Monday, August 14, 2017
Recent NJ Supreme Court decision seriously changes the rules for a parent's ability to move out of state when other parent disapproves
A recent decision of the New Jersey Supreme Court called Bisbing v. Bisbing, decided only on August 8, 2017, has provided a major shift in balancing the interests of custodial and non-custodial parents when a custodial parent seeks to move out-of-state with his or her child(ren). In looking at this recent decision, we first examine what the courts had to look to in such contests when one parent sought to move and the other did not consent.
Since 2001, there has been a standard that a custodial parent (or parent with primary residence) had to meet when seeking to move out-of-state with his or her child or children. Under the guidelines set forth in the NJ Supreme Court decision of Baures v. Lewis, a case decided in 2001, the Court made a distinction between two types of applications when a parent sought permission to move. The first was when both parents shared physical custody of their offspring. In that case a change of custody application was required. The second was when the custodial parent had primary residential custody and the main issue was providing for visitation with the parent of alternative residence. The New Jersey Supreme Court, guided by various social sciences studies of the time, believed that there should be a presumption in favor of permitting a parent to move provided that the request was being made in good faith and not simply as an excuse to reduce the other parent’s time with the child; and 2) that there would be no harm to the child or children; and 3) that the parent of alternative residence (non-custodial parent) had been offered a reasonable visitation schedule that could include physical visits as well as things like phone calls, emails, Skype and the like.
Once the custodial parent had shown that the request to move was being made in good faith and offered evidence that there were sufficient reasons for such a move such as better employment opportunities, family support networks, better neighborhoods, that there had been fair dealings between the parents in the past and other factors (a total of twelve in all) then the parent of alternate residence would need to show why permitting such a move would be harmful to the children.
Bisbing v. Bisbing, A-2-16 (077533) has basically placed petitions to move out-of-state on the same footing as other requests to change or modify custody or visitation plans, whether court ordered or contained in consent agreements. The New Jersey Supreme Court notes that some of the social science studies it relied on in its Baures v. Lewis decision had not held up over time. It also noted that many other states had abandoned the principals of believing that it was not necessarily a harm to the child to have reduced contact with the parent of alternate residence.
The Court noted in Bisbing v. Bisbing, citing NJSA 9:2-4 that in determining custody arrangements, the court should focus on “arrangements that promote a child’s continuous interaction with both parents” and NJSA 9:2-2 that contains a policy favoring “frequent and continuing contact with both parents after” separation or divorce. It also cited the policy that “the rights of both parents shall be equal.” The Court looked at the standards applied in other custody and visitation applications that require a showing by the petitioning party that a “change of circumstances warranting modification” has occurred.
The Court took issue with its decision in Baures which required a petitioning parent who had primary custody of a child only to show that the move would not have an adverse affect on the child and that the modification would not have an “adverse affect” on the noncustodial parent’s ability to maintain a relationship with the child. It also disputed the notion held in Baures that a relocation that benefited the custodial parent would also benefit the child. While recognizing the effect of precedence when overruling its decision in Baures it mentioned that the Supreme Court had come to its conclusions in that case largely upon findings in the social sciences that had not necessarily held up upon further investigation. More recent studies questioned the supposed limited effect of allowing reduced contact with the non-custodial parent. In fact, it began asserting that having an active contact with both parents was beneficial to the child.
The outcome in Bisbing v. Bisbing is to place a dispute between parents when a custodial parent seeks to move out of state on the same footing as all other custody and visitation disputes. The Court holds henceforward that the same “best interests of the child” standard that applies in other applications for changes or modifications in child custody and visitation, or even changes to change a child’s surname, will apply to applications for permission to move out-of-state. Thus, there will no longer be a presumption in favor of the custodial parent in moving out-of-state to do so, after this recent significant Supreme Court decision.
Should you have plans to file a petition either for or against a parent moving out-of-state it is more important than ever to consult with a family law attorney.
Anthony Van Zwaren, Esq.
