Courts Cracking Down on Bad Faith Negotiation of Non-Relocation Clause

By: Robert B. Kornitzer, Esq. and Zachary Levy, Esq.
rkornitzer@pashmanstein.com and zlevy@pashmanstein.com

Physical custody of the children is often one of the most contentious issues that must be resolved during a divorce. The desire to be named the primary custodial parent is sometimes so great, unscrupulous litigants may negotiate the Marital Settlement Agreement (“MSA”) in bad faith and make false representations to the other parent in order to convince them to concede primary custody of the children. Along these same lines, a parent may only be willing to concede primary custody of the children under the condition that the other parent not relocate the children to a distant geographical location that makes regular visitation impracticable. Accordingly, a non-relocation clause will be included in the MSA.

Even if a non-relocation clause is included in the MSA, our courts realize that “life happens,” and the primary custodial parent may very well need to relocate with the children despite the agreement (i.e. they need to move to a different state for a new job). When an application to relocate by the primary custodian is made to the court, the court will generally permit the move to occur upon a showing by the primary custodial parent that: (1) there is a good faith reason for the move, and (2) the move will not be inimical to the child’s interest. Baures v. Lewis, 167 N.J. 116-17 (2001). However, if there is no good faith reason for the move, or if the non-relocation clause was not negotiated in good faith, the application must survive greater scrutiny, and the court must determine whether permitting the move would actually be in the child’s best interest (as opposed to simply not being inimical to the child’s interest). The former is a much easier showing for the primary custodial parent to make, and therefore there is a tremendous incentive to do whatever is necessary to be awarded primary custody of the children, and then just ask the court to permit the move later on, even if the parent secretly knew the relocation would be necessary and likely to occur all along during the negotiation of the MSA. This is exactly what happened in the recent unpublished case of Bisbing v. Bisbing.

In Bisbing, the Father agreed to let the Mother have primary custody of the children under the conditions that he have a great deal of regular visitation time with the children, and also that a non-relocation clause be included in the MSA – the Mother agreed to these conditions, and was granted primary custody of the children pursuant to the parties’ agreement. Just nine months after the Final Judgment of Divorce was issued, the Mother filed, and the court granted, a motion seeking to relocate the children to a far-away state so she could live with a man who would eventually become her new husband. Notwithstanding some very suspicious circumstances which would cause many to think the Mother planned on relocating all along, the trial court did not hold a plenary hearing[1] to determine whether the Mother negotiated the MSA in bad faith, and simply opted to apply the lenient analysis set forth in Baures.

On appeal, the Appellate Division reversed and remanded the matter for a plenary hearing, so a determination could be made as to whether the Mother had negotiated the MSA in bad faith, and set forth the analysis courts should use when an accusation of bad faith MSA negotiation is made. The Bisbing Court explained that the lower court must first determine whether the primary custodial parent negotiated the non-relocation clause of the MSA in bad faith. If so, a “best interests of the child” analysis must be conducted. Second, if bad faith is not demonstrated, the trial court must then consider whether the parent proved a substantial unanticipated change in circumstances warranting avoidance of the agreed-upon non-relocation provision and simultaneously necessitating a Baures analysis. If the MSA was negotiated in good faith, yet the parent fails to satisfy her burden of proving a substantial unanticipated change in circumstances, the court must apply the same “best interests” analysis as required in the first step. Only if the noncustodial parent is unable to demonstrate that the custodial parent negotiated the MSA in bad faith, and the custodial parent is able to prove a substantial unanticipated change in circumstances occurred, should the custodial parent be accorded the benefit of the Baures analysis.

The Appellate Division’s holding is significant, as it provides valuable instruction on how trial courts should address colorable accusations of bad faith negotiations of MSAs, particularly non-relocation clauses. It is also demonstrative that this issue is now something our courts are on the lookout for, and will not tolerate. While it may be tempting to do so, divorce litigants should not attempt to game the system and trick their ex-spouse into giving up primary custody of their children based on bogus promises not to move out of the state.

[1] A plenary hearing is necessary when one party makes a motion and the court needs additional facts and information beyond what the parties have provided in their pleadings to make an informed decision.

Holiday Parenting Time: Tips to Survive the Holidays During a Divorce

By Valerie Jules McCarthy, Esq.
vmccarthy@pashmanstein.com

The holiday season brings a mixed bag of emotions.  Some people find it to be a time when they can slow down the normally hectic pace of everyday life, take a vacation, spend time with family, make great memories and enjoy traditions. Others find the holidays to be a time when stress is at its peak, as the holiday season often brings unwelcome guests, an exhausting list of demands; including shopping, parties, baking, cleaning and entertaining, to name just a few. No matter which camp you may belong to, going through a divorce will probably put a damper on the holiday season.

In New Jersey, when couples with children decide to divorce, one of the first issues which must be addressed is custody of their children, at least on a temporary basis until the divorce is finalized. After the parents agree or the Court makes a determination on custody of the child(ren), parenting time and visitation will also need to be determined. In some cases, parents reach a suitable agreement without having to battle it out in court. However, in other instances, a Judge must determine parenting time.

