Articles Posted in custody

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I often get asked questions about the Division of Child Protection & Permanency, more commonly referred to by its old name, DYFS. Specializing in child abuse and welfare defense, it is not uncommon for both individuals and family law attorneys who do not specialize in this area to have questions when the Division becomes involved with a family. One frequent question is whether it is necessary to retain an attorney if the Division has not actually taken parents to court, but rather is involved with the family on what I would refer to as an administrative level.

To answer this question, it is important to understand the role of the Division of Child Protection & Permanency on at least a basic level. The Division is responsible for investigating calls alleging abuse or neglect of a child. These calls are often anonymous and there is no minimal level of proof that triggers an investigation. When the Division gets a call, they must investigate. Investigating the allegation may include coming to the family’s home and assessing for any safety concerns, speaking to both the parent(s) and the child(ren), and speaking to professionals involved with the child(ren) such as the school or daycare and their pediatrician.

Upon completion of its investigation, the Division will make one of four findings: Substantiated, Established, Not Established and Unfounded. A finding of Unfounded means there is not a preponderance of evidence that a child has been abused or neglected and the evidence indicates the child was not harmed or placed at risk of harm. Such a finding will not be reported and remains confidential, and often any Division records regarding the allegation and investigation will be eligible to be expunged after three years (understand this is not always true). A finding of Not Established again means that there is not a preponderance of evidence that a child has been abused or neglected, but some evidence indicates the child was harmed or placed at risk of harm. This finding will not be reported and remains confidential, but the Division’s records may not be expunged and will be permanently maintained by the agency. A finding of Not Established may be appealed, but only to the Appellate Division within 45 days of receipt of the finding. pexels-pixabay-236215-300x198

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With the COVID-19 pandemic raging, I have spent a lot of time thinking about what the holidays will be like this year. Of course, the holidays are supposed to be a time filled with love and joy; a time spent with family and friends. This is true no matter what holiday you celebrate at this time of year. After all, that is what we see in all the holiday movies and hear in all the holiday songs. But, as most grownups know, even in normal times, as special as this time of year is, it is also a time that is inevitably more hectic and more stressful. But this year is different. Many are facing the loss of a loved one, in some cases, more than one loved one. So many people are separated from family members – in hospitals, nursing homes, or just keeping their distance to stay safe. Those who live alone are feeling the solitude even more while those who live with others are feeling the added pressure of the extra time couped up inside because while time together is wonderful, most of us are not accustomed to quite this much “time together.” And then there is the absence of so many of the holiday activities and traditions which we have come to treasure. As an Italian American from Brooklyn, for me, this means foregoing Christmas Eve in Brooklyn with extended family. As the mom of a two-year-old, it means no visit to see Santa this year. But I consider myself lucky. My family is healthy and I have not had to suffer the loss that so many have.pexels-nicole-michalou-5765727-200x300

Yet even as the pandemic drags on, we are striving to make the holidays a time of happiness. These are unusual circumstances, we tell ourselves. It is only one year and next year we will be able to celebrate again like we once did. These feelings of loss, loneliness, sadness, and hopelessness are not usual for this time of year and this too shall pass. But of course, this is not true for everyone. For some, the holidays are not a happy time, even when there is no pandemic. This is true for so many including those who are recently divorced or in the middle of a divorce.

Certainly, it is hard to be happy when the life you knew changes. Suddenly you find yourself dealing with the magnification of loneliness and navigating the stress and the hectic of the holidays alone. Maybe you are struggling with old traditions. Perhaps it is the first year that you will spend the holidays without your children. And added to the normal stress that always comes with the holidays is the need to manage parenting time schedules and feeling like you need to keep everything the same for the kids, while so much has changed.

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Dear Santa:pexels-cottonbro-6140236-200x300

I know I wrote to you in October asking you for just a few things for Christmas. I know you are busy and that kids all over the world need you more than ever. I was looking forward to Christmas when Uncle Harry always come dress like you and my sister plays carols on the piano. I just want to let you know that I would like to change my Christmas list. It’s not that I do not like Transformers or Batman. I love them! It’s just that things have changed around here. Mom and Dad’s fighting has gotten a lot worse. I know they think they are keeping it from me but I hear them fighting and I see the way they look at each other. I heard Dad say he wants a Divorce and mom said she did too. I know what Divorce is My friend Tom’s parents got divorced last year. Tom did not see his Dad for a long time until he was asked a lot of questions by some Doctors. He was scared. I don’t mind if Mom and Dad divorce. If they Divorce like my friend June. Her parents divorced but did not fight over her and were nice to each other. June sees her mom and dad all the time and they even go to her soccer games. She says nothing is that different she sees her mom and dad and she likes that there is no more fighting in the house. So here is what I would like. I want mom and Dad to stop fighting. I want them to be happy. I do not want them to fight over me and I want to see both of them Dad was sick this year and Dad said mom was the best nurse and told me what a great mother I had. Mom said that Dad was a hard worker and I should appreciate all the things he did to make our family better. Could you please remind them about that? I know that usually, you give kids like me toys and that you have a magical workshop. It’s

