports and

investigative summaries prepared by the Division of Child Protection and Permanency,

supported the judge's finding that defendant abused or neglected his son. Although the

documentary evidence contained embedded hearsay, the statements found in the investigative

summaries and police reports were nonetheless admissible both through evidentiary exceptions

to hearsay and the fact that the father's counsel agreed to the admission of the documents into

evidence. The court pointed out that the father both agreed to the documents being admitted into

evidence as well as agreeing to a trial based solely on the papers. However, the court cautioned

against the inherent danger of adjudicating contested trials based solely on documentary

evidence and impressed the importance of the rules of evidence during fact-finding hearings

which bear upon the welfare of a child

#8415772.1 -29-

New Jersey Division of Child Protection & Permanency v. K.G.. 445 N.J. Super. 324 (App.

Div. 2016). Opinion by Judge Reisner, P.J.A.D.

Issue: Was the trial judge's finding that the mother abused or neglected her ten-month-old baby

by leaving the baby with her nineteen-year-old son, who is cognitively impaired, an abuse of

discretion?

Holding: No, The Appellate Division Affirmed the trial judge's determination that the mother

abused or neglected her 10-month old baby by leaving the child with her older son who was not

capable of caring for him, The Division investigator determined that the older son had "a major

mental disability" and prepared a safety protection plan which required the mother to secure

another babysitter. The mother had agreed to the safety protection plan.

Several experts determined that the older child had substantial cognitive

impairments and was not capable to care for the child. The trial judge agreed and found that the

older child "would not be able to handle an emergency situation, should one arise while he was

caring for [the baby], and that [the mother] exposed the baby to a serious, unjustified risk by

leaving [the older child] alone with the baby for an extended period of time." In addition, the

trial judge concluded that the mother was not a credible witness and the one expert who relied on

mother's inaccurate description of events, was also not credible.

On appeal, the mother raised several issues including the trial court's finding of

gross negligence and alleging that the Division failed to meet its burden of proof absent any

actual harm. The Appellate Division affirmed the trial judge's findings stating the older child's

incapacity was clearly demonstrated through several experts and other witnesses' testimony. In

addition, the Appellate Division reiterated that the mother did not leave the baby with the older

child on just one occasion, rather she continuously left the baby under the older child's sole

supervision. As a result, the mother was found to be grossly negligent. Although the court agreed

with the mother that parents must make judgment calls when determining who is a fit child care

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provider, the court stated that the mother's decision to leave her infant with the older child, who

functioned on a seven-year-old level, was not exercising the minimum degree of care as required

by law. The mother also claimed that as a result of the absence of actual harm to the baby, her

name should not be added to the Central Registry pursuant to NJ.S.A. 9:6-8,11. However, the

Appellate Division rejected this interpretation of the statute, relying on Department of Children

& Families v. E.D.-O.. 223 NJ, 166 (2015).

New Jersey Division of Protection and Permanency v. K.M., 444 N.J. Super. 325 (App. Div.

2016). Opinion by Judge Fuentes, P.J.A.D,

Issue: Did the biological mother, K.M., abuse or neglect her child within the meaning of I

NJ.S.A. 9:6-8.21(c)(4)(a), by failing to disclose to medical staff that she used opioids during her

pregnancy?

Holding: Yes. The Appellate Division affirmed the Family Part order that she abused or

neglected her child, G.G., within the meaning of NJ.S.A. 9:6-8.21(c)(4)(a). Immediately after

G.G. was born he exhibited no signs of abnormalities. However, within three days of birth the

baby was admitted to the neonatal intensive care unit ("NICU") for respiratory distress and signs

of opioid withdrawal. Because G.G.'s symptoms were consistent with opioid withdrawal, the

Division of Child Protection and Permanency ("DCPP") was notified. A caseworker from DCPP

spoke to K.M. who admitted to being addicted to Oxycodone and selling Roxicodone prior to

pregnancy. In addition, K.M. admitted to taking "Suboxone two to three times per week and

smoking marijuana during her pregnancy." As a result, NICU staff began to treat G.G. with

morphine, and after 22 days he was released.

