New Jersey Lawyer & Attorney : Stark & Stark Law Firm : New Jersey Law Blog

In the recently decided case of Koeppel v. Pierson, the Appellate Division of the New Jersey Superior Court affirmed a trial court’s ruling that a child’s paternal grandmother stood in legal parity with the child’s father with respect to parenting rights. This ruling underscores the competing legal rights of a natural parent and other family members, in this case his mother, who had been integral to a  child’s upbringing to the extent of acquiring “psychological parent” status and equal legal footing with the natural father.  The case is a guide for grandparents who are seeking time with their grandchildren, as well as parents who have reason to resist such efforts.

New Jersey law has developed a legal standard strongly favoring the rights of natural parents over grandparents.  Under Moriarty v. Brandt, decided in 2003, a grandparent must prove “substantial harm to the child” from not visiting with him/her in order to demonstrate a right to grandparent visitation, a high legal burden to overcome.  An exception arises, however, when a grandparent is found to be the “psychological parent” of the child, as defined in Tortorice v. Vanartsdalen, decided in 2012, by proving four elements: (1) that the parent consented to and fostered the grandparent’s parent-like relationship with the child; (2) that the grandparent and the child lived together in the same household; (3) that the grandparent assumed the obligations of parenthood without expectation of compensation of financial compensation by the natural parent and (4) that the grandparent has been in a “parental role” for sufficient time to establish a “bonded, dependant relationship” with the child.

Obviously, such cases are fact-sensitive and require careful planning and skilled representation in order to prevail.  Nonetheless, when circumstances permit a grandparent to do so, the result is worth the effort since it thereafter places the grandparent on equal legal footing with the parent concerning the best interests of the child going forward.  Anyone contemplating this course of action is strongly advised to consult with experienced legal counsel before proceeding. 

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As recently as last month, marriage equality continued to spread globally. Within weeks of each other in April, Uruguay, New Zealand, and France all legalized same sex marriage. This brings the count to 14 countries in the world that allow gays and lesbians to marry. However, marriage equality is steadily moving closer to our region.

Here in the U.S., the number of states allowing same sex marriage is a few short of the global count, but it is growing. One of the most recent states to legalize same sex marriage equality was Rhode Island on May 2. Even more significant for our region, though, was Delaware’s decision to legalize same sex marriage on May 6. The First State, and the first state in the tri-state area to stand up for marriage equality, Delaware’s marriage bill passed the State Senate by a vote of 12 to 9. A hub of business and a popular vacation spot for folks from New Jersey and Pennsylvania, Delaware may provide a bigger draw for gay and lesbian couples in the area with this recent development. However, opponents on the national level are not discouraged, with 30 states having adopted constitutional amendments limiting marriage to a man and woman. But as Delaware becomes the 11^th state to officially embrace marriage equality, public opinion is shifting with many polls showing majority support for marriage equality, according to the New York Times.

A significant milestone in our immediate area’s journey towards full equality, though, was the bill passed by Philadelphia City Council on April 25. Bill 130224, introduced by Councilmember James F. Kenney, was passed with a 14-3 vote and will in part give a tax credit to companies based in Philadelphia to offer health care benefits to life partners of their employees and their children. Capped at $2 million, the credit is meant to encourage companies to recognize the legitimacy of their gay and lesbian employees’ partners and families.

However, much of the success of these measures will hinge on the Supreme Court’s June decisions on the marriage equality cases presented this past March. Without federal support, these measures may become strictly symbolic.

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In the recent case of Reese v. Weis, the Appellate Court determined that permanent alimony should be terminated where the payee spouse had cohabitated for a period of ten years and received from her cohabitant/paramour gifts, lavish vacations, and payment toward her living expenses.

In all cases where alimony is awarded, the payor may apply to the court for modification or termination of alimony in the event there is a substantial change in circumstances.  The payee's cohabitation is considered a change in circumstance allowing the payor to seek modification or termination; however, cohabitation alone does not end the query.  Further, review of the economic circumstances of the new relationship and its impact on alimony is necessary.  For example, if a court determines that the cohabitant of the payee is providing financial support to the payee, or if the cohabitant is being supported by the payee, then alimony may be modified or terminated. 

Cohabitation means more than sharing a common residence.  It involves conduct whereby "the couple has undertaken duties and privileges that are commonly associated with marriage."  Having joint bank accounts, sharing living expenses and household chores, and recognition of the relationship by the couple's friends, family and community are some factors that indicate cohabitation as an intimate and enduring relationship.

In determining whether alimony should be modified or terminated in the event of cohabitation, the trial judge must determine, through evidence provided, whether the financial support provided by the cohabitant has altered the need for support from the payor to the payee. If the cohabitant is paying for or contributing to the payee's necessary expenses (i.e., housing, food, clothing, transportation, insurance), then the payee is receiving a direct economic benefit which will affect alimony.  In the Reese case, it was also determined that indirect economic benefits should be considered.  Examples of this are moving into a cohabitant's home without incurring housing obligations, or the receipt of gifts, vacations or other emoluments which enhance the payee's lifestyle.  More subtle economic benefits may occur as a result of intertwined finances where there is a subsidization of expenses by the cohabitant to the payee.

