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.

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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.

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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

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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.

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[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: