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:

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