Arguments are not domestic violence E.D. v. P.D., DOCKET NO. A-0692-09T3

Arguments are not domestic violence

E.D.

v.

P.D., DOCKET NO. A-0692-09T3

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

_______________________________________________

Submitted December 1, 2010 - Decided

Before Judges Fisher and Simonelli.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Somerset County, Docket No. FV-18-0243-10.

Copeland, Shimalla, Wechsler & Lepp,

attorneys for appellant (Amy Wechsler, of

counsel; Tam Abitante, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant appeals from a final restraining order (FRO)

entered against him and in favor of his ex-wife, pursuant to the

Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17

to -35. Because the predicate acts were not alarming or

seriously annoying but akin to what we have described as

"ordinary domestic contretemps," Corrente v. Corrente, 281 N.J.

December 13, 2010

2 A-0692-09T3

Super. 243, 250 (App. Div. 1995), because the judge did not find

defendant acted with the purpose to harass, and because the

judge did not find restraints were necessary to protect

plaintiff from immediate danger or to prevent further abuse, we

reverse.

The trial consisted only of the testimony of the parties,

who represented themselves. Although he did not specifically

enumerate the acts of domestic violence found to have occurred,

we discern from the judge's credibility findings that he found

all the acts alleged by plaintiff to have occurred as plaintiff

described them; accordingly, we will assume the judge found the

following facts, which we take from plaintiff's testimony:

-- on July 24, 2009, defendant called

plaintiff "repeated[ly]";

-- on July 25 and 26, 2009, defendant

made "several" telephone calls to plaintiff

while she was at work; she told him to send

an e-mail, but he "continued to call,

refused to send an e-mail, [and] was yelling

about" whether she had made payments

necessary for their children to play soccer

and engage in cheerleading; during these

telephone calls, defendant was "very

aggressive and hostile";

-- on August 5, 2009, plaintiff was

standing outside a yoga studio when

defendant "stopped his car, rolled down his

window and yelled . . . [']get your ass home

and take care of your kids[']";

-- on August 11, 2009, defendant

telephoned plaintiff at work again to

3 A-0692-09T3

complain about the soccer and cheerleading

fees; according to plaintiff, "the phone

call lasted a couple of minutes and I was

trying to be business-like, as I was

standing in my office and I said to him,

[']can you please slow down?['] He said

[']no, I won't slow down. If I slow down, I

might get nice.['] And the phone call ended

[with defendant] saying, 'get it done,

bitch,' and he hung up";

-- on August 12, 2009, plaintiff

answered their daughter's cellphone; defendant

was on the line and "insult[ed] and

harass[ed]" plaintiff about her "financial

history, [her inability] to pay bills";

-- later on August 12, 2009, while

returning home from yoga class, plaintiff's

vehicle passed defendant's; he "slowed down,

. . . stared at me, put up his middle finger

and glared, just a crazed look on his face."

Based on these implicit findings, the judge entered an FRO.

Defendant appealed, raising the following arguments for our

consideration:

I. THERE EXISTS INSUFFICIENT CREDIBLE EVIDENCE

IN THE RECORD TO SUSTAIN THE FINDING

THAT APPELLANT COMMITTED AN ACT OF DOMESTIC

VIOLENCE AGAINST RESPONDENT.

A. THE TRIAL COURT FAILED TO MAKE

A SPECIFIC FINDING AS TO WHAT WAS

DONE TO CONSTITUTE A PREDICATE ACT

OF DOMESTIC VIOLENCE.

B. EVEN IF THE TRIAL COURT HAD

MADE A FINDING THAT THE APPELLANT

COMMITTED HARASSMENT, IT FAILED TO

MAKE A SPECIFIC FINDING OF INTENT

TO HARASS.

4 A-0692-09T3

C. THE TRIAL COURT ERRONEOUSLY

FOUND THAT THERE WAS A HISTORY OF

DOMESTIC VIOLENCE.

II. THE TRIAL COURT DID NOT MAKE THE REQUIRED

DETERMINATION THAT A FINAL RESTRAINING

ORDER WAS NECESSARY TO PROTECT RESPONDENT

FROM FUTURE ACTS OF DOMESTIC VIOLENCE.

III. THE TRIAL COURT ERRED BY FAILING TO

FULLY CONSIDER WHETHER RESPONDENT WAS USING

DOMESTIC VIOLENCE COMPLAINT TO GAIN AN

ADVANTAGE IN THE PENDING FM AND DYFS

MATTERS.

IV. THE CONDUCT OF THE PROCEEDINGS DEPRIVED

THE APPELLANT OF HIS RIGHT TO A FULL AND

FAIR HEARING.

V. THE CUMULATIVE EFFECT OF THE ERRORS

MANDATE A REVERSAL OF THE ENTRY OF THE FINAL

RESTRAINING ORDER.

Because we conclude (a) the judge did not find defendant acted

with the purpose to harass, (b) the predicate acts were not of

sufficient significance, and (c) the judge failed to find an FRO

was necessary to prevent an immediate danger or further abuse,

the FRO must be reversed without our needing to reach

defendant's other arguments.

A

To obtain an FRO pursuant to the Act, a plaintiff must

first prove by a preponderance of the evidence that the

defendant committed one of the predicate acts referred to in

N.J.S.A. 2C:25-19(a), which incorporates harassment, N.J.S.A.

5 A-0692-09T3

2C:33-4, as conduct constituting domestic violence. See Silver

v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). Here, we

discern from the judge's oral decision that he viewed

plaintiff's allegations as fitting either subsection (a)1 or (c)2

of N.J.S.A. 2C:33-4.3 Harassment as defined in either subsection

requires proof that defendant acted "with purpose to harass."