really the magic I am looking for this year. So what I really want for Christmas is for my mom and dad to calm down. When I get upset my Dad always says calm down buddy and my mom gives me a hug. That really works. Maybe you could give my mom a magic hug and tell my dad to calm down. I figure they would listen to you. I told my sister who is really big that I was going to write to you. She said it was a great idea and she would get it to you or your elves. She said she would like mom and dad to calm down too. I see her cry sometimes so I know she is sad. We are usually happy this time of year even mom and dad. We didn’t decorate the tree together we did it with mom and dad sat in the room by himself. I could see mom was being brave like she tells me to be when I get a shot. Every year we drive around the neighborhood looking for tacky lights this year mom had a headache and didn’t go. It wasn’t as much fun cause mom laughs through her nose when things get funny. I know things will be different now. But it could be nice different that would be best. And if you think I should have the transformers and batman too that would be great. I have been very good.

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As I sit here this morning working from home because I have a sick 23-month-old that cannot attend daycare, I find myself reflecting a lot about this experience that is being a working mom. It is most definitely nothing like what I could have possibly imagined two years ago when my husband and I were patiently awaiting the arrival of our first child. But as the cliché goes, right on his due date he made his appearance (he gets his punctuality from his father) and everything changed.

pexels-august-de-richelieu-4262414-200x300I knew being a working mom would be hard, but I also imagined having it mostly together – continue my career, breastfeed exclusively until my child turned one, take him to activities like My Gym, baby music classes and Mommy & Me swim to get him engaged early, read him a different story every day, make healthy meals and exercise, and have everything together for the next day before going to bed each night. Arrogant, I know, but hadn’t my mom and my grandmothers done it? Hadn’t they taken care of all the childcare stuff while still working because that is what we are supposed to do? And everywhere I looked it seemed there were working moms who had it all together. I wanted to handle it the way I thought they were handling this working mom thing. If you are a working mom or just a woman in general, you probably know what I am talking about. Women tend to imagine the women around them are doing everything right, while we are barely keeping it together. We tend to romanticize the women in our lives that we have looked up to and idealized.

When I think about it now, I usually find myself smiling, sometimes even laughing at these crazy ideas I had. And sometimes, I am still hard on myself and think that if I tried a little harder I could have it more together the way I thought I would. My days mostly fall somewhere on the scale of organized chaos to outright chaos. I have learned that most of the things I thought would be easy are actually really hard. I have learned that many of the women that seemed to have it all together are going through the same experience as me. So too I have come to realize that we almost never do it alone. Despite what I remembered, my mom and my grandmothers did not do it alone (it was, after all, my father who drove me to the skating rink at 6:00 in the morning and built pinewood derby cars with my brothers). I can still very vividly recall a female Judge telling me not long after I had my son, to make sure I let my husband help – you will succeed, he will succeed, and your children will succeed if you work together. Her point – parenting is a team sport. This is true no matter the status of your relationship. Parenting is a team sport whether you are married, divorced, living together or separated.

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covid19-300x200Co-parenting children when parents are separated or divorced can be challenging in normal circumstances.  One would agree, however, that times are not normal.  The country is in the midst of a pandemic due to the COVID-19 virus.  Governor Murphy has closed schools and many business, and he has directed that we engage in “social distancing” and stay at home for the indefinite future.

Families all over the State are concerned about their children’s health and well-being, not to mention family finances due to the number of people who have lost jobs, been furloughed or suffered from cuts in pay or hours.  Existing arrangements for custody and parenting time were designed for normal circumstances, not necessarily for unprecedented times such as these.