Quoting G.S. v. Dep't of Human Servs.. 157 N.J. 161, 182 (1999), the Appellate

Division reiterated that in determining whether the child was abused or neglected the case should

"focus on the harm to child and whether that harm could have been prevented had the guardian

performed some act to remedy the situation." Since K.M. failed to disclose during delivery and

#8415772.1 -31-

for three days thereafter that she used Suboxone during her pregnancy, she delayed treatment of

G.G. and "caused her infant son needless suffering." The Court held that K.M.'s failure to timely

disclose her use of Suboxone was grossly negligent conduct, and therefore she had neglected

G.G. within the meaning of N.J.S.A. 9:6-8.21(c)(4)(a).

New Jersey Division of Child Protection and Permanency v. K.S. 445 N.J. Super. 384

(App. Div. 2016). Opinion by Judge Koblitz, J.A.D.

Issue: Did the trial judge's refusal to re-open the record shortly after a one-day trial to terminate

parental rights constitute an abuse of discretion and violation of procedural due process?

Holding: Yes. Here, K.S. did not attend the trial to determine whether or not her parental rights

would be terminated and therefore was not given an opportunity to testify. K.S. attended the trial

date ten days later where the judge was to render an opinion. K.S. asked the trial judge to

stated that she had mistakenly thought the trial was "present evidence on her behalf and

scheduled for a different day. The trial court judge denied K.S.'s request to re-open the case

relying on her history of failing to attend court proceedings and that K.S. had sufficient notice of

the correct date.

The Appellate Division reversed and remanded, holding that K.S. has a

constitutional right to procedural due process which was denied resulting in K.S.'s relationship

with her children to be permanently severed. The court noted a parent's fundamental right to

raise his or children and the State's obligation to provide parents with fair proceedings when

seeking to destroy familial bonds. Using the balancing test from Mathews v. Eldridge, 424 U.S.

319, 334-445 (1976), the court found: "the private interest in maintaining some relationship with

his or her children" is paramount, and both parent's and children's rights should be

accommodated when possible; the risk of the court hearing a deficient narrative absent K.S.'s

testimony was probable, and the children's interests were better served with all evidence being

presented; and it would not have been inefficient to re-open the case since it was very soon after

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the proceeding, there was no jury and the judge had not rendered an opinion. The Appellate

Division also noted that the trial judge did not consider K.S.'s history of substance abuse,

cognitive impairments, mental illness, and that she was a victim of domestic violence and opined

that these unfortunate circumstances could have contributed to K.S.'s failure to appear.

New Jersey Division of Child Protection and Permanency v. N.T., 445 N.J. Super. 478 (App

Div. 2016). Opinion by Judge Leone, J.A.D.

Issue: Did the trial court err by substantially relying on and admitting hearsay evidence

including a Division caseworker report and a psychological evaluation of the child?

Holding: Yes, the court held that the trial court improperly based its decision on hearsay

evidence. The court held that a Division report is admissible through the business record

exception under N.J.R.E 803(C)(6). However, hearsay within the report must also be found

admissible under the requirements of N.J.S.A 9:6-8.46(a)(3), Rule 5:12-4(d), and the standard

established in In re Guardianship of Cope. 106 N.J. Super. 336 (App. Div. 1969). Specifically,

statements within Division reports that are from Division personnel or affiliated staff are

admissible so long as their statements represent the individual's "first-hand factual observations.

ai a time reasonable contemporaneous to the facts they relate, and in the usual course of their

duties." Here the court found that the Mother's statements within the report were admissible

hearsay evidence pursuant to N.J.R.E 803(c)(25), the statements against interest exception.

However, the psychological report of the child was inadmissible hearsay, The court found that

since the psychologist did not testify, the trial court was required to establish the criteria of

N.J.R.E 808, which requires hearsay expert opinions or reports to be trustworthy and not too

complex. Since the trial court substantially relied on this report absent these findings, the court

vacated the judgment and remanded for a new fact-finding hearing.

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New Jersey Division of Child Protection and Permanency v. S.G.. 2016 WL 7242759 (App.

Div. 2016). Opinion by Judge Gooden Brown, J.S.C. (temporarily assigned).

Issue: Did the trial court err in concluding that a mother abused and neglected her daughter

without hearing testimony during the fact finding hearing and instead relying solely on redacted

Division and police reports?

Holding: Yes, the court held that the trial court failed to "fully engage in its duty as fact-finder."

The Division concluded that the mother had abused or neglect her daughter within the meaning

of N.J.S.A. 9:6-8.21 based solely on the evidence of four documents; two Investigation

Summaries, a police report, and a court report. Because there were numerous material facts in

dispute, the court stated that taking testimony and observe witnesses first-hand was imperative.