Certainly, an harassment claim does not require a statement

from the defendant that he or she acted with an intent to harass

the plaintiff. "A finding of a purpose to harass may be

inferred from the evidence presented," which may be informed by

1N.J.S.A. 2C:33-4(a) declares that harassment consists of the

making or causing to be made, "with purpose to harass another,"

"a communication or communications anonymously or at extremely

inconvenient hours, or in offensively coarse language, or any

other manner likely to cause annoyance or alarm."

2N.J.S.A. 2C:33-4(c) declares that harassment consists of the

engaging, "with purpose to harass another," "in any other course

of alarming conduct or of repeatedly committed acts with purpose

to alarm or seriously annoy such other person."

3The judge's citation to the predicate acts in question here

combined both subsections (a) and (c); that is, the judge

stated:

In looking under the complaint that's been

filed, it's [N.J.S.A.] 2C:33-4, harassment,

a person commits a petty disorderly offense

if with the purpose of harassment, he makes

or causes to be made communications in an

offensive language or in any matter likely

to cause annoyance or alarm.

The judge did not thereafter determine which part or parts of

the statute were violated here.

6 A-0692-09T3

"[c]ommon sense and experience." State v. Hoffman, 149 N.J.

564, 577 (1997). Here, the judge made no finding that defendant

acted with this requisite purpose, nor may defendant's words and

conduct be viewed as implicitly embodying a purpose to harass.

Accordingly, in the absence of this "integral" finding,

Corrente, supra, 281 N.J. Super. at 249, the judge's

determination that defendant committed a predicate act cannot

stand and the FRO must be reversed.

B

Even when viewed expansively, we cannot conclude from the

judge's findings that defendant engaged in any communications or

conduct that rose to the level of what the Legislature intended

as "domestic violence." For example, in Corrente, the defendant

threatened "drastic measure[s]," and later disconnected the

plaintiff's telephone service; we held that communication and

conduct could not be "characterized as alarming or seriously

annoying." Id. at 249. In another case, we drew the same

conclusion where the defendant said to the plaintiff, "I'll bury

you," Peranio v. Peranio, 280 N.J. Super. 47, 55-56 (App. Div.

1995). And, where the defendant surreptitiously removed the

plaintiff's belongings from their apartment and engaged in one

occasion of shouting and door slamming, we likewise found no

course of alarming conduct sufficient to constitute domestic

7 A-0692-09T3

violence. Grant v. Wright, 222 N.J. Super. 191, 196 (App.

Div.), certif. denied, 111 N.J. 562 (1988). See also Kamen v.

Egan, 322 N.J. Super. 222, 228 (App. Div. 1999) (holding that a

single act of trespass, unaccompanied by violence or a threat of

violence, was insufficient to justify issuance of an FRO).

Assessing the judge's opinion in the light most favorable

to plaintiff, the evidence suggested only that defendant made

multiple telephone calls to plaintiff about the payment of fees

for the children's extracurricular activities, berated plaintiff

and called her a "bitch," and made angry gestures and faces from

a distance. Even had the judge found defendant spoke and acted

with the purpose to harass -- which he did not -- these

circumstances still failed to meet the standard necessary for

entry of an FRO.

As then Judge (now Justice) Long stated for this court in

Corrente, this type of conduct -- particularly during the course

of matrimonial litigation, as here -- "was plainly never

contemplated by the Legislature when it addressed the serious

social problem of domestic violence." 281 N.J. Super. at 250.

Instead, "the invocation of the domestic violence law" in this

case, like Corrente, "trivialize[s] the plight of true victims

of domestic violence and misuse[s] the legislative vehicle which

was developed to protect them." Ibid.; see also Peranio, supra,

8 A-0692-09T3

280 N.J. Super. at 56-57. In short, "[t]he domestic violence

law was intended to address matters of consequence, not ordinary

domestic contretemps such as this." Corrente, supra, 281 N.J.

Super. at 250. We find those statements equally applicable

here.4

C

The FRO must also be reversed because the judge did not

find restraints were necessary "to protect the victim from an

immediate danger or to prevent further abuse." Silver, supra,

387 N.J. Super. at 127; see also Kamen, supra, 322 N.J. Super.

at 228. As explained by Judge Fall in Silver, supra, 387 N.J.

Super. at 126-27, the finding of a predicate act satisfies only

the first step in a two-step process. Because "the Legislature

4The record is very murky as to whether there was a prior history

of domestic violence. Plaintiff asserted "[t]here's a long

prior history . . . going back to 1997 of threats and

harassment, interfering with my work" but she only provided

specifics related to her unsuccessful attempt to obtain an FRO

five years earlier. We are mindful that defendant acknowledged

"there's been a long history of reported domestic violence [that

started] back in 1997," but his unspecific comments seemed to

suggest that plaintiff's earlier claims, which were found

without merit, were not dissimilar from those asserted here.

Moreover, defendant testified and was not contradicted that

after the earlier domestic violence action was dismissed, the

parties continued to reside together, even after entry of a

judgment of divorce. In any event, the judge made only one

reference to this testimony -- "I've heard a litany of

complaints that go back to 1997" -- and did not find that there

was a prior history of domestic violence.

9 A-0692-09T3

did not intend that the commission of one of the enumerated

predicate acts of domestic violence automatically mandates the

entry of a domestic violence retraining order," plaintiff was

obligated to prove and the judge was required to find that

restraints were necessary to "protect the victim from an

immediate danger or to prevent further abuse." Ibid. Although

there are certain acts of domestic violence that may reveal such

a need without a judge's express finding, when the claimed

predicate act consists of harassment or other types of

nonviolent conduct, the judge is required to provide a

principled analysis of why a restraining order is necessary to

protect the victim from danger or further abuse.

