New Jersey Family Law Blog

Child support payments should not be linked to the amount of parenting time

That is the view of Ruth Bettelheim in an op-ed published in the New York Times yesterday.  in the column she reviews the forty years since California introduced no-fault divorce and based on the fact that divorce is here to stay, asks the question of how the process can be made better for any children involved.

One idea is to move away from linking the amount of child support that is paid to the amount of parenting time.  The New Jersey child support guidelines calculate child support based on amongst other things the income of the parties, number of children, age of the children and the number of overnights each parent has with the child.  The rational for this is that variable costs such as food etc are related to the time a child spends with a parent. However as Bettelheim in her opinion piece points out:

"As child support is often linked to the proportion of time the children spend with each parent, the days and hours of their future lives become tools for one parent to extract payment from the other. This is a recipe for warfare, with the children’s well-being both the disputed turf and the likely casualty."

It is hard not to agree with this observation.  The parent of primary residence (PPR) has a vested self-interest in maximising the amount of time the children spend with them in order to obtain the most child support. Post-judgment motions are often seen where the parties dispute the number of overnights each had for the purposes of child support calculations.

It is in a child's best interests to spend time with both parents. The reality is that a child may have two bedrooms, one with each parent.  Why not decouple the amount of child support from the amount of parenting time, and look purely at the needs of the child and the ability of the parties to pay ? This argument has merit and is certainly worthy of discussion, but I don't foresee the New Jersey child support guidelines changing anytime soon.

Do you have a constitutional right to parenting time with your children ?

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That is the question that jumped out to me when I read the June 5, 2009 unpublished appellate decision in Cole v. Cole.  In this case, the father of three young children brought a motion for a change of custody following repeated denials of court ordered parenting time, allegations of parental alienation and concern about the welfare of his children living in a home where there was substantial smoking. The trial court judge denied the motion and request for a plenary hearing. 

On appeal, the appellate panel concluded that the father had failed to show sufficient changed circumstances such that a "genuine and substantial issue" regarding custody existed. The opinion went on to say "[i]f indeed, parenting time is being denied, enforcement remedies should be sought." 

What enforcement remedies did the appellate panel have in mind ? Money damages do not compensate for lost parenting time and it is not something that can ever be replaced. The U.S. Supreme Court has stated that being a parent is a fundamental liberty right protected by the U.S. Constitution, so in the case of divorced parents why does a constitutional right to parenting time not follow ?  If you take that line of argument why shouldn't the default standard for parenting time following a divorce be equality i.e. 50/50 unless the situation of the parties or the age of the children dictates otherwise ? 

Child psychologists have shown that children benefit from having two parents in their lives, so in cases where there is a repeated pattern of parenting time being denied to one parent, children are being harmed as a result.  At some point this must raise a "genuine and substantial issue" regarding the health and welfare of the children that justifies a plenary hearing on the issue of custody.   

I hope that at some point the New Jersey Supreme Court will accept a case that addresses this issue. The Court only hears cases that present questions of general public importance.  Whether divorced New Jersey parents have a constitutional right to parenting time and the appropriate remedies for infringement of those rights is a case I would like to see heard.

Don't let your children be casualties of divorce

I read with interest the recent post by Paula Lawhon on her San Francisco mediation blog on how custody litigation damages children. I agree with her comments that:

"Regardless of the status of the intimate relationship between the parents, they will always be parents. While the relationship between the parents changes, it does not change the fact that the children still need both of their parents in their lives. It can be hard to put aside anger and other strong emotions following a difficult separation, but is a task made easier when both parents are committed to putting the best interests of their children first."

Separating child custody and parenting time from resolution of financial issues is something everyone going through a divorce should strive for.  Mediation of child custody and parenting time issues whether done privately with an attorney or through one of the free services provided by the New Jersey Judiciary at each county court house is something that should be considered.  

While it is impossible for children not to be effected by a divorce, they should not become casualties of divorce, as the slideshow below poignantly reminds us:

Casualties Of Divorce

View more presentations from Sam Shamir.

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• Children harmed by sole custody, report says (thestar.com)

Each party has the responsibility to provide their own financial information when attorney fees are sought

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The unpublished April 15, 2009 appellate opinion in Bove v. Bove highlights the need to provide the court with financial information when counsel fees are sought in a post-judgment motion. 