Absent testimony, the court concluded that the Division failed to establish the required proof that

the mother abused or neglected her daughter. The finding of abuse and neglect was vacated and

the case was remanded for a testimonial fact-finding hearing.

State of New Jersey in the Interest of A.R.. 149 A.3d 297 (App. Div. 2016), Opinion by Judge

Sabatino, P.J.A.D,

Issue: Did the trial court err by permitting a seven-year old boy's hearsay statements under the

"tender years exception" N.J.R.E. 803(c)(27) and N.J.R.E. 601?

Holding: Yes. The Court concluded that admitting the child's statements were testimonial under

the Confrontation Clause and therefore inadmissible. The Appellant, a fourteen-year-old

juvenile, allegedly sexually touched a seven-year-old boy while on a bus returning from summer

camp. After the incident, the victim blurted out to his mother's cousin, that Appellant had

touched him on the bus. In an interview with a detective over two weeks later, the victim

repeated the accusation and demonstrated what had happened with dolls.

#8415772.1 -34-

The trial court ruled that both statements made by the victim were admissible

pursuant to the "tender years" hearsay exception, N.J.R.E. 803(c)(27) . The trial court then

determined that the child was not a competent witness under N.J.R.E. 601.

The Appellate Division held that the child's statements to the detective were

testimonial in nature, and thus inadmissible under the Confrontation Clause and Crawford v.

Washington 541 U.S. 36 (2004). Since the child's statements to the detective were made in

response to questions designed to elicit evidence, those statements were clearly testimonial.

However, the child's statement to his mother's cousin after getting off the bus was admissible

since it was not testimonial in nature. i

EQUITABLE DISTRIBUTION

Thietne v. Aucoin-Thieme, 224 N.J. 245 (2016). Opinion by Justice Patterson.

Issue #1: Does the equitable distribution statute, N.J.S.A. 2A:34-23(b) authorize the distribution

of a closing bonus received after divorce, but earned during the marriage?

Holding #1: Yes. The Supreme Court held that the equitable distribution statute authorized the

distribution of the "Closing Bonus" to the extent that it represented funds earned during the

parties' marriage.

Plaintiff and Defendant were married for fourteen months and had a child

together. They cohabitate for eight years prior to their marriage. During the couple's relationship.

Plaintiff worked for a biometrics consulting firm and Defendant cared for their daughter, their

home, and helped manage their rental properties. Throughout his employment, Plaintiff held no

ownership interest in the biometrics firm. However, it was made clear to Plaintiff that should the

firm be sold, he would be compensated for his contributions to the firm's success. The couple

filed for divorce after fourteen months of marriage. Three months after the entry of the Judgment

of Divorce, Plaintiff received a one-time "Closing Bonus" of $2,250,000. Plaintiff did not inform

#8415772.1 -35-

Defendant of this bonus, but unknowingly deposited $200,000 into a joint bank account with

Defendant. After discovering the funds. Defendant withdrew the money.

The trial judge determined that the Closing Bonus was representative of his work

throughout his employment with biometrics firm. As such, the trial judge found that Defendant

was entitled to the portion of the bonus found to have been earned during the marriage, $30,288,

Since Defendant had already withdrawn $200,000, she was ordered to return the difference. On

Appeal, Defendant claimed that she was entitled to a share of the bonus equal to the period of

time that her and Plaintiff cohabitated in addition to the time they were married. In addition,

Defendant asserted that to not receive this share, would result in Plaintiffs unjust enrichment.

The Appellate Division affirmed the trial court's ruling.

The Supreme Court held that under the equitable distribution statute, N.J.S.A.

2A;34-23(h), Defendant was entitled to the portion of the Closing Bonus earned during the

marriage, but was not entitled to a portion of the Closing Bonus that was earned during the

period of cohabitation since the equitable distribution statute does not apply to couple's who

cohabitate. Further, the Supreme Court stated that to treat funds acquired prior to marriage as

marital asset would "contravene the plain language of N.J.S.A. 2A:34-23(h)."

Issue #2: Does Plaintiff s receipt of $2,219,712.00 of his Closing Bonus three months after

divorce qualify as unjust enrichment? I

Holding #2: Yes, the Supreme Court held that the nominal share of the closing bonus Defendant

would receive pursuant to the equitable distribution statute would result in an unjust enrichment

to Plaintiff.