Absent an expressed holding, or other findings from which

we might discern such an implicit determination, we must

conclude that plaintiff failed to prove the need for an FRO even

if the proofs permitted a finding that defendant committed the

predicate act of harassment.

Reversed.

Relief Available for People With Children

Relief Available for People With Children

If you have children, you will probably need to ask for additional relief in your divorce complaint concerning custody of the children, parenting time/visitation, and child support.

Top of page

Custody. If you and your spouse do not agree about child custody, the judge will have to decide this in the divorce case. The judge must decide what custody arrangement is in the child’s best interests. If you have serious concerns about who will get custody, you should talk to a lawyer.

There are two aspects of custody: legal custody and physical custody. The parent with primary legal custody is responsible for making important decisions concerning the child, such as where the child should go to school and what kind of medical care the child should get. The parent with primary physical custody is the parent the child lives with most of the time. This parent is called the custodial parent, and the other parent is called the non-custodial parent. Parents can also share custody jointly.

• Joint physical custody (also called shared physical custody). The child lives with each parent for similar amounts of time during the year. In this situation, both parents have day-to-day responsibility for the child.
• Primary physical custody. The child lives most of the time with one parent. The other parent may visit the child.
• Joint legal custody. Both parents are involved in making important decisions concerning the child’s education, medical care, and similar issues. Both have access to the child’s school and medical records.
• Primary legal custody. Only one parent is responsible for making important decisions concerning the child.

Custody arrangements can vary greatly, depending upon the needs of the children and the relationship of the parents. The court does not have to give both parents physical and legal custody. Often the parties have joint legal custody, but one party has primary physical custody. In some very rare situations, one parent will get legal and physical custody. This parent is said to have sole custody. Sole custody is ordered only where one parent is missing, absent, or found to be legally “unfit.”

Custody decisions are based on the child’s best interests. The court will look at a number of factors, including:

• The parents’ ability to agree, communicate, and cooperate.
• The child’s relationship with the parents and siblings.
• Any history of domestic violence.
• The child’s safety, needs, and preference.
• Each parent’s ability to take care of the child.
• The child’s education.
• The amount of time each parent has spent with the child.
• The parents’ employment responsibilities.
• The ages and number of children.
• Any other factors the court finds relevant.

Decisions involving custody can be changed by the court if the parties’ or children’s circumstances change.

Other issues around custody include the following:

• Parent education. In every divorce action where custody, visitation, or support of a minor child or children is an issue, the court will order the parents to attend a Parents’ Education Program to be offered twice a month through the court. There is a $25 fee to attend this program, and attendance is mandatory. The program is designed to assist and advise divorcing parents on issues concerning divorce, separation, and custody, to promote cooperation between them and assist them in resolving issues concerning their children that may arise during the divorce or separation process. The court may exempt a party from attending this program if a temporary or final restraining order, restraining either party from contact with the other, has been issued or for other good cause determined by the court.
• Custody mediation. When there is a dispute about custody or parenting time, the court will usually refer the parties to mediation to see if a court mediator can help resolve the issue. If a temporary or final domestic violence restraining order has been entered against you or your spouse, you cannot be required to participate in mediation. Likewise, if there are issues of child abuse or sexual abuse, the case will not be mediated. If circumstances require it, even after mediation has begun, the mediator or either party can petition the court for permission to remove the case from mediation by demonstrating good cause for removal. If an agreement is reached, it is memorialized in writing and a copy is given to each party. If an agreement is not reached, the case goes back to the court to be settled by way of a trial or hearing.
• Court investigations. The court can ask the probation division or other court staff to conduct an investigation of the parties and their homes and file a report with the court. This is sometimes referred to as a best interests investigation.
• Parenting plans. Unless you and your spouse agree about custody, you will both have to file aCustody and Parenting Time/Visitation Plan (Form 22) with the court within 75 days of the date the defendant answers the complaint. If the defendant files a counterclaim, you will need to file your plan within 75 days of filing your answer to the counter-claim. (See Custody and Parenting Time/Visitation Plan.) source http://www.lsnjlaw.org/english/family/divorce/divorcenj/divch1/index.cfm#ch1prep

DYFS v. I.H.C. and D.C. A-2208-09T4

DYFS v. I.H.C. and D.C.

A-2208-09T4 08-05-10

In this abuse or neglect case, we hold that N.J.R.E. 404(b)

did not bar consideration of the father's acts of domestic

violence against his ex-wife and the children of that marriage

about seven years earlier to prove risk of harm to the children

of this marriage. We also hold that domestic violence that

presents risk to children in an abuse or neglect case can be

broader than the meaning of that term under the Prevention of

Domestic Violence Act. As testified by the experts, the

father's coercive control of the mother, together with both

parents' denial of and failure to treat their psychological

conditions, posed a risk of harm to the children. In reaching

these holdings, we address and distinguish DYFS v. H.B., 375

N.J. Super. 148 (App. Div. 2005), and DYFS v. S.S., 372 N.J.

Super. 13 (App. Div. 2004), certif. denied, 182 N.J. 426 (2005).

DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES v. C.H. A-4786-08T1

DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH

AND FAMILY SERVICES v. C.H.

A-4786-08T1 07-28-10

An ALJ found that a parent's corporal punishment of a four-

year-old who reported to a neighbor that there was no

electricity in their home was insufficient to sustain an

allegation of abuse under N.J.S.A. 9:6-8.21(c). The Director

disagreed, finding that given the reason for inflicting the

corporal punishment, the fact that the child was struck multiple

times, and the parent's history of questionable corporal

punishment, the abuse had been substantiated. We affirmed and

agreed the Director properly considered the parent's past

admitted history of corporal punishment inflicted upon the

S.D. v. M.J.R. A-6107-08T2

S.D. v. M.J.R.