Questions may arise as to how  separated parents address custody, parenting time and child support issues.  To what extent do existing orders have to be followed? Generally, many existing agreements or orders for parenting time can and should be followed.  However, can a parent withhold or refuse parenting time?  What happens if a parent or child is exposed to the coronavirus or is at heightened risk of exposure?  What if a parent, child or family member begins to exhibit symptoms?  How should parents accommodate a household that has an elderly family member or a family member with a health condition which makes COVID-19 particularly deadly?  What if one of the parents lives out of state and the child has to travel some extended distance?  What if the households do not have the same social distancing practices?   Can both parents’ homes accommodate educating the children while school is closed?  Should parenting time be modified to reflect that both parents are home more either due to having lost their jobs or they are working from home?

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Various blogs have been written by members of our firm about situations where a custodial parents IMG_1930-300x225wants to move with the parties’ children to a state other than New Jersey.   Can a custodial parent live wherever he/she wants within the State of New Jersey?  Can a non-custodial parent ask a New Jersey family court just to stop a custodial parent from moving with the children to another town or city within the State of New Jersey?

Certainly some parents have reached an agreement with one another that they will live within a certain proximity to one another where they feel that it is in their own best interest for their children to live in certain areas of New Jersey or for the parents to live within a certain proximity to one another in order for their custody and parenting time agreement to work out.   New Jersey has a public policy of enforcing settlement agreements where they are fair and equitable.

What if parents do not have such an agreement?  Can the non-custodial parent prevent the custodial parent from living anywhere within the state of New Jersey that the custodial parent wants to live? In 2003, the Appellate Division addressed this question in the case of Schulze v. Morris, 361 N.J. Super. 419 (2003).  In this case, the parties had both been living in Middlesex County, New Jersey, but after the custodial parent was denied tenure at her teaching position, she found another teaching job in Sussex County and wanted to move with the parties’ child to Sussex County.  The non-custodial parent filed an Order to Show Cause seeking to stop the custodial parent from moving with the parties’ child to Sussex County.   The Appellate Division concluded that a custodial parent’s request to move to a different place within the State of New Jersey is not a “removal” action pursuant to N.J.S.A. 9:2-2 for which the custodial parent has to obtain the permission of the Court.   However,  the Appellate Division recognized that a custodial parent’s move with a child can have significant impact on the relationship between the child and the non-custodial parent and that there are occasions where an intrastate relocation can constitute a substantial change in circumstance warranting a modification of the custody and parenting time arrangement.   When a noncustodial parent opposes an intrastate relocation of the child(ren) but the custodial parent on the basis that the move will be “deleterious to the relationship between the child and the non-residential custodial parent, or will be otherwise inimical to the child’s best interests”, then the Appellate Division in Schultze directed that the family court had to assess the factors in Baures v. Lewis, 167 N.J. 91 (2001), an interstate relocation case.

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In enacting New Jersey statute, N.J.S.A. 9:2-2, the Legislature established a mechanism and25ebc4898eb30bc0cd7290a9cc18a32e-300x200 procedure for a divorced or unmarried parent when seeking to move with one’s children outside the state of New Jersey.  The statute provides:

“When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order. The court, upon application of any person in behalf of such minors, may require such security and issue such writs and processes as shall be deemed proper to effect the purposes of this section.”

The Courts in New Jersey have on several occasions interpreted this statute to address the standard for the family courts to apply when one parent wants to move out of New Jersey with the parties’ children, and the other parent objects to the children making such a move.   We addressed this standard in a previous blog with regard to parents having a shared 50/50 custodial arrangement based on the decision of the Appellate Division in Bisbing v. Bisbing, 445 N.J. Super. 207 (App.Div. 207), affirmed in part, modified, 230 N.J. 309  (2017).  In another blog, we addressed the standard for relocation based on the factors outlined in Baures v. Lewis, 167 N.J. 91 (2001).  In those cases,  before the children were removed from New Jersey, an application was made by the parent seeking to move.  Does that have to be the procedure?  Can the parent make that application after the move?  Is it the obligation of the objecting parent to make an application objecting to the children’s removal from New Jersey?

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It is not uncommon as a family law practitioner to experience a difference in the way the family courts handle cases involving the children of divorced or divorcing spouses (where they are 772bcf531a8ff5549f90c16a75fd1d7f-1-300x200matrimonial cases bearing an “FM” docket number) in the dissolution unit, and children of non-married parents in the non-dissolution unit (those bearing a docket number starting in “FD”).  Non-dissolution cases are typically far more summary in fashion and are handled more quickly than they are in the in the cases of divorcing parents.   The good part of this is that the children’s cases may be processed more quickly and there is less uncertainty in their lives because the children are not enduring a longer, more drawn out litigation than children of divorcing parents sometimes have to survive.  In non-dissolution cases, however, because they often are so summary, the court does not have the opportunity to become as familiar with the facts and circumstances.