In order to prove unjust enrichment. Defendant must demonstrate that Plaintiff

received a benefit which would be unjust for him to retain without compensating Defendant. The

Supreme Court held that the exceptional circumstances and facts of the case would result in

Plaintiffs unjust enrichment. As such, the Supreme Court applied an equitable remedy and

#8415772,1 -36-

ordered that the poition of the Closing Bonus earned during the period of cohabitation to be held

in constructive trust. The matter was remanded to determine Plaintiff s share of the bonus.

C. RAM) PAH SI iT VISITATION

Major v. Maguire, 224 N..J. 1 (2016). Opinion by Justice Patterson, joined by Chief Justice

Rabner and Justices LaVecchia, Solomon and Cuff (temporarily assigned). Justices Albin and

Fernandez-Vina did not participate.

Issue: What procedures must a Family Part judge fo'low to determine grandparents' visitation

rights?

Holding: Pursuant to Moriarty v. Bradt, 177 N.J. 84 (2003), grandparents seeking visitation over

a parent s objection under N.J.S, A. 9:2-7.1 must establish, by a preponderance of the evidence,

that visitation is necessary to avoid harm to the child. Historically, grandparent visitation cases

were proceeded as summary actions using standard pleading forms and without discovery, often

depriving grandparents the opportunity to meet their burden under Moriarty. However, the new

case management procedures of R. 5:5'7(c) provide a framework foi proceeding with

grandparent visitation cases in a non-summary fashion if the party successfully demonstrates that

the matter is complex.

The Supreme Court held that when a grandparent visitation case is complex, the

filing party should file a non •conforming complaint to make a prima facie showing of harm, and

the other party should response by identifying the issues and disputed facts. The parties are to

cooperate in coordinating a workable discovery schedule.

Here, the paternal grandparents commenced an action for visitation of theii six

year old granddaughter under N.J.G.A: 9:2-7.1 after the child's father died based on the mother's

constraints on their visitation. The trial court held that the complaint failed to allege the requisite

particularized harm and therefore dismissed the complaint. The Supreme Court affirmed the

Appellate Division's ruling that the trial court erred in dismissing the plaintiff s complaint. The

#8^15772.1 -37-

Court concluded that the plaintiffs' allegations that they were involved with the child's home,

school, and extracurricular life before their son's (the child's father) death were sufficient to

raise a prima facie case of harm. Although death of a parent does not per se show harm, it is an

important factor. The Court also found that the matter should be proceeded with as complex and

remanded the matter to the trial court to proceed under the case management procedures of R.

5:5-7(c). The court suggested that a case management conference should address the following:

1) the nature of the harm to the child; 2) the possibility of settlement through mediation; 3)

lite relief is warranted; 4) whether the factors identified in N.J.S.A. whether pendente

9:207.1(b)(1) through (8) can be stipulated; 5) the extent and scope of discovery which should

minimize the intrusion of privacy of the child and family; 6) whether expert reports are necessary

and if so the time frame for reports and possible depositions of experts; 7) protocols for motions

and; 8) end dates for discovery, motions and fixing trial. The court also noted that litigation may

commence even if the grandparents claim that the voluntary visitation schedule is inadequate.

Slawinski v. Nicholas. 2016 WL 7094152 (App. Div. 2016). Opinion by Judge Ostrer, J.A.D.

Issue: Did the trial court err by holding that the Defendant mother was entitled to unilaterally

terminate grandparent visitation, established through a consent order, since there was no proof by

the Plaintiff Grandmother that visitation was necessary to avoid harm to the child?

Holding; Yes, the Appellate Division held that the trial court erred and reversed and remanded

the matter. The mother had the burden to prove changed circumstances and the absence of harm

to the child if visitation is terminated.

Defendant mother had sole custody of the child, Lilly. In January. 2015

Defendant mother and Plaintiff grandparent entered into a consent order establishing grandparent

visitation with Lilly. However, after a few months the mother claimed that the visitation was not

working, citing to claims of improper hygiene during the visits as well as a change in Lilly's

behavior following the visits. The mother appeared and claimed that she did not have the burden

#8415772.1 -38-

to establish anything beyond the fact that visitation was not working since it was entered into by

consent. The grandmother argued that under the Lepis framework there was insufficient evidence

to establish a prima facie case of changed circumstances. The trial judge erroneously concluded

that the mother "was entitled to terminate visitation unless [the grandmother] could demonstrate,

by a preponderance of the evidence, 'that denial of visitation would result in harm to the child.'"