A-6107-08T2 07-23-10

In this action pursuant to the Prevention of Domestic

Violence Act (PDVA), we held that the Free Exercise Clause of

the First Amendment does not require a Family Part judge to

exempt defendant, a practicing Muslim, from a finding that he

committed the predicate acts of sexual assault and criminal

sexual contact and thus violated the PDVA. We also found that

the judge was mistaken in failing to enter a final restraining

order in the matter.

DIVORCE – DISPUTE RESOLUTION ALTERNATIVES TO CONVENTIONAL LITIGATION – DESCRIPTIVE MATERIAL REQUIRED BY RULE 5:4-2(h); CERTIFICATION FORMS

DIVORCE – DISPUTE RESOLUTION ALTERNATIVES TO CONVENTIONAL LITIGATION

– DESCRIPTIVE MATERIAL REQUIRED BY RULE 5:4-2(h); CERTIFICATION FORMS

As part of the July 27 rule amendments that went into effect September 1, the

Supreme Court adopted a new paragraph in Rule 5:4-2 (“Complaint”) that requires the

first pleading of each party in a divorce action to include an affidavit or certification “that

the litigant has been informed of the availability of complementary dispute resolution

(‘CDR’) alternatives to conventional litigation, including but not limited to mediation or

arbitration, and that the litigant has received descriptive literature regarding such CDR

alternatives.” Rule 5:4-2(h) (“Affidavit or Certification of Notification of Complementary

Dispute Resolution Alternatives”). The Court recently adopted a clarifying amendment

to that paragraph, changing “descriptive literature” to “descriptive material.”

In a September 18 Notice to the Bar, I advised that the “descriptive material” was

still in the process of being developed by the Committee on Complementary Dispute

Resolution. The Committee completed its work and submitted the proposed text and

the accompanying certification forms. The Court at its October 10 Administrative

Conference approved the “descriptive material” text and the certification forms, subject

to some final editing.

That final editing having been made, attached as approved by the Supreme

Court is the “descriptive material” on dispute resolution alternatives to conventional

divorce litigation, as referenced in Rule 5:4-2(h). Also attached are the two approved

certification forms relating to the descriptive literature, one for use by self-represented

matrimonial litigants, the other by those litigants represented by counsel. The

descriptive material and certification forms should be used effective immediately.

The descriptive material and certification forms also will be published and posted

by a Notice to the Bar. Questions may be directed to Assistant Director Harry Cassidy

at 609-984-4228.

Note: The adoption of Rule 5:4-2(h) and the promulgation of the attached

descriptive material is in no way intended to indicate any change in the Court’s policy,

grounded in statutes and court rules, against mediation in any matter in which a

temporary or final restraining order has been entered pursuant to the Prevention of

Domestic Violence Act.

/s/ Philip S. Carchman

Philip S. Carchman, J.A.D.

Acting Administrative Director of the Courts

Dated: December 4, 2006

DIVORCE – DISPUTE RESOLUTION ALTERNATIVES

TO CONVENTIONAL LITIGATION*

[Text Promulgated 12/04/06 as Approved by the Supreme Court]

Resolving issues concerning your divorce can be costly and difficult. While only a judge

can actually grant a divorce, division of your property and your debts, alimony, child support,

custody and parenting time are some of the other issues that may need to be resolved. A judge

can decide all issues at trial. However, there are other ways to resolve many of the issues in your

divorce. These alternate dispute resolution methods offer greater privacy than resolving the

issues in a public trial. They also may be faster and less expensive, and may reduce the level of

conflict between you and your spouse during your divorce. You are encouraged to discuss

alternative dispute resolution with your lawyer to decide whether these alternate methods may

help you and your spouse resolve as many of the issues relating to your divorce as possible

before the matter is presented to the judge.

What follows are short descriptions of various forms of alternative dispute resolution that

may be used in divorce cases.

MEDIATION**

Mediation is a means of resolving differences with the help of a trained, impartial third

party. The parties, with or without lawyers, are brought together by the mediator in a neutral

*

This constitutes the “descriptive material” referenced in Rule 5:4-2(h) that each divorce litigant

must receive and certify as having received (using the attached certification forms).

**

Note: The adoption of Rule 5:4-2(h) and the promulgation of this descriptive material is in no

way intended to indicate any change in the Court’s policy, grounded in statutes and court rules,

against mediation in any matter in which a temporary or final restraining order has been entered

pursuant to the Prevention of Domestic Violence Act.

1

setting. A mediator does not represent either side and does not offer legal advice. Parties are

encouraged to retain an attorney to advise them of their rights during the mediation process. The

mediator helps the parties identify the issues, gather the information they need to make informed

decisions, and communicate so that they can find a solution agreeable to both. Mediation is

designed to facilitate settlements in an informal, non-adversarial manner. The court maintains a

roster of approved mediators or you can use private mediation services. The judge would still

make the final determination as to whether to grant the divorce.

ARBITRATION

In an arbitration proceeding, an impartial third party decides issues in a case. The parties

select the arbitrator and agree on which issues the arbitrator will decide. The parties also agree in

advance whether the arbitrator’s decisions will be binding on them or instead treated merely as a

recommendation. While an arbitrator may decide issues within a divorce case, the judge would

still make the final determination as to whether to grant the divorce.

USE OF PROFESSIONALS

Parties in a divorce may also seek the assistance of other skilled professionals to help

resolve issues in a case, such as attorneys, accountants or other financial professionals, and

various types of mental health professionals (e.g., psychiatrists, psychologists, social workers,

therapists). These professionals may help the parties resolve all of the issues or just specific

portions of the case. As with mediation and arbitration, parties making use of these

professionals to resolve issues in the divorce are encouraged to consult their attorney for advice

2

throughout this process. While this approach may resolve some issues in the case, the judge

would still need to make the final decision to grant the divorce.

