Thursday, January 21, 2016

How do the recent changes in the alimony laws in NJ affect you?

This article summarizes some of the recent changes and how they modify past law on the awarding of alimony

1.  What happened to permanent alimony under the revised NJSA 2A:34-23

What used to be permanent alimony is now going to mainly consist of open durational alimony unless one has been married for twenty years or more. The recent changes in the law limit alimony to the length of the marriage for those married nineteen years or less.

2.  What are the other types of alimony in NJ?

Rehabilitative alimony is described as alimony paid to the awarded spouse to permit that person to enter the work force or to upgrade his or her employable skills. Reimbursement alimony is awarded for the spouse who may have paid for the education of their partner to get a trade or degree. For instance if one spouse paid for the other to get a law or medical degree, that spouse is entitled to reimbursement. The court weighs factors in deciding what type of how much support should be provided. These may include the need and ability to pay of the parties; the age, physical and emotional health of the parties; earning capabilities; amount of time out of the job market and other factors, Added to the revised law was the consideration of any pendite lite support that may have been paid by one spouse to the other. Pendite lite support means any spousal support that came before the judgment of divorce. The court must also provide specific findings of fact when making an alimony award and cite the statutory factors that were relevant and the weight employed.

3.  What is the guideline for the length of alimony awarded?

The biggest change in the law was that for any marriage (or civil union) less than 20 years in duration, the alimony will not exceed that of the length of the marriage or civil union except in exceptional circumstances. This means if you were married for nineteen years expect nineeteen years of alimony whereas if you were only married for five years, the award could not exceed five years of alimony. The court is also to consider factors such as the need to maintain separate households and other factors concerning each parties future standard of living, post divorce. An exceptional circumstance where the court may exceed the durational limits is where one spouse has a chronic illness; where one party received a disproportionate share in equitable distribution; the role of being a caretaker for a child, and a variety of other factors.

4.  How does retirement affect alimony?

Previously to the recent change in the law, when an obligor spouse is ready to retire, that person must file a motion with the court showing a change of circumstances requiring a modification of alimony. However, now the statute says there is a rebuttable presumption that alimony may be modified or terminated upon the prospective retirement of the obligor when that person has reached "full" retirement age. Arrearages are not modified but future payments may be modified. If a person seeks to retire before they have reached their full retirement age they shall have the burden of proof by a preponderance of the evidence to show that they wish to retire in good faith. In other words, if your husband is eligible to retire at 65 and he chooses to retire at age 45 to go and live in the Bahamas, that is not a good faith reason to retire. However, a disability that keeps that person from working may be. Other factors may be influential as well, such as employer incentive programs to get employees to retire early in exchange for some benefit, etc.

5.  Does the revised law influence prior alimony awards?

If you were awarded permanent alimony before the law was passed in September 2014, nothing would change the obligor's responsibility to continue payment. Also, if there are provisions in a property settlement agreement or final judgment of divorce that contradict any of these changes, then those terms would remain enforceable. For instance, if a PSA says that the spouse continues to pay alimony post-retirement, then the obligation remains.

6.  Cohabitation

Another major change is the effect of cohabitation. The new section states that the court shall consider the length of time of a relationship in a former spouse's cohabitation in determining if alimony should be suspended or terminated. It adds that a court may not find the absence of cohabitation "solely on grounds that the couple does not live together on a full-time basis."

Additional resources provided by the author

For a full text of the bill see below.