The Appellate Division confirmed the high value in the settlement of litigation.

but recognized the "courts' commitment to enforce such agreements [as] tempered by its

equitable power to review and modify support and custody orders upon a showing of changed

circumstances." In any grandparent visitation order, modification may be sought at any time on a

showing of changed circumstances. When grandparent visitation is established through a consent

order, a parent still must make a prima facie showing of changed circumstances to modify the

order. Discovery should be permitted and a plenary hearing should be conducted if there are

genuine issues of material fact, The mother had the burden to establish that a change of

circumstances exists warranting a modification in the visitation order. To establish that the

change of circumstances warrants modification, the parent must establish that the modification

will not cause harm to the child, as opposed to a best interest analysis. Although parent's have

the fundamental right to raise their children as they see fit, once a parent enters into a consent

order regarding custody or visitation that parent "effectively waives that autonomy."

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AMENDED OR NEW COURT RULES

1:13-2. Affidavits

The rule now permits affidavits to be filed in Portable Document Format (PDF). The amended rule no longer requires an attorney to certify that the affiant acknowledged the genuineness of the signature.

1:21-1. Who May Practice; Attorney Access and Availabiiity

Non-profit organizations incorporated in this or any other state may provide legal assistance to persons of low and moderate incomes in their name through "participating new attorneys."

1:38-3. Court Records Excluded from Public Access

Subparagraphs (f)(2) and (f)(5) were amended to exclude public access to records related to civil commitment expungements and municipal court records. Subparagraph (d)(2) was also amended to exclude affidavits and certifications of insurance from public access.

Subparagraph (f)(9), which permits victims of crimes to request records pursuant to N.J.S.A. 47:1 A-5(b)(2), was added.

1:38-7. Confidential Persona! Identifiers

The last three digits of Social Security Numbers are permitted on any writ, order, or judgement issues by the court involving a judgment debtor. I

1:40. Complementary Dispute Resolution Programs

Subsection 2 of this rule was amended to provide a hybrid arbitration-mediation process. The definition of neutral third party as subparagraph (f) was also amended, and subparagraph (g) distinguished roster and non-roster mediators.

Subsection 3(a) requires the Administrative Office of the Courts to maintain the roster of statewide mediators.

Subsection 4 was extensively amended to conform with the guidelines established in Appendix XXVI.

Subsection 8 was amended to exclude penalty enforcement actions to the list of subjects not eligible for mediation referral.

Subsection 12 was amended to highlight the requirements of mediators, including those serving in court-annexed programs. In addition, specific rules regarding Family Part mediators were established.

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1:43. Filing and Other Fees Established Pursuant to N.J.S. 2B:l-7

This rule was adopted to establish an increase in filing fees to fund pretrial services, the implementation of digital e-court filing, and legal assistance to indigent litigants.

2:9-1. Control by Appellate Court of Proceedings Pending Appeal or Certification

Subparagraph (a) was amended to ensure the trial court's continued responsibility of monitoring the child's safety, permanency, and well-being. In addition, the rule reiterated the necessity of the continuation of services to the child or family throughout the pendency of an appeal. The rule further highlights the trial court's retention of the permanency plan unless the permanency plan is the subject of the appeal.

5:1-4. Differentiated Case Management in Civil Family Actions

For matters mutually agreed to be arbitrated, subparagraph (a)(4) and (a)(5) were amended to reflect the newly created arbitration track in the Family Part. Paragraph (b) was amended to prevent the good cause exception from applying to a case assigned to the arbitration track. The rule also created a provision, subparagraph (c), for parties to opt out of the arbitration track

5:1-5. Arbitration

R. 5:1-5 was adopted effective September 2015 to define the Family Part matters where arbitration is permitted. This new rule establishes the framework under which parties may agree to arbitrate disputes heard in the family part (under either the Uniform Arbitration Act, N.J.S.A. 2A:23B-1, et. seq,, the New Jersey Alternative Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1, et. seq., or any other agreed upon framework for arbitration), the prerequisites for arbitration, and the procedure for what occurs during pending litigation when parties to a Family Part action agree to arbitration. This Rule governs all arbitration proceedings within the Family Part (rather than R. 4:21 A), with the procedures for review, confirmation and enforcement of interim or final arbitration awards set forth in R. 5:3-8, also then adopted (September 2015).