COMBINATIONS OF ALTERNATIVES

Depending on your circumstances, it may be helpful for you to use a combination of

mediation, arbitration, and skilled professionals to resolve issues in your divorce.

CONCLUSION

Just as every marriage is unique, every divorce is unique as well. The specific

circumstances of your divorce determine what method or methods of dispute resolution are best

suited to resolve issues in your divorce. You are encouraged to ask your attorney about these

alternative dispute resolution methods to resolve issues relating to your divorce.

Using these alternative dispute resolution methods allows you to participate in the

decision on those issues, rather than leaving all of the issues to the judge to decide. And

presenting the judge with a case in which the only decision remaining is whether to grant the

divorce will permit that decision to be made more expeditiously. While the judge must be the

one to decide whether to grant the divorce, your role in deciding some or all of the other issues

can be enhanced through these alternative dispute resolution methods.

3

[Rule 5:4-2(h) Certification Forms Promulgated 12/04/06 as Approved by the Supreme Court]

SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION, FAMILY PART

Plaintiff

COUNTY

DOCKET NO. FM-

vs.

Defendant

CIVIL ACTION

RULE 5:4-2(h) CERTIFICATION BY

SELF-REPRESENTED LITIGANT

__________________________, of full age, hereby certifies as follows:

1. I am the Plaintiff Defendant in the above captioned matter.

2. I make this Certification pursuant to New Jersey Court Rule 5:4-2(h).

3. I have read the document entitled “Divorce -- Dispute Resolution Alternatives to

Conventional Litigation”.

4. I thus have been informed as to the availability of complementary dispute

resolution alternatives to conventional litigation.

I certify that the foregoing statements made by me are true. I am aware that if any of the

foregoing statements made by me are willfully false, I am subject to punishment.

Dated:

Published 12/04/2006, CN 10889-English page 1 of 1

[Rule 5:4-2(h) Certification Forms Promulgated 12/04/06 as Approved by the Supreme Court]

SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION, FAMILY PART

Plaintiff

COUNTY

DOCKET NO. FM-

vs.

Defendant

CIVIL ACTION

RULE 5:4-2(h) CERTIFICATION BY

ATTORNEY AND CLIENT

_____________________________, being of full age, hereby certifies as follows:

1. I am the attorney for the Plaintiff Defendant in the above captioned

matter.

2. I make this Certification pursuant to New Jersey Court Rule 5:4-2(h).

3. I have provided my client with a copy of the document entitled “Divorce --

Dispute Resolution Alternatives to Conventional Litigation”.

4. I have discussed with my client the complementary dispute resolution alternatives

to litigation contained in that document.

I certify that the foregoing statements made by me are true. I am aware that if any of the

foregoing statements made by me are willfully false, I am subject to punishment.

Dated:

**************************************************************************

_____________________________, being of full age, hereby certifies as follows:

1. I am the Plaintiff Defendant in the above captioned matter and am

represented in this divorce matter by _____________________________.

Published 12/04/2006, CN 10890-English page 1 of 2

2. I make this Certification pursuant to New Jersey Court Rule 5:4-2(h).

3. I have read the document entitled “Divorce – Dispute Resolution Alternatives to

Conventional Litigation.”

4. I thus have been informed as to the availability of complementary dispute

resolution alternatives to litigation.

I certify that the foregoing statements made by me are true. I am aware that if any of the

foregoing statements made by me are willfully false, I am subject to punishment.

Dated:

30:4C-12 Filing complaint; investigation; application for court order; hearing.

30:4C-12 Filing complaint; investigation; application for court order; hearing.

12.Whenever it shall appear that the parent or parents, guardian, or person having custody and control of any child within this State is unfit to be entrusted with the care and education of such child, or shall fail to provide such child with proper protection, maintenance and education, or shall fail to ensure the health and safety of the child, or is endangering the welfare of such child, a written or oral complaint may be filed with the division, or other entity designated by the commissioner, by any person or by any public or private agency or institution interested in such child. When such a complaint is filed by a public or private agency or institution, it shall be accompanied by a summary setting forth the reason for such complaint and other social history of the child and his family's situation which justifies such complaint; or, if this is not feasible, such summary shall be made available to the division, or other entity within the department that is investigating the complaint, as soon thereafter as possible. Upon receipt of a complaint as provided in this section, the division, or other entity designated by the commissioner, shall investigate, or shall cause to be investigated, the statements set forth in such complaint. If the circumstances so warrant, the parent, parents, guardian, or person having custody and control of the child may be afforded an opportunity to file an application for care, as provided in section 11 of P.L.1951, c.138 (C.30:4C-11). If the parent, parents, guardian, or person having custody and control of the child refuses to permit or in any way impedes an investigation, and the department determines that further investigation is necessary in the best interests of the child, the division may thereupon apply to the Family Part of the Chancery Division of the Superior Court in the county where the child resides, for an order directing the parent, parents, guardian, or person having custody and control of the child to permit immediate investigation. The court, upon such application, may proceed to hear the matter in a summary manner and if satisfied that the best interests of the child so require may issue an order as requested.

If, after such investigation has been completed, it appears that the child requires care and supervision by the division or other action to ensure the health and safety of the child, the division may apply to the Family Part of the Chancery Division of the Superior Court in the county where the child resides for an order making the child a ward of the court and placing the child under the care and supervision or custody of the division.

The court, at a summary hearing held upon notice to the division, and to the parent, parents, guardian, or person having custody and control of the child, if satisfied that the best interests of the child so require, may issue an order as requested, which order shall have the same force and effect as the acceptance of a child for care by the division as provided in section 11 of P.L.1951, c.138 (C.30:4C-11); provided, however, that such order shall not be effective beyond a period of six months from the date of entry unless the court, upon application by the division, at a summary hearing held upon notice to the parent, parents, guardian, or person having custody of the child, extends the time of the order.