Monday, January 18, 2016

Recent Appellate and Supreme Court decisions involving the DCPP in cases involving allegations of abuse or neglect
As always, cases involving the Division of Child Protection and Permanency are always evolving. Trial courts often ignore decisions that have gone up on appeal to the Appellate or Supreme Court.  One recent decision was D.C.F. v. E.D.-O. 223 N.J.166 (2015). It overruled prior Appellate Division decisions that indicated that the trial court was to take cognizance of a parents' ability to overcome parenting deficiencies at the time that a fact-finding is held. The mother in this case, who had been found negligent in leaving her young child alone in a running car while going into a store some distance away, argued that she should not have been found negligent because 1) there was no proof that the child was harmed; and 2) that there was no proof that the child continued to face a risk of harm by the time that the hearing was held. This was argued after a recent Appellate Division decision implied that a parents' actions in overcoming deficiencies could be used to offset a negligent act that might have precipitated the involvement of the Division. DCPP v. M.C. 435 N.J. Super. 405 (App.Div. 2014). certif. granted 220 N.J. 41 (2014). While rejecting the mother's argument, the Supreme Court did uphold that the trial court must perform a multi-faceted inquiry of the event that precipitated the Title 9 litigation and proceeded to analyze a number of cases where a child had been left alone in different circumstances. While the Supreme Court took umbrage of the propensity of the Division to categorically find that leaving a child alone in a motor vehicle was evidence of neglect, it nevertheless did find that in the circumstance under review it was evidence of a failure to provide minimum supervision. The Supreme Court did not find the argument that the trial court overlooked the situation that the mother was in at the time of the fact-finding, saying that it would permit a trial court to overlook the "aberrational conduct" that led to the Title 9 action in the first place. While not a win for the mother, it did challenge the Division's belief that any showing that a parent leaves a child in a car is evidence of abuse or neglect. The Supreme Court also said that the matter was to be remanded and the focus was to be on the actions the mother took initially not at the time of the fact-finding, but that the mother could still argue that the "totality of circumstances" at that time may still cause a trier of fact to determine that the action was merely negligent, and not grossly negligent.

Oftentimes, courts fail to follow the proper procedures required under Title 9 or Title 30 when considering a fact-finding against a parent, the removal of a child from its parent, or the placement of a child with a non-custodial parent without a proper hearing. The seminal case that held that before a child could be placed with a non-custodial parent was DYFS v. G.M. 198 N.J. 382 (2009). The Supreme Court held that before a placement could be made with the non-custodial parent, a hearing must be held to decide whether it was safe to return the child to the custodial parent. In other words, had the custodial parent remediated the issue that led to the initial removal. A followup case amplified that even if a stipulation had been made that Title 30 services were required under N.J.S.A. 30:4C-12, it still did not find it appropriate to grant custody to the non-custodial parent absent a finding of abuse or neglect against the custodial parent. DYFS v. N.D. 417 N.J. Super. 96 (App. Div. 2010). Having seen cases where trial judges continue to ignore these requirements in some counties, it is extremely urgent that parents make sure they receive proper representation, whether through a public defender or a private attorney to ensure that the courts and the Division comply with the strictures and proof requirements established under the statutes and case law.
Anthony Van Zwaren, Esq.
340 Clifton Avenue
Clifton, NJ 07011
(973) 473-0112 x 1001, tony@avzlawoffice.com

Saturday, March 14, 2015

Affects of motor vehicle offenses occurring in New Jersey on out-of-state drivers

Affects of motor vehicle offenses on out-of-state drivers
March 14, 2015

One thing that a New Jersey should be aware of is that if he or she gets a ticket out-of-state, the driver will normally be assessed two points even if the points offense is higher in the state where the violation occurred. Two states, however, are not members of either the Drivers License Compact or the Nonresident Violators Compact, Michigan and Wisconsin.  However, for situations where a person’s driver’s license has been suspended, the person’s license will likewise be suspended in the other state. Many times, New Jersey residents move out-of-state and forget about a driving offense causing their license rights to be suspended. Then, often years later, the person tries to apply for a license in another state only to find out that they are unable to, because their license is suspended in New Jersey. The unfortunate driver will then have to clear their record in New Jersey in order to be able to get a license in their new state (in my practice this has happened mostly with people from Florida and North Carolina, but it can happen anywhere).
The next thing to recognize is that points are assessed differently in other states. For instance, New Jersey offers a 0 point offense called “unsafe driving”. This is often used by drivers who hope to avoid increased insurance rates coming with points. However, if that person is from out-of-state, the resident state may look at an “unsafe driving” and treat it as something similar to careless driving and assess points. So zero points do not mean zero points for the out-of-state resident.
Some states like Illinois don’t even assess points. They treat any moving violation as a step towards license revocation. So a driver may plea to an offense that carries no points in the state where the offense occurred, for instance failure to wear a seat belt or cell phone violation before points started getting assessed for the cell phone. The abstract in New Jersey may carry 0 points, however, that person may have accumulated a number of offenses in Illinois and face a license suspension. Other states follow this same methods.
So, it is always good to check with your attorney if you are planning to take a plea in New Jersey to make sure that the plea that may look good to a resident New Jersey driver also will look good on your motor vehicle back home. This is especially true for out-of-state commercially licensed drivers, because they face the prospect of a license suspension more quickly than a regular driver, even if they are driving their personal vehicle.