Subparagraph (a) of this rule establishes that parties may agree to arbitrate any disputes in the family part except; the entry of the final judgment of annulment or dissolution of relationship; actions involving the Division of Child Protection and Permanency; domestic violence actions; juvenile delinquency actions; family crisis actions; and adoption actions, which may not be arbitrated.

Subparagraph (b) establishes the prerequisites for arbitration including: completion of arbitration questionnaires found in Appendix XXIX-A and agreement or consent orders. The specific requirements of agreements and consent orders to arbitrate issues involving child-custody, parenting-time and child support is found in subparagraph (b)(2)(B) and (b)(2)(C).

Subparagraph (c) states that all family proceedings in which the parties agree to arbitration are to be in the arbitration track which are given scheduling consideration when fixing court appearance in other matters.

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5:3-2. Closed Hearings; Record

Subparagraph (a) was amended to include "In matters brought by the Division of Child Protection and Permanency, the court shall accommodate the rights of the child as provided by jjsj.J.S.A. 30:4C:61.2., prior to entering a permanency order.''

5:3-8. Review ar.ti Enforcement of Arbitration Awards

This new rule provides the procedures for confirming final and interim arbitration awards. Subparagraph (a) provides the procedure for all awards economic awards other than child support awards, subparagraph (b) provides the procedure for final or interim custody awards and oarenting time awards, subparagraph (c) provides the procedure for final or interim child support awards.

5.4 2. Complaint

This rule was amended include language directing that litigants are informed of the availability of the collaborative law process. Subparagraph (h) advises that this must be delineated in an affidavit or certification annexed to the first pleading.

Paragraph (i) was adopted requiring that non-dissolution matters be commenced via standardized form

Lastly, paragraph (j) "was added entirely to permit parties in a non-dissolution matter to request a complex track designation.

5:5-4. Motions in Family Actions

Subsection (a) of the rule was amended to require a copy of current and prior Case Information Statements to be affixed to motions and cross motions for alimony or child support based on changed circumstances. In addition, the rule expanded the prima facie case for changed circumstances to include a showing of other good cause.

5:5-6, Participation in Mandatory Post-£SF Medtation or in a Mandatory Post ESP ComplemeKtary Dispute Ilesolution Event

This rule was amended to comport with other rule changes regarding mediator's compensation including those changes found in appendix XXVI.

5.5-7. Case Mana&ement Conferences in Civil Family Actioins

Subparagraph (c) was added instructing the court to determine if a non-dissolution matter qualifies for a complex track during the first hearing by considering if discovery, expert evaluations, extended trial time or another material complexity requires such assignment. If the court finds that the matter is complex, a case management conference shall be conducted and an order regarding pre- trial issues shall be entered.

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5:6-1. When and By Whom Filed

The rule now provides that a non-custodial parent may bring a summary action for support.

5:7-4. Orders Establishing Alimony and Child Support Obligations

Subparagraph (d) now provides that all child and spousal support orders shall be entered into a statewide automated enforcement system and deemed payable through the New Jersey Family Support Payment Center unless otherwise directed by the court.

5:7-4A. Income Withholding for Child Support; Notices

This new rule establishes the procedures for income withholding for child support. Provisions formerly found under R^SiT-SCb) through (c) are now found under this rule, subparagraph (a) through (c), and R. 5:7-4(f) is found under 5:7-4A(d).

5:7-5. Failure to Pay; Enforcement by the Court or a Party; Suspension and Revocation of Licenses for Failure to Support Dependents; Execution of Assets for Child Support; Child Support Judgments and Post-Judgment Interest

Subparagraph (a) was amended to reference other available remedies pursuant to R. 5:3-7.

Subparagraph (e) has been re-designated as subparagraph (b) and amended to conform with N.J.S.A. 2A: 17-56.41. The rule states that "a child support obligor's driver's license shall be suspended by operation of law upon the issuance of a child support-related warrant." Additionally, an obligor's license to driver, participate in recreational activities, or practice a licensed occupation may be denied, suspended or revoked if specifically enumerated criteria are found at hearing.

R. 5:7-4A(a)-(c) reflect former subsections (b), (c), and (d).

5:7-11. Application for Title IV-D Child Support Services; Probation Division Enforcement Monitoring-Only Services.