Immediately after the court's order and while the child is in the division's care, the division shall initiate a search for the child's mother or father, if they are not known to the division. The search shall be initiated within 30 days of the court order. The search will be completed when all sources contacted have either responded to the inquiry or failed to respond within 45 days. The results shall be valid for six months after the date it was completed.

L.1951, c.138, s.12; amended 1962, c.197, s.15; 1991, c.91, s.326; 1991, c.275, s.2; 1999, c.53, s.27; 2004, c.130, s.52; 2006, c.47, s.122.

9:6-8.21 Definitions.

9:6-8.21 Definitions.

1.As used in this act, unless the specific context indicates otherwise:

a."Parent or guardian" means any natural parent, adoptive parent, resource family parent, stepparent, paramour of a parent or any person, who has assumed responsibility for the care, custody or control of a child or upon whom there is a legal duty for such care. Parent or guardian includes a teacher, employee or volunteer, whether compensated or uncompensated, of an institution who is responsible for the child's welfare and any other staff person of an institution regardless of whether or not the person is responsible for the care or supervision of the child. Parent or guardian also includes a teaching staff member or other employee, whether compensated or uncompensated, of a day school as defined in section 1 of P.L.1974, c.119 (C.9:6-8.21).

b."Child" means any child alleged to have been abused or neglected.

c."Abused or neglected child" means a child less than 18 years of age whose parent or guardian, as herein defined, (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; (3) commits or allows to be committed an act of sexual abuse against the child; (4) or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court; (5) or a child who has been willfully abandoned by his parent or guardian, as herein defined; (6) or a child upon whom excessive physical restraint has been used under circumstances which do not indicate that the child's behavior is harmful to himself, others or property; (7) or a child who is in an institution and (a) has been placed there inappropriately for a continued period of time with the knowledge that the placement has resulted or may continue to result in harm to the child's mental or physical well-being or (b) who has been willfully isolated from ordinary social contact under circumstances which indicate emotional or social deprivation.

A child shall not be considered abused or neglected pursuant to paragraph (7) of subsection c. of this section if the acts or omissions described therein occur in a day school as defined in this section.

No child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall for this reason alone be considered to be abused or neglected.

d."Law guardian" means an attorney admitted to the practice of law in this State, regularly employed by the Office of the Public Defender or appointed by the court, and designated under this act to represent minors in alleged cases of child abuse or neglect and in termination of parental rights proceedings.

e."Attorney" means an attorney admitted to the practice of law in this State who shall be privately retained; or, in the instance of an indigent parent or guardian, an attorney from the Office of the Public Defender or an attorney appointed by the court who shall be appointed in order to avoid conflict between the interests of the child and the parent or guardian in regard to representation.

f."Division" means the Division of Youth and Family Services in the Department of Children and Families unless otherwise specified.

g."Institution" means a public or private facility in the State which provides children with out of home care, supervision or maintenance. Institution includes, but is not limited to, a correctional facility, detention facility, treatment facility, day care center, residential school, shelter and hospital.

h."Day school" means a public or private school which provides general or special educational services to day students in grades kindergarten through 12. Day school does not include a residential facility, whether public or private, which provides care on a 24-hour basis.

L.1974, c.119, s.1; amended 1977, c.209, s.1; 1987, c.341, s.6; 1994, c.58, s.39; 1999, c.53, s.55; 2004, c.130, s.27; 2005, c.169, s.1; 2006, c.47, s.47.

9:2-7.1. Visitation rights for grandparents, siblings

9:2-7.1. Visitation rights for grandparents, siblings
1.a. A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.

b. In making a determination on an application filed pursuant to this section, the court shall consider the following factors:

(1) The relationship between the child and the applicant;



(2) The relationship between each of the child's parents or the person with whom the child is residing and the applicant;

(3) The time which has elapsed since the child last had contact with the applicant;

(4) The effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing;

(5) If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;

(6) The good faith of the applicant in filing the application;

(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and

(8) Any other factor relevant to the best interests of the child.

c. With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child's best interest if the applicant had, in the past, been a full-time caretaker for the child.

L.1971,c.420,s.1; amended 1973,c.100; 1987,c.363,s.2; 1993,c.161,s.1.

Taking Back Your Former Name or Changing Your Name in divorce

Taking Back Your Former Name or Changing Your Name in divorce. When you get a divorce, the judge may allow either spouse to resume a former name or to take a new name. If this relief is granted, you are not required to begin using the new name. If you want to use the new name, you will need to show your final judgment to agencies such as the Motor Vehicle Commission, Social Security, and your bank.

source http://www.lsnjlaw.org/english/family/divorce/divorcenj/divch1/index.cfm#ch1prep

Personal Injury Awards in divorce

Personal Injury Awards in divorce. If one party was injured during the marriage, the other party may be entitled to a portion of any personal injury award based on lost earnings. This may be true even if the award is not received until after the parties are divorced. This may be the type of situation where you will need the services of an attorney in order to actually receive what you are entitled to receive. ) Keep in mind that receiving a personal injury award may affect your eligibility for public benefits.

source http://www.lsnjlaw.org/english/family/divorce/divorcenj/divch1/index.cfm#ch1prep

Health Insurance if divorced

Health Insurance if divorced

If your spouse works for an employer with 20 or more employees and his or her employer provides him or her with group health benefits, you can request that your spouse continue to cover you under his or her insurance policy for a limited time after the divorce. The law that requires employers to offer this continuation or extension of health coverage in certain instances where coverage under that plan would normally end is known as COBRA, which stands for Consolidated Omnibus Reconciliation Act of 1986, the official title of that federal law. If your spouse’s employer does not have health insurance, or is not covered by COBRA, you can request that the court order that he or she pay for the cost of insurance for you and your children.
source http://www.lsnjlaw.org/english/family/divorce/divorcenj/divch1/index.cfm#ch1prep