340 Clifton Avenue
Tuesday, August 1, 2017
Imagine you own an automobile that you lend to someone. That person gets pulled over by the police and is suspected of using drugs. The police decide not only to arrest the person, who might be a son or daughter, but they confiscate your automobile. Or say you want to buy a house and bring cash to closing. The police stop you with a large amount of cash and they deem it suspicious, and suggest it was going to be used to purchase drugs. Should that happen to you, you are about to enter a descent into the nether regions of the “justice system” in New Jersey. Presumptions of innocence or guilt do not matter because the forfeiture of property occurs under a so-called civil rather than a criminal proceeding. This means certain due process and Constitutional guarantees, for instance the right to have counsel appointed if you cannot afford an attorney, do not apply.
Nothing illegal has been committed, but the police can entertain the notion that these were going to be used for a drug purchase or some other criminal activity and seize the money. Doesn’t matter if you never get charged with any crime, you would have to fight to get your money back. And this can take time, and in the meanwhile you are without your money or other property.
There are two types of forfeitures, one involves actual items that may be considered criminal instrumentalities in themselves like controlled substances, illegal firearms, or money that was stolen from a bank. But what about property that is not involved as an instrumentality of a crime, like the automobile that someone was riding in when a fellow passenger is found by police to have drugs, or the house where the son of the owner decides to perpetrate some criminal act, and the mother or father’s house gets subject to civil forfeiture. These have nothing to do with the crime, they are not intrinsically illegal, and yet they might be subject to forfeiture to the authorities.
And there is no necessity for a criminal conviction. In fact, property can be seized and no charges ever brought. In one case that I was involved in, a group of people got stopped near the George Washington Bridge. They had just left Ohio. One person had cash because she just cashed her income tax refunds. Another had money that his mother had loaned him for the trip. They were pulled over because they were deemed suspicious (four black people in a car with out-of-state plates). No drugs or contraband were found, but the money itself was deemed suspicious because it was stored in a manner similar to that used by drug dealers, according to the police.
No charges were brought. The parties had to “prove their innocence” to the prosecutor by accounting for where the funds came from. Ultimately, the county prosecutor agreed to return the funds without going to court, but the parties had to agree not to sue the County for the withholding of their funds. Otherwise, they would have to go to court, and the County would only have to prove by a preponderance of the evidence that the money could have been connected to a drug purchase, without any proof of drugs.
And if you ever find yourself in such an unfortunate circumstance, you need to remember that you are not entitled to a public defender, you will not only have to pay your own court costs and attorney fees if you challenge the taking, but you may have to pay the fees for the state or county as well. When many takings are in small amounts, often only several hundred dollars, most people will just find it easier to walk away rather than to challenge the taking.
Remember the government has many incentives in conducting these types of proceedings. In New Jersey, the municipal governments retain 100% of the value of the property they seize while the Attorney General’s office retains 95%. These funds are often used to purchase shiny new police cars and other paraphernalia. Only seven states and the District of Columbia prohibit civil forfeitures as opposed to criminal forfeitures (where people are afforded their due process and constitutional rights). The rest of the states permit anywhere from 45% to 100% of the goods to be used by the authorities. In Philadelphia, for instance, a lucrative “forfeiture machine” operates where the City took in more than $69 million between 2002 and 2013. See Policing for Profit, 2d Edition, published by the Institute for Justice.
Reporters in Tennessee found that police officers patrolled the Interstate 40 westbound lanes where smugglers were known to haul cash back to Mexico rather than the eastbound lanes where trucks were often smuggling drugs to the East Coast.
NewsChannel 5, (2014, July 15) Retrieved from http://www.scrippsmedia.com/newschannel5/news/newshcannel-5-investigates/policing-for-profit/Timeline-265640441.html and cited in Policing for Profit, at 16.
New Jersey’s Use of the Forfeiture Laws Are Among the Worst in the US According to the Institute for Justice
The State’s forfeiture laws come under N.J.S.A. 2C:64-1 et. seq. Property subject to forfeiture can include patently criminal action can be taken as well as buildings or premises where offenses have been committed. N.J.S.A. 2C;64-1 covers property that is per se contraband like controlled substances, illegal weapons and the like.