Monday, December 29, 2014

End of year update DYFS (DCPP) fact-finding cases

Recent Updates in Cases Involving the Division of Child Protection and Permanency

December 29, 2014

I have previously written in my blog regarding recent cases that have set limits on what the Division (DCPP) or the trial courts from making findings of abuse and neglect against parents who have not caused actual harm or created a substantial risk of harm to their children, but perhaps committed some anti-social act that causes the Division to hold a parent’s feet to the fire. One case we recently reviewed was NJDCPP v. M.C., a May 2014 case. The gist of the case is that a fact-finding abuse and neglect hearing must not only evaluate acts of abuse or neglect or acts that raise a substantial risk of harm, but also must balance that by evaluating the steps a parent or parents have taken to alleviate the harm, such as compliance with Division or court recommendations. New Jersey Div. of Child Protection and Perm. v. M.C., __ N.J. Sup. ___ (App.Div. May 5, 2014) (App.Div. A-2398-12).
In M.C. the Appellate Division reviewed a case where a fact-finding hearing proceeded, but the trial judge refused to entertain any testimony or evidence as to the parent’s situation at the time of the fact-findng.  M.C. also cited an earlier decision that criticized a trial judge for refusing to consider the steps that a parent had taken to remove the potential risk. New Jersey Div. of Youth & Fam. Servs. v. K..M., 136 N.J. 546, 550 (1994). “To the extent the judge concluded that improvement of M.C.’s conduct and conditions in the home was irrelevant to that issue in this fact-finding hearing, the judge erred.” (slip op. at 18), citing New Jersey Div. of Youth & Fam. Servs. v. K.A., 413 N.J. Super. 504, 512-13 (App.Div. 2010).
A more recent published decision, is New Jersey Div. of Youth & Fam. Servs. v. R.W. __ N.J. Sup. ___ (App. Div. Dec. 23, 2014). In the decision, the Appellate Division took the trial judge to task for basing a decision on two documents, a court report (a document prepared by the Division to the judge shortly before a scheduled court conference) and a screening summary, which is a paper that documents the initial referral to the Division of an alleged act of abuse or neglect.
In its decision, the Appellate Division noted that the Deputy Attorney General (State’s attorney, or DAG) stated to the court that it could not prove that the mother had left the child “in her room alone” (one of the allegations in the complaint) or otherwise engaged in inappropriate behavior towards her baby or towards the staff of the facility where the mother was located as she was on parole. Instead, the DAG said that she would rely on the Screening Summary for the admission that the mother used substances while caring for her child.
A Screening Summary is predominantly a hearsay document of people relating complaints to a person who simply reports the complaint somewhat as a 911 operator takes a report of a crime or a fire.  It is up to investigators who go out in the field to do an actual first-hand investigation to prepare what is termed an Investigation Report. Despite this, the parent’s attorney failed to object to the admission of the Screening Summary.
The Appellate Division looked at the untrustworthiness of relying upon statements supposedly made by the mother to a person at the treatment facility that was later relayed to the Division worker for the truth that the mother had allegedly used drugs while caring for her child. The Appellate Division further noted that the statement did not even indicate whether, if true, the mother used drugs while actually having the child in her care or in what manner she exhibited “poor parenting skills.” Thus in addition to relying on what should have been inadmissible hearsay, the Division still failed to establish, even if the assertions had been admitted, that the parent had committed an acdt of abuse and neglect as defined under N.J.S.A. 9:6-8.21(c).
The Appellate Division cautioned trial judges that in contested cases, when making a fact-finding decision solely on documentary submissions, particularly where a parent is not present as was the case here, that such reports should come from staff personnel or professional consultants and that judges need to fully assess evidential issues when including statements made by others, not subject to cross-examination.
Reiterating some earlier decisions, the Appellate Division said that the mere use of drugs is not sufficient to establish that an act of abuse or neglect occurred. Evidence of a risk of harm must be based upon more than a generalized knowledge of the risks posed by the use of controlled substances (or alcohol) but must be based upon a “fact-sensitive” analysis based upon actual “particularized evidence.” As noted in the decision, the trial court failed to establish anything in the record about the “magnitude, duration, or impact of R.W.’s intoxication.”
This decision also called attention to the serious consequences arising from a fact-finding against a parent. It creates “(1) the potential for a ‘dispositional order . . .plac[ing] the child in the custody of a relative or another suitable person for a substantial period of time[;]” (2) the potential for a future ‘Division . . . action to terminate parental rights[;]” and (3) “the Division’s recordation of the alleged abuser’s name ‘into a Central Registry’ whose confidential records ‘may be disclosed, on written request, to doctors, courts, child welfare agencies, employers [], and others[.]” Citing New Jersey Div. of Youth & Fam. Servs. v. A.L., 213 N.J. Sup. 1, 25-26 (2013).
It is very important, especially in those cases where the Division seeks solely to rely on its own records without live testimony, that parents do not acquiesce but make sure that the court takes note that these reports are often replete with hearsay and even outright inaccuracies. Parents should see that their attorneys make a record in those cases where only documentation is admitted, that all hearsay statements and worse yet, hearsay within hearsay statements be subject to scrutiny by the Court. In my opinion, it is never good practice to simply permit a fact-finding to be solely upon the basis of some unchallenged documents, but that at the very least the case workers must be made to testify and anyone else with relevant knowledge.