Pensions and Retirement Accounts in divorce

Pensions and Retirement Accounts. If you or your spouse has a pension, you will probably want to consult a lawyer. To divide a pension, you will need to get a special evaluation. A pension expert must estimate the value of the pension at the time it will be paid and tell the court how to determine the amount of the pension that should go to the other spouse. The expert will prepare a Qualified Domestic Relations Order (QDRO), which will explain how to divide the pension. This order must be approved by the court. The portion of the pension that goes to the other spouse is usually based on the number of years the parties were married.


source http://www.lsnjlaw.org/english/family/divorce/divorcenj/divch1/index.cfm#ch1prep

Kenneth Vercammen Law Office 25th Anniversary Party Friday, July 30, 2010

Kenneth Vercammen Law Office
25th Anniversary Party
Friday, July 30, 2010


"Celebrating 25 years of providing excellent service to clients and the community"
1985-2010
Happy Hour, Open House, Client & Community Appreciation Social. Open to the public 4-7 PM

Food, Refreshments, T- shirts and special gifts

The Law office is located at 2053 Woodbridge Avenue, Edison, NJ 08817 near the Nixon Post Office, approximately 1/2 mile from Route 1/ Wick Plaza, and 1 mile from Middlesex County College. There is 50 parking spaces nearby on Russell Ave. and Lillian St. around the corner from Kim’s Kafe, on Woodbridge Ave. near the Green Derby Tavern, and across the street on School House Lane.
Visit our website at www.njlaws.com for Directions and other details or call and we will fax directions or email at KenV@njlaws.com

Kenneth Vercammen, Esq. at (732) 572-0500(Law office)
Fax form to 732-572-0030 or email
kenvnjlaws@verizon.net

-Yes, We will be attending the party

Name: _____________________________
email: _____________________________
http://www.kennethvercammen.com/25th.party.html

Equitable Distribution of Marital Assets and marital debt NJ

Equitable Distribution of Marital Assets and marital debt NJ

Equitable distribution refers to how to divide property and debts that were incurred during the marriage between the parties under New Jersey divorce laws. Property and debts are not automatically divided 50/50, although they sometimes are. In dividing property, the judge will decide what is fair. If you have a substantial amount of property, you will probably want to consult with a lawyer about equitable distribution.

Normally, decisions about dividing property and debts cannot be changed after the judgment of divorce. In unusual cases, you may be able to get a change if you can show the court that there is a very good reason to change the decision.

Marital property can include:

Real property (a house or land).
Personal property (furniture or cars).
Severance pay, pensions (even though you may not receive the money until sometime in the future), and personal injury awards.
In deciding the issue of equitable distribution of marital property, the judge must do the following:

Decide what property is marital property.
Determine the value of each piece of property to be divided.
Determine how the property will be divided between the parties.
Top of page

Equitable Distribution of Marital Debt. Marital debt is defined as any debt brought about by either party between the date of their marriage and the filing of a divorce complaint. However, the court may not consider all debt acquired during that time to be marital debt. Debt that comes from purchasing items not related to the marriage, especially purchases made after a separation, may not be subject to equitable distribution. In that situation, the court will often decide that only the spouse who incurs that non-marital debt is responsible for it.

Warning: See a lawyer if you or your spouse has significant debt.

In deciding the issue of equitable distribution of marital debt, the judge must do the following:

Decide what debt is marital debt.
Decide how much debt each party will be responsible for.
Generally, if the parties incur debts during the marriage, they are both potentially responsible for it. However, it may be possible to prove that a debt belongs to only one party. The other party will have to show that the debt happened after the parties stopped living together, or that the debt is for items unrelated to the parties’ relationship.

Warning: If you are separated, and your spouse is authorized to use your credit card, you will probably want to cancel that authorization even before your divorce is final.

In deciding how to divide property and debts, the court must look at a number of factors, including:

The length of the marriage.
The age and physical and emotional health of both parties.
The income or property each party brought to the marriage.
The parties’ current economic circumstances.
Any written agreement between the parties concerning property distribution.
The custodial parent’s need to own or use the parties’ home and household items.
Expected future medical or educational costs for a spouse or child.
Any other factors the court finds relevant.


Special Considerations

Pensions and Retirement Accounts. If you or your spouse has a pension, you will probably want to consult a lawyer. To divide a pension, you will need to get a special evaluation. A pension expert must estimate the value of the pension at the time it will be paid and tell the court how to determine the amount of the pension that should go to the other spouse. The expert will prepare a Qualified Domestic Relations Order (QDRO), which will explain how to divide the pension. This order must be approved by the court. The portion of the pension that goes to the other spouse is usually based on the number of years the parties were married.



source http://www.lsnjlaw.org/english/family/divorce/divorcenj/divch1/index.cfm#ch1prep

Alimony/Spousal Support NJ

Alimony/Spousal Support

Alimony refers to support paid by one spouse to the other to help the other spouse continue to live the way he or she lived while married. Alimony may be awarded to either party in a divorce action. The rules of alimony apply to both parties regardless of gender. Keep in mind that receiving alimony may affect your eligibility for public benefits. Please see Important Information About Doing Your Own Divorce.

There are several different types of alimony.