N.J.S.A 2A:34-23 requires a court “to consider the factors set forth in the court rule on counsel fees, the financial circumstances of the parties and the good or bad faith of either party” when considering whether to award attorney fees.  Chetstone v. Chetsone, 322 N.J. Super. 250, 256 (App. Div. 1999).

In determining the amount of any fee award, New Jersey Court Rule 5:3-5(c) requires the court to consider the following factors: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained: (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award. An attorney must also file a certification of services. See Rule 4.42-9.

Motions involving issues of custody, support, alimony or equitable distribution automatically require an updated Case Information Statement (CIS) to be filed and so contain the necessary information the court may require to assess financial need and ability to pay.  See Rule 5:5-2.  However, for motions where a CIS is not required, the court has to rely on information in the parties’ certifications.

In Bove, the plaintiff, ex-husband was forced to make a motion to allow him to take his daughter on vacation to Mexico, something the court decided in his favor, finding that his ex-wife had not acted with “honesty in belief and purpose.” He sought counsel fees and noted in his certification that his ex-wife had recently sold an investment property for $202,500 and had the ability to pay out of the profit. In her reply certification the ex-wife did not provide any financial information or refute the claim that she had the ability to pay.

On appeal, the appellate division upheld the motion judge’s award of $5,000 in attorney fees finding that that the “trial court did not abuse its discretion when it ordered defendant to pay” based on “the financial information before it.” The appellate opinion noted that “[t]he trial court cannot be faulted for failing to consider information that a party never provided.” 

Each party has the responsibility of providing their own financial information when counsel fees are sought. 

Children do lie and make up stories

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Reading my twitter stream today, @njfamilymag sent the following tweet with a catchy title: “Daddy puts on your bra sometimes," says a 4-year-old. Know the types of lies/untruths kids tell at each stage, and why. 

The article by Juliette Gilbert in New Jersey Family Magazine describes how toddlers tell fibs, preschoolers tell tall tales, schoolkids tell white lies and tweens stretch the truth. 

It highlights the care that needs to be taken in family law practice when children are interviewed e.g. in a custody or removal case. 

The Art of Persuasion

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Preparing persuasive motion papers is an art and not something that any lawyer learns at law school. 

However, in thinking about persuasion, three thoughts are worth bearing in mind irrespective of whether you are writing the motion yourself, pro-se or having a lawyer prepare motion papers for you.  When you look at the finished product ask three questions?

1.  Does it tell a story ? 
2.  Is it compelling ?
3.  Is the relief sought fair and reasonable ?

If you can answer "yes" to the above questions then you may have a persuasive motion. 

A motion has to tell the story of what has happened to bring it to life. This has to be done in a way that avoids excess emotion, but comes across as the "voice" of the client, not the attorney.  A client should be able to read a certification a lawyer has drafted and say "that is exactly how I feel".

All stories have a beginning, middle and end.  As an example: we divorced, I lost my job and circumstances have changed, so now I need to lower my child support. The outline story needs to be expanded to describe fully what has happened. Why did the person loose their job ? What have they done to find a new job ? What is their current financial situation ? Is it temporary or permanent ?  In telling the story, you need to anticipate what information the court will want to know in order to fully understand and decide the case.

A compelling motion is one that leaves the reader at the end thinking the issue should be decided the way you want it to be.  The way to do this is to present issues in a logical format and provide supporting documentation as exhibits.  As an example: our settlement agreement states that I should receive X,  the other party did Y, now I need Z in order to compensate me.  If the facts are in your favor, make it easy for the court to grant the relief you want.

Judges have to read two different versions of the same story, so if one party is fair and reasonable in the position taken and the other not, there is more chance that the motion papers from the fair and reasonable party will be persuasive.  As an example: I normally see my kids every other weekend, but I missed my weekend of parenting time due to unavoidable business travel, and now my ex refuses me make up time, so I would like the court to order this.  Fair and reasonable position ?

Writing persuasive motions is an art, but if you send papers to the court that tell a story, are compelling and seek a fair and reasonable outcome, you have a better chance the court will decide in your favor.

Understanding Child Custody & Parenting Time issues during Divorce

Going through a divorce with children it is important to understand legal terminology about custody and parenting time. A question frequently asked is who obtains custody of the children in a divorce and how is this decided ? Custody is the granting of rights and responsibilities for the care and support of a child. It involves two distinct concepts: decision making authority and caregiving responsibility.