Another recent case that is significant but was not published as yet involved a mother who was reportedly using marijuana while caring for her two children. She initially refused to submit to drug tests and her children never appeared uncared for. New Jersey Div. of Youth & Fam. Servs. v. D.C., ___ N.J. Super. __ (App. Div. Sept. 4, 2014). A psychologist performed an evaluation and found that although she lacked insight into her cannabis dependency, she had been compliant with the Division programs for the past year (from 2011 to 2012). The Division’s expert made no finding as to the mother’s parenting abilities or the risk of harm to the children.  The mother tested positive for PCP in 2012 and the mother had not returned to treatment. As a result of these violations, the court placed the two daughters with their respective fathers.
The problem arose when the Division requested and the court granted custody to the children’s fathers and that the mother could only have visitation upon showing completion of a drug treatment program. Custody of one of the children was changed based upon a final restraining order having been entered against one of the fathers.
Reporting the history of the case, the Appellate Division noted that the mother had refused to have a urine screen done when her second daughter was born, but that the reporting hospital did not note any concerns regarding the health of the infant The record showed that the younger child had regularly seen a pediatrician, and was current on her vaccinations. The mother did not appear to be under the influence of drugs when seen by case-workers nor did her home appear to raise any concerns. However, later she tested positive for marijuana and missed three drug abuse assessments that the Division had ordered her to take.  The older daughter also reportedly missed some days of school.
Notwithstanding this, the Court noted that even a continued use of marijuana and failure to seek treatment does not necessarily  “support the conclusion that defendant’s conduct placed the children in imminent danger of impairment or at substantial risk of harm.” D.C. citing N.J. Div. of Youth & Fam. Services v. V.T., 423 N.J. Super. 320, 331 (App. Div. 2011). The Court noted that the earlier decision required at least a showing that the parent was caring for the child while under the influence because that would place a child at great risk of harm. In this case, the Appellate Division found that the Division did not establish that the mother’s use of marijuana had placed the children “in imminent danger or at substantial risk of harm.” As to the fact that the older daughter had missed a number of days at school, it was noted that the child was in kindergarten, that there is no law requiring attendance in kindergarten, and there was no evidence showing that the child was falling behind in school.
As to the marijuana, the Court noted that there was no evidence produced at the fact-finding that what level of marijuana the mother had in her system at the time of the tests or present any expert testimony as to whether the use of marijuana by the mother presented a risk of harm to her children.
The Appellate Division here, as in the first case, noted that the law does not permit judges to infer the impact of the use of a drug like marijuana upon the care of children in a parent’s custody without some form of evidence, especially if the parent does not appear to be under the influence; or in the absence of some sort of competent expert testimony.
The Court also found the trial court’s transfer of custody to the fathers to be objectionable when an adequate dispositional hearing had not been held and the parent had not been able to present testimony or cross-examine witnesses. The trial court had simply relied upon documentation submitted at the fact-finding that had been conducted more than six months earlier. For instance, the trial court admitted the report prepared by the Division’s expert but the expert himself did not testify and was not cross-examined. The Court found the Division’s position, which the trial court adopted, that the need for a dispositional hearing was unnecessary because the mother had been shown to be unfit to be totally objectionable writing that if that position were valid “then any parent who is found to have abused and neglected his or her children during the fact-finding hearing would no longer be entitled to a dispositional hearing.” Rather the requirement that a two step process be employed between the fact-finding and the dispositional hearing was emphasized by the Appellate Division.
These cases are very important, although the second case is not yet a reported decision and thus is not binding upon the trial courts. A thorough record is necessary at fact-finding to permit the higher courts a basis to see if the trial court had sufficient competent, material and relevant evidence to support a finding of abuse or neglect. Too often, judges rely on hearsay or even hearsay within hearsay (I was told that person A heard from person B) to establish a finding. Too often, a finding of use of a drug, without a finding of harm, is used to substantiate a parent of abuse or neglect. Too often, defense counsel fails to object to records that should not be admitted, or at least should be redacted for inadmissible evidence, while not forcing the court to hear live testimony. If the Division is not presenting its own witnesses, defense counsel can always subpoena the witnesses themselves. This applies to other witnesses like police officers, who often simply report what others have told them and report accordingly.
The Appellate Division and the Supreme Court have issued a number of important holdings that especially affect what constitutes adequate and inadequate proof of abuse and neglect.
Lastly, a major case came out of the Supreme Court of New Jersey involving a mother, who learned she was pregnant and who entered a bona fide methadone program to wean herself off of Percocet which she had been prescribed after suffering injuries in an auto accident. The infant suffered methadone withdrawal symptoms at birth. The mother had a prior drug history, as well as involvement with domestic violence with the child’s father, but the main basis for the finding was the methadone exposure to the child.
The Appellate Division held that that there could be a finding of abuse and neglect when harm to a child occurs regardless of whether the source of the harm was from illicit substances or from a prescribed medical substance or treatment plan. The Supreme Court countered that a mother acts reasonably when she exposes a child to a lesser harm (methadone withdrawal) to avoid a greater harm, namely her continued drug addiction. This case is significant for parents who may be accused of abuse or neglect when following a prescribed regimen of controlled substances or of using methadone to get off of more dangerous opiates. New Jersey Div. of Child Protection & Permanency. v. Y.N., __ N.J. ___ (Dec. 22, 2014).