Permanent alimony. Generally, permanent alimony is awarded only if the parties have been married for a very substantial time period, or if you are financially dependent or permanently unable to work because of disability or lack of skills or work experience. You may get alimony for the rest of your life or until you remarry. Either party may apply to the court after the divorce to adjust the amount of alimony when there has been a change in the parties’ circumstances.
Limited duration alimony. You may get temporary alimony until the occurrence of a particular event, such as when you get a job. In determining how long to grant alimony, the court must consider how long it will take you to improve your earning capacity so that alimony is no longer needed. The court can change the award based on changed circumstances or if the expected event does not occur. The court can change the amount of the award but will rarely change the length of time for alimony to be paid.
Rehabilitative alimony. You will probably get temporary rehabilitative alimony if you are likely to be able to support yourself after more education or training. You must show the specific steps for rehabilitation and the amount of time they are expected to take. This type of alimony can also be changed based upon changed circumstances.
Reimbursement alimony. You can get this type of alimony if you supported your spouse through school or training and expected to benefit from your spouse’s increased income after finishing school.
In deciding whether or not to award alimony, the court should consider a number of factors. These include:

The parties’ actual needs and ability to pay.
The length of the marriage.
The age and physical and emotional health of both parties.
The standard of living established during the marriage and the parties’ abilities to maintain a reasonably comparable standard of living.
The parties’ earning capacities, educational levels, vocational skills, and employability.
The length of time the party seeking alimony has been out of the job market.
The parental responsibilities of the party seeking alimony.
Each party’s financial or non-financial contributions to the marriage.
Any other income available to the parties.
The equitable distribution of property and debts.
The tax consequences of any alimony award.
Any other factors the court finds relevant.
source http://www.lsnjlaw.org/english/family/divorce/divorcenj/divch1/index.cfm#ch1prep

Types of Relief in a Divorce Complaint

Types of Relief in a Divorce Complaint

You must decide what you want and ask for those things in your divorce complaint. For example, you can ask the court to:

Grant alimony (also called spousal support). When you complete your complaint, you only need to make a general request for alimony/spousal support. You do not need to specify a dollar amount at this time.
Divide property (also called equitable distribution):
Divide personal property (such as furniture or cars);
Divide real property (such as a house or land); and
Divide debts.
You do not need to specify the details concerning division of property in your complaint.
Allow you to change your name.
Order that one or both parties have custody of the minor children.
Order that one or both parties have parenting time/visitation with the children. Once again, this is a general request. You do not need to specify the details concerning custody or parenting time/visitation.
Order child support. You do not need to specify a dollar amount in the complaint, but you do need to make a general request.
source

The Divorce Complaint NJ

Preparing Your Divorce Complaint
The complaint is the document that begins your case and presents your situation to the court. The complaint also contains what you are asking the court to order. This is called legal relief.

Information Required by the Court
The following is a short list of the information that should appear in your complaint.
The names and addresses of you and your spouse. (See paragraphs 1 and 6 on the complaint.) 

Note to victims of domestic violence: If you are hiding from your spouse because you are afraid, you do not have to write your street address and phone number in the body of the complaint
If you are afraid to disclose your address, you will need to provide a post office box number or an alternative address where you can receive mail. You should consider obtaining this alternative address through the New Jersey Address Confidentiality Program (ACP), which is a program designed to help victims of domestic violence who have relocated for their safety. The program limits the abuser’s access to information that would reveal the victim’s new location and allows the victim to receive first-class mail by way of the New Jersey Department of Community Affairs. For further information about the ACP or to register for the program, call 1-877-218-9133 or visit the New Jersey Coalition For Battered Women's Web site. You may also register as a participant in the program by contacting your county domestic violence program. For the address or phone number of your county domestic violence program, call the New Jersey Coalition for Battered Women at 1-609-584-8107 or visit the Coalition Web site or New Jersey’s Domestic Violence Programs by County (from the NJ Department of Community Affairs Division on Women). Your alternative address goes on the top of the complaint so that the court can contact you. Depending upon the particular facts of your case, the court rules will require you to file your complaint in a county where you or your spouse now lives. (See Filing the Complaint With the Court.) If the rules require you to file your complaint in the county where you now live and you don’t feel safe even having your spouse know which county you live in, you should apply for an alternative address through the Address Confidentiality Program described above.
The date of your marriage.
The reason you are seeking or grounds on which you are basing a divorce. If you are seeking a no-fault divorce, you must state the date you and your spouse began to live separately, and where you lived when you separated. If you are seeking a fault divorce based on extreme cruelty, you must describe the acts of cruelty on which you are basing your complaint. List the dates of all acts of abuse that occurred from the day you were married until the date that is three months before you sign and date your divorce complaint.
Confirmation that you have met the one-year residency requirement.
Where you lived when you had been separated from the defendant for 18 months or when the defendant committed acts of cruelty against you or when you and the defendant had experienced irreconcilable differences for a period of six months
The names and ages of any children.
A list of any prior court actions between you and your spouse in New Jersey or in any other state where you lived—this could include court orders for adoption of children, child support, custody, visitation, or domestic violence restraining orders. Make sure to include the docket numbers of those court actions.
The relief you seek besides the divorce, such as custody, parenting time, alimony/spousal support, child support, or permission to use another name. Remember: This is an important part of your complaint. If there is anything that you want the court to order as a part of your divorce, you must make a general request for it in this section of your complaint. For example, if you are seeking spousal support or child support, you do not need to specify a dollar amount, but you do need to let the court know that you are requesting support. You and your spouse will agree to the specific amount in a settlement agreement or the judge will make a decision later.
At the end of the complaint) is an additional statement, called a Certification of Verification and Non-Collusion, which you must sign. It states that you are making your complaint in good faith, that all the claims are true, that there are no other pending actions involving your marriage, and that no other people need to be included in this case.
Now is a good time to review all of the documents you gathered together relating to your marriage to help you decide what legal relief you will be asking for in your complaint.
Source: http://www.lsnjlaw.org/english/family/divorce/divorcenj/divch1/index.cfm#ch1