Unless there is abuse, absence or a good reason, it is common for courts to allow both parents to share joint legal custody i.e. equal decision making responsibility on major issues concerning the health, welfare and education of a child. This requires both parents to consult and agree on major decisions about their children, in the same way they would if not divorced. Each parent also has responsibility for making routine decisions while a child is in their care e.g. time of going to bed, homework, food, etc.

However, most people when they talk about custody, mean physical custody - the caregiving responsibility. Unless the parties agree to share physical custody by means of a shared parenting plan, where a child lives 50% of the time with each parent, typically one parent will have physical custody, while the other parent will have parenting time at weekends and evenings. The parent with whom the child spends most of the time is designated the "parent of primary residence", with the other designated the "parent of alternate residence." Often the term "custodial" parent is used to refer to the parent who has physical custody and "non-custodial" to the parent who has parenting time.

The importance of who has physical custody often comes into place when a parent wants to move out of State with the children. If the parents have joint physical custody then such a move would trigger a change in custody evaluation as to whether it was in the best interests of the child to transfer custody to just one parent. However, if one party has physical custody then it would be considered a removal application under the standard set forth in Baures v. Lewis. So, it is important to understand the distinction between physical and legal custody in any divorce agreement.

During the divorce process, even if parties are still living in the same home, it is worth putting in place a parenting time agreement so that each parent has a set time with the children. It also allows the children to become used to what will happen post-divorce.

If you can agree on custody and parenting time during the divorce process, then a written agreement will be drawn up by the attorneys, thereby making it enforceable by the court. However, if custody is disputed and both parents want physical custody i.e. for the children to primarily live with them, the court will seek to determine what is in the best interests of the children. You can expect to be interviewed by a mental health professional who may also visit you at home and watch you with the children. They will typically also interview the children. If the parties cannot agree, the end result will be a custody trial at which the testimony of the parents and the mental health professionals will be presented to the Judge. Custody trials are expensive, but fortunately, the majority of cases do not require them.

Going through a divorce it is important to understand custody and parenting time issues. Remember that children benefit from a loving relationship with both parents. Even though you are going to be divorced, you will need to maintain a relationship with the other parent over parenting of your children for possibly many years to come.

A modified version of this post was previously published on First Wives World.

Moving to another state with children – is it a removal or change in custody ?

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Post-divorce, many parents with children choose to move to another State to be closer to their family & support network, to remarry or for financial reasons such as a lower cost of living or better quality of life.

If the other parent does not give their consent, then a motion will have to be made for the court’s permission for the move in order to comply with New Jersey Statute, N.J.S.A. 9:2-2. An example of this is described in the September 22, 2008 unpublished appellate decision in Fry v. Fry.

In Fry, the mother sought to relocate from New Jersey to Arizona with the parties’ two daughters aged 10 and 7, in order to have a lower cost of living and to do a nursing degree in a shorter time that it would take in New Jersey. The parents shared joint legal custody with the mother designated the parent of primary residence. The father had parenting time with his daughters one weekday a week and every weekend from Friday to Saturday. Additionally he spoke with them every day, attended teacher conferences, went to swim meets and was a coach for their softball team. The father opposed the move and made a cross motion for custody.

A key question the court has to decide when considering a contested move to another State is the legal standard that needs to be applied? When both parents share physical and legal custody i.e. there is shared parenting, then the application to move to another State is treated as a change in custody. Where this is the case, "the party seeking the change in the joint custodial relationship must demonstrate that the best interest of the child would be better served by residential custody being primarily vested with the relocating parent." O'Connor v. O'Connor, 349 N.J. Super. 381, 385 (App. Div. 2002).

However, if one parent is the primary custodial parent then the lower removal standard set forth in Baures v. Lewis, 167 N.J. 91 (2001) applies. This requires a “good faith reason for the move and that the child will not suffer from it."Id. at 118. The New Jersey Supreme Court decision in Baures sets forth a series of twelve factors that have to be considered by the court in granting permission to relocate out of state.

So, in any contested move to another State it is important to decide whether the parents share joint legal and physical custody to determine if a change in custody is involved, or whether it is an application for removal under the Baures standard. "In determining whether the parties truly share joint physical custody, although the division of the child's time with each parent is a critical factor, the time each parent spends with the child must be analyzed in the context of each parent's responsibility for the custodial functions and duties normally reposed in a primary caretaker." O'Connor v. O'Connor, supra, 349 N.J. Super. at 385.