However, N.J.S.A. 2C:64-3 applies to property that is not specifically contraband. This is property that might have been seized in the course of a criminal stop or investigation, but does not involve property that in itself is illegal. It may involve a car where drugs have been found, a house where someone engaged in prostitution or cash that is “suspicious” but not stolen and not shown to have been involved in a criminal transaction. In those cases, the prosecutor must file a complaint for the forfeiture of the property and the property owner must file an answer in the time proscribed by the Rules of Court. The government though, need not prove that the goods were involved in any criminal act or that the person whose property was taken knew that there was any illegal usage of their property. It is up to the property owner to prove their innocence to the government or court’s satisfaction.
As stated in N.J.S.A. 2C:64-4 “[T]he fact that a prosecution involving seized property terminates without a conviction does not preclude forfeiture proceedings against the property pursuant to this chapter.” So again, say your daughter is stopped on suspicion of using marijuana. She has cash on her that gets taken. No drugs are found and she is never charged. Do you necessarily get your money back? No. The owner
In order to be able to have the property returned, the owner of the property needshas to show “by a preponderance of the evidence that the owner was not involved in or aware of the unlawful activity and that the owner had of the property by an agent.” N.J.S.A. 2C:6-5. So unlike in the criminal law, the burden of proof against you is a mere preponderance of the evidence, not beyond a reasonable doubt, and the burden is upon you to demonstrate that the property itself is “innocent” and not connected with any criminal activity.
While this at least codifies the innocent owner idea that the SCOTUS denies recognition to, it still puts the owner at a great monetary and legal disadvantage. And when many seizures may involve property of relatively small worth, the legal costs will far outweigh the benefit to be obtained if one actually wins one’s case.
How Does New Jersey Fare Against Other States in Protecting Owners’ Rights?
At least in one way, the New Jersey Supreme Court recognizes certain constitutional rights beyond those that the United States Supreme Court will recognize. In State v. One Honda Accord, 154 N.J. 373 (1998) the New Jersey Supreme Court recognized that the property owner whose property was forfeited will have a right to a trial by jury because, under New Jersey jurisprudence, stating that “the right to trial by jury will be an inconvenience to the State when it seeks to forfeit innocent property. Mere inconvenience, however, cannot justify the denial of a constitutional right. Honda, 154 N.J. at 393.
Citing the above-mentioned study, Policing for Profit, by the Institute for Justice, a recent article described the use of civil forfeiture by law enforcement in New Jersey is among the worst in the nation. (S.P. Sullivan, “New Jersey Allowing Cops to Seize Assets Among ‘Worst in Country’ Report Finds”, http://www.nj.com/politics/index.ssf/2015/11/nj_cops_seize_millions_a_year_re.html. An estimated $72 million in forfeiture proceeds was reported by county prosecutors from 2009 to 2013 and another $7 million a year came from federal “sharing” programs. While the county prosecutors do reveal the proceeds that they receive from civil forfeitures, no such information is available for the various local police agencies or for the State Attorney General’s office itself. But again, given the fact that the towns and cities of New Jersey receive 100% of the proceeds back from civil forfeitures, it is in their interest to keep this money conduit available, regardless of whether justice is actually served.
There has only been one bill, S-2267, that has been passed by the New Jersey legislature to attempt a minimal reform at least by way of offering more transparency in the use of these civil forfeiture assets. The bill would have required every New Jersey county prosecutor to compile and submit an annual report to the Attorney General on how much money or property was seized and whether the person from whom property was taken was represented by a lawyer and how the forfeited profits were used by law enforcement. This bill was passed through both houses in January 2017 and then promptly vetoed by our governor, Christie in February claiming that it would impose an undue burden on prosecutors. http://www.nj.com/politics/index.ssf/2017/02/christie_vetoes_bill_requiring_cops_disclose_seize.html Feb. 6, 2017.