The court must also consider the characteristics of the relationship between the payee spouse and the cohabitant.  Some considerations are the length of the cohabitation, the duration of receipt of the economic benefits, the length of the previous marriage, and whether the cohabitating relationship exhibits the indicia of  marriage.

If a payee chooses to cohabitate and wants to continue receiving alimony, the payee must be able to prove his/her direct expenses as well as his/her payment of those expenses without any aid from a cohabitant.  Separate bank accounts and credit cards should be maintained without any blurring of responsibility for the expenses incurred.  Of utmost importance are the proofs to substantiate separate income and separate obligations since the burden of proof is on the payee to prove he/she did not benefit economically from sharing a household or provide a financial benefit to the cohabitant.    

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Although it is conventional wisdom that once a Domestic Violence Final Restraining Order is entered it is permanent, New Jersey law provides a means for seeking a dismissal of the Order in certain circumstances.  This was recently made clear by an Appellate Division decision in the case of J.M.F. v. G.M.F., decided on May 6, 2013.

In J.M.F v. G.M.F. a Final Restraining Order (FRO) was entered in August 2002 stemming from acts of domestic violence which occurred over a prior decade (the parties were subsequently divorced in December 2003).  Significantly, the Court found that since 2002 there have been no further incidents or any violations of the FRO. The defendant completed the court-ordered “Alternatives to Domestic Violence” program, attended private therapy and met with clergy at his church.  On various occasions the plaintiff had even hand-delivered letters to the defendant’s home, to include as recently as July 2012.

As a result, the defendant filed a motion to dissolve the FRO, which was opposed by the Plaintiff.  The trial court denied the defendant’s application on the basis of the Plaintiff’s responsive papers stating that she was “still afraid of the defendant”.  On appeal, the defendant argued that he was entitled to a hearing and the Appellate Division agreed. The Court confirmed that the legal basis to dismiss an FRO is “for good cause shown,” and directed the trial court to conduct a hearing at which both parties would testify.  The collateral importance of this case is that it reaffirms the need for trial courts to hold hearings instead of relying upon written submissions when material facts are in dispute.

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A paternity issue arose in a recent case of divorced parties wherein the ex-husband learned that he was not the biological father of his presumed child.  In his divorce action, he had agreed to pay child support for two children believing the first child was his.  When he learned otherwise, he filed a motion with the court to disestablish paternity and to obtain a credit for child support paid for that child.  The lower court denied his application stating that the ex-husband signed the child's birth certificate, he did not previously contest paternity and he had treated the child as his own over the course of the child's life.  He filed a similar motion a year later.  The lower court again denied his motion.

The ex-husband filed an appeal, and the Appellate Division remanded the case to the trial court for a hearing, stating that the court should weigh the following factors:

1. The length of time between the proceeding to adjudicate parentage and the time that the presumed or acknowledged father was placed on notice that he might not be the genetic father;
2. The length of time during which the presumed or acknowledged father has assumed the role of father of the child;
3. The facts surrounding the presumed or acknowledged father's discovery of his possible non-paternity;
4. The nature of the relationship between the child and the presumed or acknowledged father;
5. The nature of the relationship between the child and any alleged father;
6. The age of the child;
7. The degree of physical, mental, and emotional harm that may result to the child if presumed or acknowledged paternity is successfully disproved;
8. The extent to which the passage of time reduces the chances of establishing the paternity of another man and child-support obligation in favor of the child;
9. The extent, if any, to which uncertainty of parentage exists in the child's mind;
10. The child's interest in knowing family and genetic background, including medical and emotional history; and
11. Other factors that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed or acknowledged father or the chance of other harm to the child.

In addition to the above, the Court must always consider the best interests of the child.                     

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Child Support as determined by the New Jersey Child Support Guidelines are based on the estimated costs that parents living in intact families spend on their children.  Per economic studies, 65% of household spending is for items that are shared by all family members (i.e. laundry detergent), clothing and items generally used by only a single family number constitute another 25% of household expenses.

Because such a large percentage of expenses cannot be observed to be used by a single household member, much less a single child, economists apply marginal cost estimation to attempt to determine the added costs of a child to a family.  In application, MCE compares expenditures of families of similar socio-economic status with varying numbers of children.  

Before MCE can be applied, a standard of well-being must be defined.  There are several standards of well being, however, the New Jersey Child Support Guidelines employ the Rothbert Standard, which measures how parents adjust their spending on adult items/goods as a direct result of the inclusion of a child.  Otherwise stated, the Rothbert Standard measures well-being by comparing excess income available to purchase adult items/goods (clothing, entertainment, etc.) after all necessary family expenditures.

The data used in the above analysis is obtained from the Consumer Expenditure Survey (CEX),  a national cross-sectional survey that collects information about the consumption of hundreds of expenses.