Anthony J. Van Zwaren, Esq., offices at 340 Clifton Avenue, Clifton, New Jersey, has been an attorney for the past eighteen years and has been involved in cases with the Division for the past seven years, on both the trial and the appellate level. I can be reached at 973-246-9659 for further information.

Saturday, March 22, 2014

THE DIVISION OF CHILD PROTECTION AND PERMANENCY AND THE ISSUE OF MENTAL ILLNESS


A recent Appellate Division decision (unfortunately unpublished) deals with the issue as to whether mental illness in the absence of harm or threatened harm to a child can provide a basis for a finding of abuse and neglect under New Jersey Title 9.

 

In New Jersey Div. of Youth and Family Services v. L.F.,  (A-0982-12), a recent unpublished decision, the Appellate Court reversed the Family Court’s finding that a mother with chronic mental illness had committed abuse and neglect against her two children. The Division received a notice from local police that the mother had been acting out of control and ranting and raving. The mother was then taken to a local hospital where she was referred for outpatient treatment.

 

The mother told her caseworker that she was hearing voices.  The mother was diagnosed with “bipolar disorder or possibly an agitated depression with psychosis.”  As the case described, the mother had a long history of psychiatric hospitalizations.  In 2012, the Family Court found that the Division had proven, by a preponderance of the evidence, that the mother had neglected her children due to her non-compliance with treatment and refusals to take her medications.  The appeal was based upon the fact that the mother had never placed her children at risk of harm.

 

The Appellate Division ruled in favor of the mother, finding that the children were never harmed or recklessly creating a harm or the substantial risk of harm for her children under N.J.S.A. 9:6-8.21(c)(4)(b). This implies more than that there is a speculative risk of harm, but that there must be a showing that the parent has recklessly created a serious risk of harm to the child. DYFS v. J.L., 410 N.J. Super. 159, 168-169 (App.Div. 2009).

 

The Court found that C.F. had the benefit of living with the children’s father and her parents who were aware of the mental illness of the mother and were able to ensure the children’s safety. As a result, the Appellate Division ordered that the mother’s name be removed from the Central Child Abuse Registry Index. (CARI).

 

As mentioned above, this is an unpublished decision, meaning that it is not binding upon lower courts. However, it is indicative of recent New Jersey Supreme and Appellate Division decisions that the Division has to prove cases by a preponderance of the evidence showing that a harm or substantial risk of harm has occurred. They must also show that the parent has showed something beyond simple negligence. While a person with severe mental health issues might present a risk of harm, if that person is treating and if there is a support network to ensure the children’s safety, there is not sufficient cause, at least according to this judicial panel, to find that an act of abuse has occurred.

 

 

Anthony Van Zwaren, Esq.
340 Clifton Avenue
Clifton, NJ 07011