This new rule provides the framework and procedures for applications of Title IV-D enforcement services are filed and implemented. Specifically, subparagraph (a) states that "[ajny party seeking full Title IV-D enforcement services by the Probation Division of an order that includes the payment of child support, or spousal support in conjunction with child support on the same order, shall submit a completed Title IV-D application, except as otherwise provided by law."

In addition, the rule also authorizes the use of the Probation Division for monitoring only.

5:12-4. Case Management Conference, Hearings, Trial, and Termination of Parental Rights Proceedings

The court rule was amended similarly to R, 5:3-2, to reflect N.J.S. 30:4C-61.2 and require the court to accommodate the rights of the child prior to entering a permanency order in matter brought by the Division of Child Protection and Permanency.

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5:14-4. Gestational Carrier Matters; Order of Parentage

This new rule provides the procedure through which biological parents using a gestational carrier may request a pre-birth order listing their names as legal parents on a child's birth certificate.

Appendix IX-A - Considerations in the Use of Child Support Guidelines Section 7(h), Assumptions Included in the Child Support Guidelines, and Section 20(a), Extreme Parental Income Situations, were amended to reflect 105% of the current poverty guideline, or $240 per week for one person.

In addition, Section 14(e), Shared-Parenting Arrangements, was amended to include the current 2016 Poverty Guideline for the Shared-Parenting Primary Household Net Income Thresholds.

Appendix IX-B - Use of the Child Support Guidelines - General Information; Line Instructions for the Sole-Parenting Worksheet; Line Instructions for the Sole-Parenting Worksheet; Line Instructions for the Shared-Parenting Worksheet

Line 2(a), Withholding Taxes, specifically delineates four methods to determine the amount of combines income tax withholding to be deducted from gross income. Section 2(a)(l)(b)(3)(a) and (b) were amended to include a threshold income of $70,000.

Line 25, 26 , and 27, Maintaining a Self-Support Reserve, was amended to reflect 105% of the current U.S. Poverty Guideline for one individual which is $240 per week.

Appendix IX-H - Combined Tax Withholding Tables for Use with the Support Guidelines

The comments to the Federal Income Tax table were updated to include the federal income tax withholding rates to use in 2016.

Appendix XXIX-A through D

These appendices were implemented as a result of the new court rule 5:1-5.

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AMENDED C I NEW STATUTES

N J Stat. S 1:1-2

The legislature add«d the definition of "certified mail" to include "private express canier service, provided that the private express carrier service provides confirmation of mailing." The confirmation may be done by electric means and should include the date and time of mailing, date and time of delivery, signature or other proof of delivery.

N.J. Stat. § 2A:4-30 - The Uniform Interstate Faimiiy Support Act ("UIFSA")

The 2008 Amendments to UIFSA were enacted nationwide, with New Jersey as the last state to enact the provisions effective April 1, 2016. The amendments modify the original Act to comply with the obligations established in the 2000 Hague Convention on Maintenance, which was signed in 2002 The amendments provide a pathway for United States orders to be enforced abroad. In addition, UIFSA ensures that children withm the United States will receive financial support for their parents regardless of where they reside. Specifically, Article 7 of UIFSA was estabhshes guidelines and procedures for the registration, recognition, enforcement, and modification of foreign support order that are parties to the Hague Convention.

N.J $tat. $ 2C:25-19 - Domestic Vcolence Amendment

The legislature amended the statute to allow individuals seeking temporary and permanent restraining order under the "Prevention of Domestic Violence Act of l^l" to do so as victims of evber-harassment. There are now 15 predicate offenses through which victims may seek protection under the "Prevention of Domestic Violence Act of 1991.

I I

jjJL Stat. § 37:1-13 - Authorization to Solemnize Marriages and Civil Unions f

The legislature amended the statute to include retired administrative law judges and in general, "a tax court" among the individuals able to solemnize marriages or civil unions between those lawfully eligible to enter intro marriage or civil unions.

N.J. Stat. ^ 52:176-194.3 - Estpblishment of^Amber'sPIan"

The legislature amended the Amber and Silver Alert statutes to require the Attorney General, alongside the State P olice, to implement a new plan to include the release of Amber and Silver Alerts through the social media accounts maintained by State Police. In addition, other appropriate State, county and municipal entities are also authorized to release information. The statute now requires a description and photograph of the missing individual and any known details regarding the disappearance and/or abduction.

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