It should be clear from a review of the forfeiture statute in New Jersey and the way that the laws have been applied on the Federal level with even less protection for the innocent owner, that despite the contortions of reasoning that the US Supreme Court has used to justify the lack of due process for so-called “innocent owners” and its continued attempt to continue the fiction of “guilty property” that dates back to the times of the Magna Carta, the use of these civil forfeiture statutes remain a travesty when used against people who have had no connection to criminal activity or who have merely had the misfortune of being related to someone who has, and then had their property forfeited.
Anthony Van Zwaren, Esq.
340 Clifton Avenue
Clifton, NJ 07011
Tuesday, June 13, 2017
Why Basic Auto Insurance Policies are not worth the money if you are ever in an accident.
I have been telling clients of mine, usually after they have been sued in an auto accident, not to waste time buying a “basic policy” instead of at least a standard policy and hopefully a standard policy with more than minimum coverage. People are being deceived, even on television commercials, into believing that by buying a basic policy they are insured. Yes, they receive an insurance card that they can show a police officer or a court as evidence of insurance coverage. But if you are ever in an automobile accident, either as a victim or as a perpetrator, you may find yourself sadly under covered by your insurance. If you are sued for personal injuries by another driver, you will find that your policy will not cover you or provide you with legal representation, unless you got the “optional” liability coverage. And if you have injuries and you sue the other driver, if they lack necessary coverage, you will find that you cannot get under/uninsured motorist’s coverage on your policy. And your so-called optional liability coverage is only for $10,000.00, so if you are sued, the most the insurance company will pay in your defense is $10,000.00 but at least they will represent you. While insurance regulations require insurance companies to inform purchasers of these basic policies that they will not have legal representation without the optional liability coverage, I have not found one client who came to me who at least applied for that minimal coverage. And it is doubtful that the brokers that sell these policies are explaining the risks.
In a standard policy, medical treatment under PIP (Personal Injury Protection) insures that recipients get treatment and that doctors are reimbursed based upon defined schedules for medical care. (New Jersey Administrative Code, NJAC 11:3-4.2. Deductibles and co-pays are defined under the law although additional coverage may be available. While some people may choose to use their health insurance instead of their auto coverage if they are in an accident, the one benefit of PIP coverage is that fee schedules are mandatory. That means a doctor or hospital can only bill you for what PIP’s schedule will pay for. The health care provider can charge you in excess of what your regular health insurance provider may pay. The benefit in using your health insurance though is that you will often have greater access to treatment without being challenged by the PIP provider as to unnecessary treatment.
The basic policy offers PIP coverage for the insureds only up to $10,000; and members of their families up to $15,000 and up to $5,000.00 for property damage coverage. Unless you have the optional liability coverage (up to $10,000) you are on your own if you get sued. As the basic policy should state in its provisions: the policy “may subject the named insured to a claim or judgment for noneconomic loss which is not covered by the basic or special automobile policy, and which may place his assets at risk, and in the event the named insured is sued, the insurer shall not provide legal counsel.”
If you have a basic policy, your coverage booklet should contain the following information: https://www.csg-inc.net/pdf/CSAA/CSAA-NJ-BP-1-New-Jersey-Basic.pdf
Even worse is the special policy. This is a policy to provide coverage to low-income people who are on Medicare and whose licenses are in good status. This is the so-called $1 a day policy. While this policy may keep you from going to court or even jail if you get stopped by the police or are in an accident, it is virtually useless if you are sued, or if you yourself are the victim of an accident and need treatment before what Medicaid is going to afford under the terms of the special policy. And again, if you get sued, you are on your own.
The State is at fault for encouraging drivers to have these types of policies. Insurance really was meant to provide coverage for the victims of automobile accidents and these policies fail to do that by not providing liability coverage. Yet they are being touted by insurers, even on television, as a way of proving that you have insurance coverage. The legislature should go back to the drawing boards and either remove these policies or require that they provide at least some form of liability coverage. As an attorney who has represented a number of drivers involved in accidents who thought they were “covered” I can say that they find that they either have to pay for their lawyers themselves or try and file for bankruptcy because they are usually going to be sued for money they do not have. Or they risk having a judgment against them that can be on their record for years to come.