The appellate division in the Fry opinion provides some guidance on when joint physical custody been found so that the heightened O’Connor change in custody standard comes into play:

“The cases where joint physical custody has been found, involve situations where the children spend substantial time with both parents who also share parenting responsibilities in a more equal way. See O'Connor v. O'Connor, supra, 349 N.J. Super. 381 (finding joint custody where parents shared custodial responsibilities and duties and during a three year period, the father had the child for 134 weekend overnights and 298 weekday overnights, while the mother had the child 105 weekend overnights and 533 weekday overnights); Voit v. Voit, 317 N.J. Super. 103 (Ch. Div. 1998) (finding joint custody where the father had the child from Thursday evening at 6:00 p.m. to Monday morning at 9:00 a.m. and the mother had the child the balance of the time, and where the parents shared equally in the rights and responsibilities of parenting.)”

Going back to Fry, the trial court determined that the Baures standard should apply and that this was a removal case not a change in custody. Although the father had joint legal custody, he did not have joint physical custody of the children. The appellate division upheld the move to Arizona.

How to obtain more parenting time ?

So you want more parenting time with your children, how do you go about this in New Jersey ?

1. Follow any agreed dispute resolution process
Frequently, at the time of divorce the parties will write into their settlement or custody agreement how they will resolve parenting time issues in the futures. If there’s an agreement to go to mediation, (it may even specify an agreed mediator if you worked with one at the time of divorce) then that’s the mechanism you should follow. Parties have to follow their own agreement, so first read your custody and settlement agreement carefully to see if any dispute resolution mechanism was agreed.

2. Try and obtain a voluntary agreement
If there is no agreed dispute resolution process, then see if you can reach agreement with your ex-spouse on additional parenting time. If you both can agree, then have a lawyer write up your new agreement as a Consent Order. In this document, both parties sign their consent to the parenting time changes. The Consent Order is then sent to a Judge for his/her signature and filing by the Court. Once the Judge has signed it, then it is legally binding and can be enforced by the Courts. It is a relatively inexpensive way to obtain a legal order without the need to file a motion or make a court appearance.

With any parenting time change, there may also be the need to recalculate child support as the New Jersey child support guidelines take into account the number of overnights with each parent. Some parents are reluctant to consent to additional parenting time because they don’t want to give up child support $. However, seeking additional parenting time just to reduce your child support is the wrong reason for doing it. Your ex-spouse will probably know if it is really about money or because you genuinely want more time with your children, and they want to spend more time with you.

3. File a motion with the Court
Assuming your ex-spouse does not agree to additional parenting time, then you will need to file a motion with the Court. Parenting time is always subject to modification based upon a showing of a substantial change in circumstances, with the burden of proof resting on the party making the motion. The primary consideration of the Court is the best interests of the child. Mastropole v Mastropole, 181 N.J. Super. 130, 137 (App. Div. 1981).

Before the Judge will decide the motion, if the parenting time issues are substantial and genuine, then both parties will be referred to mediation as required by New Jersey court rule 1:40-5. There are free programs run by the New Jersey Courts with experienced mediators.

If mediation fails, then the Judge will decide the motion. In awarding additional parenting time to one parent, the standard a New Jersey court will apply is the best interests of the child. See Hallberg v. Hallberg, 113 N.J. Super. 205, 209 (App. Div. 1971); Comas v. Comas, 257 N.J. Super. 585, 590 (Ch. Div. 1992). Judge's have a lot of discretion when it comes to deciding parenting time issues, so what is in the "best interests of the child" will depend on the unique facts of your case and situation.

You can have more parenting time if you pay more child support

Image via WikipediaAs the LA Times reported, that’s what happened this summer with Britney Spears. She agreed to pay an extra $5,000 a month in child support (up from $15,000 to $20,000) in return for an extra overnight with her two young children.

On its face, this is counterintuitive since the more time you see your children, the less child support you should pay since you are paying more of their costs.

However, the post-divorce reality for many parents who have children is that the relationship with their ex-spouse will involve money. It’s a sad but true fact that where there is an economic imbalance between the parties, money often greases the wheel of parenting time and access to children.

The fact that Britney can ostensibly afford the money doesn't make it right that a parent should have to pay more child support to obtain additional parenting time.