In the recently published Appellate Division opinion in the matter of J.G. v. J.H., A-1312-17 (App. Div. Jan. 2, 2019) expressed some disagreement over how summarily a family court judge resolved a custody dispute between unmarried parents.

John was born in 2012 to mother Jane and father Joseph.  In 2014 the parties entered into a non-dissolution order that provided for their agreement to share joint legal custody of John, with Jane having primary residential custody and Joseph having liberal visitation with him.  In 2015 the parties attempted to reconcile and vacated that order.  The reconciliation did not last.  Jane became engaged to another man and became pregnant.  Joseph filed an order to show cause accusing Jane and her fiance of drug use and asserting that she should not leave John alone with her fiance, asserting that he was a known drug user and convicted felon.  Joseph was awarded temporary sole custody of John based on the concern for violence in Jane’s home. The court directed that Jane’s visitation with John be supervised and that it occur outside her home.

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For family law attorneys, it’s beginning to look a lot like Christmas . . . fights over holiday parenting time.  The holiday season is often a time of stress, and sometimes of sadness, for everyone.  ForDSC05380-200x300 separating or divorcing parents or newly divorced parents, fighting over how to divide holiday time with their children, there is additional sadness and distress.   Every year as a matrimonial attorney I see the stress on separating couples and their children as they either try to adhere to traditional holiday celebrations for the sake of their  children, or as they try to adjust with their children to the inevitable new traditions that are going to have to be made as parents separate and cannot spend the full holiday season with they traditionally would, but have to share it.  The stress can be additional as grandparents weigh in and wish to spend time with their grandchildren, and when one or both parents begin new relationships that pulls on them or whispers in their ear at holiday time as well.

How can you avoid some of the pitfalls of disputes with your “ex” that can derail the holidays with your children?  Here, are a few tips:

  1.   Consider the stress and worry that you and your ex are putting the children under when you argue about holiday parenting time.   Parents usually want Christmas to be a magical time for the children.   It is not magical when they are aware that their parents are fighting over them.  Also, children often come to feel that they are the cause or the source of what their parents are arguing over.  This can create needless feelings of guilt, worry and unhappiness that can ruin the holidays for them.
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In the published Appellate Division opinion in NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY v. P.O. and M.C.D. A-1871-16, (App. Div.  Oct. 30, 2018), the AppellateIMG_1930-1-300x225 Division addressed the 2011 emergency removal of two children, ages 7 and 2, from their undocumented immigrant parents. While the two children remained in resource homes, the parents were removed from the United States. The mother was prohibited from returning to the U.S. for 10 years and the father was prohibited from returning to the U.S. for 20 years. In 2013, the parents appeared by telephone, represented by counsel, and entered into an identified voluntary surrender of their parental rights to a family they had identified to the Division as a potential resource placement. Both of the parents confirmed that in the event the family whom they identified for resource placement did not adopt their children, then  their parental rights would be reinstated and litigation would be reopened. Ten months later, the trial court ruled against moving the children to the family identified as a potential resource placement. Without notice to the parents, the trial court vacated the identified voluntary surrenders, reinstated the biological parents’ parental rights and reopened the guardianship litigation. Thereafter, the father was provided with services needed for reunification with the children.  The mother could not be provided with reunification services because she could not be located.  She failed to keep in contact with the Division after leaving the U.S.   She ultimately resumed living with the children’s father, but both parents were inconsistent in maintaining contact with the Division.

Neither of the children speak Spanish. One of the children had a language disorder that would make it difficult for him to learn Spanish if he were sent to live with his parents. Additionally, the children had bonded with the resource parents and wanted to be adopted by them. The trial court found that termination of parental rights was in the best interest of the children.

The parents appealed the trial court’s decision, arguing that their due process rights were violated because they did not receive notice of the pending dissolution of the identified surrender and because many of the hearings that were before the termination trial and were not held on the record. Even though the parties did not raise these arguments in the trial court, the Appellate Division agreed that the parties should have been notified before the identified surrender judgment was vacated. More importantly, the Appellate Division stated that every proceeding should have been placed on the record even when the parents were in agreement with the provisions of the order being entered. All Children In Court proceedings resulting in orders should be on the record. Particularly when the parents, who have not unconditionally abandoned their rights, are not parties to the proceedings. Nevertheless, the failure to do so in this case was not fatal because the parents rights were restored and they were parties to a full trial on the merits.