Child Support Is Not Determined Pro Rata Per Child.

Of the many economic principles upon which the New Jersey Child Support Guidelines are based, the following best provides explanation as to the variation in support as the number of children in a family increases or decreases.

1. A child’s marginal cost is the level of spending above what parents would spend if they did not have a child.
2. The larger the household, the less is spent per capita as a result of the increasing sharing of household goods.
3. As the number of children in a family increases, the amount spent on children increases, but not proportionally.

What Do the New Jersey Child Support Guidelines Cover?

A.      Expenses Included in the New Jersey Child Support Guidelines:

The base child support award that is subsequently divided  between the child’s share of expenses for housing, food, clothing, transportation, entertainment and $250.00 per child per year in health care costs.   The lack of a specific expenses by a family is not a basis for deviation from the Child Support Guidelines.

B.      However, the presence of certain types of specific expenses for a child may be added to the base child support award.  These types of expenses are not included in a base award either because they represent large and/or variable expenses for a child, or are not incurred by typical intact families.

The following are expenses that should be added to the base child support award if incurred for a child:

1. Work related child care (including before and after care and summer day camp).
2. Health Insurance Premiums incurred for the child determined as the marginal increase in price to add a child to a parent’s plan.
3. Predictable and recurring un-reimbursed/uninsured health care expenses for a child in excess of $250.00 per child per year.
4. Other Court approved expenses that are predictable and recurring for a child.  

Megan Smith is a member of Stark & Stark's Divorce Group in the firm's Lawrenceville, New Jersey office. For questions, or additional information, please contact Ms. Smith.

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With challenges to Proposition 8 and the Defense of Marriage Act that were brought in front of the Supreme Court two weeks ago, the push for equality has gained some more momentum. Still, same sex couples in New Jersey and Pennsylvania face an uphill battle. However, the challenges brought to Prop 8 and DOMA have increased the potential for policy change in the region.

New Jersey is one of seven states that allow civil unions. Same sex couples in New Jersey enjoy most of the benefits enjoyed by heterosexual married couples short of legal marriage. Through the arguments challenging the constitutionality of Prop 8, the U.S. Justice Department argued that states offering civil unions to same sex couples cannot deny them the right to legally marry. Governor Christie has denied the constitutionality of same sex marriage in New Jersey, suggesting that it be put on the ballot. But if the Supreme Court declares marriage a constitutional right, the issue would be prohibited from ever coming up for a vote.

In Pennsylvania, same sex couples enjoy no legal protections. Last week however, U.S. Senator Bob Casey (D-PA) announced his support for marriage equality and the repeal of DOMA. Casey made a statement to the Philadelphia Gay News in response to what he has heard from LGBT individuals and families in Pennsylvania. The senator said, “If two people of the same sex fall in love and want to marry, why would our government stand in their way? At a time when many Americans lament a lack of commitment in our society between married men and women, why would we want less commitment and fewer strong marriages? If two people of the same sex want to raise children, why would our government prevent them from doing so, especially when so many children have only one parent, or none at all?”

Along with Sen. Rob Portman (R-OH), Sen. Tom Carper (D-DE), Sen. Mark Kirk (R-Il), former Secretary of State Hillary Clinton, and President Barack Obama, Sen. Casey joins a group of elite politicians who support marriage equality. However, without a favorable Supreme Court ruling marriage equality may lose the ground it’s gained. 

Megan Smith is a member of Stark & Stark's Divorce Group in the firm's Lawrenceville, New Jersey office. For questions, or additional information, please contact Ms. Smith.

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While every case in family court presents different facts, there is a statutory presumption that the Child Support Guidelines should be utilized.   While this presumption is rebuttable, the Court Rules require that the Child Support Guidelines be used in every child support case, whether establishing or modifying an award of child support.   (i.e., unless a party can prove that unique facts and circumstances in his/her case make utilization of the Child Support Guidelines inappropriate or inequitable, the Court must use the Child Support Guidelines to calculate the Child Support award.)

Unique facts/circumstances which warranty avoidance of the Child Support Guidelines (to be discussed infra).

Megan Smith is a member of Stark & Stark's Divorce Group in the firm's Lawrenceville, New Jersey office. For questions, or additional information, please contact Ms. Smith.

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“Why can’t I pay my child support directly to my child” is a common question.  While this may be a reasonable consideration for an unemancipated child in college or living independently, this is not reasonable for a child living at home with a parent.   Child support is intended to cover the following needs of a child:    Housing, food, clothing, transportation, $250/yr in unreimbursed/uninsured medical expenses, and entertainment.  By and large, these expenses are paid for by the parent with whom the child resides with the majority of the time (a/k/a Parent of Primary Residence).

Thus, it is necessary for the Parent of Alternate Residence to provide the Parent of Primary Residence with the money so  that he/she can pay those expenses for the child(ren).

Megan Smith is a member of Stark & Stark's Divorce Group in the firm's Lawrenceville, New Jersey office. For questions, or additional information, please contact Ms. Smith.

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