Wednesday, May 31, 2017
Emancipation of a Minor in New Jersey
New Jersey has recently changed its conditions for emancipation of a minor to make it less of a matter of discretion for the deciding judge when deciding whether or not to terminate child support obligations when a child reaches eighteen years of age. Prior to the law being amended in January 2016, the emancipation of a child would occur under when a child reached age 18 unless certain conditions applied such as a child becoming financially independent. Howevcr, under earlier law, there was no automatic emancipation of a child at the age of majority, it was always left up to a judge’s discretion.
Emancipation could be extended beyond age 18 for a number of reason. First and foremost, is if there is a matrimonial settlement agreement or court order that extends the time of a child to receive child support. If a child is suffering under a disability that prevents that child from being self-sufficient, that could potentially defer the ending of child support obligations indefinitely. Likewise, if a child attends a college or vocational school, the child would still be entitled to child support. However, if a child is enrolled in a military academy like West Point or Annapolis, the child is deemed to have entered active military service and thus is considered emancipated. Bishop v Bishop, 287 N.J. 593 (1995). Depending upon family circumstances, this can even extend to graduate school.
Termination of child support could occur by changed circumstances. These can include a child’s death, marriage, termination of the parent’s parental rights, or entry into the military. It may also occur if a child graduates high school but does not continue school beyond high school. The child must no longer be depending upon the parents for support. Filipone v. Lee, 304 N.J. Super. 301 (App. Div. 1997).
Under the new statute N.J.S.A. 2A:17-56.67, a number of changes occurred as of January 2016. Prior to the change many property or marital settlement agreements provided that child support was capped at age 23 whereas now, emancipation operates by matter of law at age 23. Similarly, termination of child support is to occur automatically when the child marries, enters military service or dies or reaches age 19 unless exceptions occurred which included the above-mentioned conditions like school, disability, or out-of-home placement through the Division of Child Protection and Permanency.
Probably the most significant change is that the emancipation should be automatic unless there is a reason not to emancipate the child. The new statute provides that child support terminates by operation of law rather than by filing of a motion to emancipate or end child support by reason of changed circumstances. When Probation is involved, they are supposed to provide notices to parents of the proposed termination of child support when the child has reached the age of 23 which is the new cap when child support is to terminate. This notice is to be provided at least 180 days prior to the proposed termination date and then again at least 90 days prior to that date. In fact, Probation is supposed to cooperate with both parents by other means as well including text messages, emails or telephone calls. And rather than the non-custodial parent having to file to have the child emancipated, the custodial parent has the obligation to show why the child should not be emancipated.
So, all in all, the recent changes to the emancipation statute makes it more payor friendly, and helps restrict the discretion of the court. Before, when emancipation was sought for a child that turned age eighteen, a “fact-sensitive” inquiry was required to determine the right to continued parental support. Newburgh v. Arrigo, 88 N.J. 529, 543 (1982), a New Jersey Supreme Court decision. But now, the statute sets conditions when emancipation will automatically occur by reason of law, such as attaining age of 23, entering the military or other conditions set forth in this statute.
It also appears from the statute that the impact on child support orders would apply to orders that were issued before the enactment of the statute, so anyone who has a child support order, who knows for instance, that the child has attained the age of 23, should make sure that their child support obligation is terminated. In those instances where there is a reason to extend support beyond that age, for instance for a disability, the court will have to find a different condition for providing such financial support other than under the provision of child support.
Anthony Van Zwaren, Esq.
