New Jersey Divorce and Family Lawyer Blog
The rumor is we did have a summer this year. Besides what seemed like a few nice days, what passed for summer flew by like a flash. Suddenly it was Labor Day, which for most people signals the
arrival of Fall. What else arrives each Fall? The annual Amendments that have been approved by our Supreme Court to the Rules Governing the Courts of the State of New Jersey arrive. Historically, any significant changes in the Part V Rules affecting Family Part practice are made every other year. This was an off-cycle year, meaning there was a paucity of amendments to the Family Part Rules this year. However, there were a number of Rule amendments in other sections of the Rules that either have a direct impact upon Family Part practice in some fashion, or may have some general application to aspects of this practice. I will summarize and discuss these Amendments over the course of several blog posts.
Besides an addition to Rule 5:22 involving juvenile matters, the only actual Amendment in Part V dealing with Family Part Practice is in regards to Rule5:1-2. Rule 5:1-2(a) generally defines what types of “Family Actions” are to be filed and heard in the Chancery Division, Family Part. The prior version of this Rule, after delineating certain specific types of actions, included not once but twice catch-all language to include “all civil actions in which the principal claim”, as well as “all other civil actions and proceedings” which were “unique to and arising out of a family or family-type relationship”. Very broad language indeed. While the recent Amendments to this Rule may seem subtle, they represent an attempt to better define what types of Family Actions are cognizable in the Family Part. While continuing to include reference “all actions in which the principal claim is unique to and arises out of a family or family-type relationship”, the recent Amendment deleted reference to the term “civil” actions, and deleted the catch-all “all other civil actions and proceedings” language at the conclusion of the Rule. Palimony actions were added to those which should be filed and heard in the Family Part. Most importantly while the amended rule continues to include reference that “such action shall include all actions and proceedings referenced in Chapters II and III of Part V”, the language “unless otherwise provided in Rule 4:3-1(a)(4)” was added. What does this mean? This language was added for the purpose of cross-referencing those actions excepted from Family Part jurisdiction in light of the contemporaneous adoption of Rule 4:3-1(a)(4).
Please remember that the Part IV Rules are intended to govern Civil Actions generally, and which includes most Family Actions unless otherwise specifically addressed in the Part V Rules. Before turning our attention to Rule 4:3-1(a)(4), Rule 4:3-1(a) delineates generally which Court or Division a certain type of action should be instituted. Rule 4:3-1(a)(3) delineated the types of actions which were to be instituted in the Chancery Division, Family Part. However, it is curious to note that the language of this Rule was also subtlety amended to track some of the language changes to Rule 5:1-2(a), i.e. deleting the reference to “civil” and adding a reference to palimony actions, yet curiously continued to include the catch-all “all other actions and proceedings unique to and arising out of a family or family-type relationship” although deleted from Rule 5:1-2. What this means or whether it was an oversight or intentional is unclear. However, the language of the Rule referencing actions cognizable in the Family Part to “include all actions and proceedings referenced in Part V of these rules” is now followed by the limiting language “unless otherwise provided in sub-paragraphs (a)(4) of this rule”, referring in this instance to the newly enacted Rule 4:3-1(a)(4). This new rule sub-paragraph specifically refers to variety of actions named therein which may be associated with Family Actions, but which constitute exceptions from the normal Family Part practice. Said another way, while they may generally arise out of a family or family-type relationship, Rule 4:3-1(a)(4) attempts to delineate which Division or Part certain types of actions should be filed and heard, and not necessarily in the Family Part. Rule 4:3-1(a)(4) identifies nine (9) such types of actions. I will briefly comment on each of them.
A. Name change: Actions seeking to change the name of an adult and/or minor are to be filed and heard in accordance with the applicable provisions of Rule 4:72, which were also substantially amended this year. While I will discuss Rule 4:72 in a later blog post, generally actions for a change of name for an adult are to be filed and heard in the Law Division, Civil Part, unless as part of a dissolution case, same are to be filed and heard in the Chancery Division, Family Part. Actions for the change of name of a minor are also to be filed and heard in the Chancery Division, Family Part.
B. Partition: Notwithstanding a family or family-type relationship, if partition is the only relief sought, such matters are to be filed and heard in the Chancery Division, General Equity. However, if any other form of relief is sought that affects the family or family-type relationship, including but not limited to divorce, termination of domestic partnership, dissolution of civil union, spousal support, child support, custody, parenting time, property distribution or palimony, the matter shall be filed and heard in the Chancery Division, Family Part.
C. Enforcement of judgments: Except as otherwise provided in the Court Rules, motions and applications to modify or enforce a judgment, regardless of the relief sought, are to be filed in the Division and Part where the judgment itself was entered.
D. Parenting time/visitation: All parenting time/visitation issues relating to minors are to be filed and heard in the Chancery Division, Family Part. However, parenting time/visitation issues relating to adults are to be filed and heard in the Chancery Division, General Equity except those actions seeking visitation of adjudicated incapacitated adults which shall then be filed and heard in the Chancery Division, Probate Part.
E. Personal possessions: If ownership interest or monetary damages pertaining to personal property, including pets, is the only relief sought, such matters shall be filed and heard in the Law Division, Civil Part or the Law Division, Special Civil Part. However, if any other form of relief is sought which affects the family or family-type relationship (such as referenced above), such matters shall be filed and heard in the Chancery Division, Family Part.
F. Ejectment: Similarly, if the ownership interest or monetary damages pertaining to an ejectment is the only relief sought, such matters shall be filed and heard in the Law Division, Civil Part, Law Division, Special Civil Part or Chancery Division, General Equity as the case may be. However, if any other form of relief is sought that affects the family or family-type relationship, such matters shall be filed and heard in the Chancery Division, Family Part.
G. Requests for Transcripts of Closed Family Court proceedings made in a Civil Action: Applications to determine the disclosure of Family Part transcripts with regard to closed family court proceedings for use in a civil action, and to establish whether any conditions should be attached thereto are to be filed and heard in the Law Division, Civil Part; however, parties to the Family Part matter are to be provided with notice of the application.
H. Birth Certificates and Marriage Certificates: Applications seeking to alter the name of a parent on a birth certificate shall be filed and heard in the Chancery Division, Family Part if the application is filed on behalf of a minor. However, applications for the issuance of a vital record are to be filed in the Law Division, Civil Part as an action in lieu of prerogative writ.
I. Post-judgment Relief Relating to an Incapacitated Adult Child of Parents Subject to Family Part Order: Actions seeking to modify or enforce the terms of a Chancery Division, Family Part Order addressing custody or parenting time/visitation of an unemancipated minor child who was later adjudicated incapacitated after reaching age 18 are to be filed and heard in the Chancery Division, Probate Part. If the action affects support and the incapacitated child has not yet turned 23, such matters shall be filed and heard in the Chancery Division, Family Part. However, if the action affects support and the incapacitated child has turned 23, such matters shall be filed and heard in the Chancery Division, Probate Part pursuant to Rule 4:86-7A, the provisions of which were subject to this year’s rule amendments and will be discussed in a later blog post. Finally, if an application is filed relating to the support of an incapacitated child over the age of 23 and either parent remains subject to a Family Part support or financial maintenance Order relating to other dependents, the support issue for the incapacitated child shall still be determined in the Chancery Division, Family Part.
What does all of this mean? While most matters that arise from and/or are unique to a family or family-type relationship should still be filed and heard in the Chancery Division, Family Part, there are obviously exceptions to this rule and the recent rule amendments are an attempt to clarify, highlight, and make the public and bar aware, of these types of exceptions so that they are filed and heard in the proper court.