Friday, April 21, 2017
- What to know about prenuptials
Prenuptials are agreements between premarital couples or partners planning a civil union. They set out contemplated guidelines for protecting assets, property and earnings in the event of a later split up. In New Jersey, the guidelines fall under N.J.S.A. 37:2-32 through 37:2-41. It applies the provisions of the Uniform Prenuptial Agreement Act (“UPAA”) under New Jersey law. The UPAA is one of a number of agreements that attempt to codify and coordinate the application of laws across state boundaries to prevent potential conflicts in applying said laws. The Uniform Law Commission drafts proposed rules in areas such as arbitration, child custody, probate, and other areas of foreign and domestic law. The UPAA was promulgated in 1983 (civil unions were incorporated into the act in New Jersey in 2006). There is currently a revision pending called the Uniform Premarital and Marital Agreements Act that would also include rights and duties for marital agreements as well as premarital agreements. This was put forward in 2012, but as yet, it does apply yet in New Jersey.
This section spells out what is necessary to create a properly executed prenup agreement, what rights the parties to the agreement have and how they may be enforced, as well as what conditions may later be considered to have created an unenforceable agreement.
The first condition to a premarital or pre-civil union agreement is that it is enforceable like any other contract. It will govern he rights and obligations of the parties to property, the right to sell, use or transfer property as well as its disposition after separation or dissolution of the marriage. It may also spell terms for the modification or elimination of spousal support just as a marital settlement agreement may do. It can also govern the disposition of property or proceeds from things like life insurance policies in the event of the death of one or both of the spouses or partners.
A prenuptial agreement may not impact any right to a child obtaining child support as these agreements are only between the spouses or partners.
The prenuptial agreement takes effect when there is a marriage or a formal civil union. It can be revoked or amended only by written agreement of both parties.
A statement of the assets of the party should be incorporated and annexed as part of the agreement and it needs to be signed by both parties. N.J.S.A. 37:2-33.
Challenging a prenuptial agreement
In order to set aside an agreement, the party seeking to set aside the agreement has the burden of proof that either:
· The party executed the agreement involuntarily; or the agreement was unconscionable when the agreement was executed by reasons of non-full disclosure of assets or liabilities by the other party; that the party seeking to set it aside did not consult with independent legal counsel and did not voluntarily and expressly waive in writing, their right to consult with independent legal counsel; and they did not expressly waive any rights to a full disclosure of the earnings, property and obligations of the other party. N.J.S.A. 37:2-38.
One should always make sure that they have an attorney of their own choosing look over the terms of a premarital agreement before signing. The agreement should also spell out that, if the other party does not choose to have counsel, that they are making a knowing waiver of their rights to counsel. Never agree to have the same lawyer represent you and your future spouse or partner. This already creates the potential argument that the agreement was unconscionable and meant to favor one party (usually the one with the most assets or income) over the other. N.J.S.A. 37:2-38(c)
The issue of the unconscionability of a premarital or pre-civil union agreement is one to be determined by the court as a matter of law, and only if the conditions set forth in sub-section (c) are met. N.J.S.A. 37:2-38(d). Proof is by clear and convincing evidence, so the party seeking to abrogate the agreement has a burden greater than simply by “a preponderance of the evidence.”
Two significant amendments in the Act occurred recently. The term unconscionability had previously been defined under N.J.S.A. 37:2-32(c) as "[U]nconscionable premarital or pre-civil union agreement' means an agreement, either due to a lack of property or unemployability: (1) Which would render a spouse or partner in a civil union couple without a means of reasonable support; (2) Which would make a spouse or partner in a civil union couple a public charge; or (3) Which would provide a standard of living far below that which was enjoyed before the marriage or civil union." This sub-section however was deleted in 2013. Also as to burden of proof in enforcement of a premarital agreement N.J.S.A. 37:2-38(b) was deleted in 2013. This sub-section had previously permitted a party to argue that unconscionability at the time of enforcement of the agreement. With the deletion of this section, a party could henceforward only argue that the agreement was unconscionable when executed. These changes were set forward in 2013. https://www.judiciary.state.nj.us/legis/P.L.%202013,%20c.72%20-%20Revsies%20law%20regarding%20enforceability%20of%20premarital%20and%20pre-civil%20union%20agreements.pdf