Among the many obstacles parents must overcome when going through a divorce, one of the more difficult challenges is often figuring out how to share time with their children during the holidays. This is particularly difficult if parents have spent years creating holiday traditions and routines, which have to be abandoned or modified when parents no longer live in the same household.   This challenge often leads people to overlook or ignore the issue until the last minute.  However, doing so can lead to even more stress and costly litigation.

As attorneys who practice family law know, the holiday season can be one of the busiest times in the profession. This surge in litigation is often due to last-minute disputes regarding holiday parenting time with children.  In 2013, I had to participate in a telephonic hearing on Christmas Eve to address Christmas Day parenting time for one of my clients.  This type of nail biting suspense is great at the movies, but created an extremely difficult and unpleasant experience for my client, who had to wait until Christmas Eve to find out if she would be able to spend time with her children on Christmas Day.

Unfortunately, these situations occur every year during the holidays, and make it very difficult for parents to plan activities and enjoy the holiday season with their children.   However, proper planning and communication can alleviate these issues and allow people to enjoy the holidays (as much as possible, given the circumstances). Here are my four tips on surviving, and even possibly enjoying, the holidays with your children during the divorce process:

1- Think Ahead-Discuss & Create A Holiday Time-Sharing Schedule With Your Spouse

People often wait until the last minute to make holiday plans.  We are all guilty of procrastination.  But, if you are going through a divorce, you no longer have this luxury. When parents reside in two different households, they must share time with the children and cannot simply make unilateral plans, as they may have done when the family was intact.

Many divorcing couples make the mistake of addressing their general time sharing arrangement when they commence the divorce process, but ignore the holidays, especially when holidays are relatively remote. I recommend that parents address holiday parenting time early in the divorce process, in conjunction with addressing their general parenting plan.  Failing to do so may result in one party enjoying the bulk of the holidays if there is only one general schedule in place.  This scenario leads to last-minute litigation.

If, after discussing holiday parenting time, the parents are unable to agree on a schedule, at least they will still have plenty of time to address the issue.  Parties can seek the assistance of counsel to negotiate a settlement or the assistance of a mediator to resolve these disputes.  If all else fails, they can file an application with the Court and request that a Judge make a final decision.

2- The Child(ren)’s Needs Come First

It is understandable that parents want to spend every holiday with their children; however, the holidays should not become a battleground.  When deciding how to share holiday parenting time, the children’s needs should be the first consideration.  If a parent has extended family coming to visit or a special event has been planned for the holiday, these scenarios should be taken into consideration when determining the holiday parenting time schedule. Placing the children’s needs above the parents’ desires may simplify the task of preparing a holiday time-sharing schedule.

3- Be Flexible and Don’t Focus on the Day

Which parent celebrates Christmas Day and Thanksgiving with the children seems to cause a lot of problems.  It is often recommended by family law practitioners that parties alternate holidays each year; for example, one parent will have Christmas in odd years and the other in even years.  However, the issue of who celebrates a particular holiday with the children during the first year is always a problem.

It may be helpful to view holidays as a season, rather than a particular day.  If there is a dispute over who enjoys Christmas with the children, think about celebrating Christmas (or any holiday) on a different day with your children. Family and traditions make Christmas special, not December 25th.  Once you are divorced, it is likely you will not spend every holiday with your child(ren) every year anyway; therefore, it is beneficial for you to plan ahead and develop alternate ways to celebrate the traditional holidays on different days.  Thanksgiving, Hanukkah and Christmas holidays often coincide with school recess, so there is ample opportunity to celebrate each holiday on a different day with your children.

4- Memorialize a Holiday Time-Sharing Schedule

Once a holiday time-sharing schedule has been agreed upon, it is important to memorialize it in a written agreement or consent order.  If the divorce is mutual and unhostile, it may seem tempting to ignore this tip, but I highly recommend that you do not do so.  Placing the schedule in writing will avoid misunderstandings and will prevent one parent from reneging on the previously agreed-upon schedule out of spite or animus later in the litigation, not to mention saving both parties counsel fees and costs incurred to re-address parenting time in the absence of a written agreement.

Holidays can be a stressful time for “intact” families.  For families going through a divorce or custody dispute, holiday stress can become intolerable.  Consulting a family law attorney to discuss the specifics of a situation can avoid adding additional stress to the holidays. We hope to hear from you so that we may help alleviate your anxiety during the divorce process and assist you in ensuring that you and your children enjoy the holidays.

If you have any further questions on this topic, please email Valerie at vmccarthy@pashmanstein.com.

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Grandparent Custody and Visitation Rights

Grandparent Custody Rights
Grandparent Custody Rights

We often field calls from grandparents who have been denied access to their grandchildren, and who feel that they are unfairly being left out of their grandchildren’s lives.  This sadly arises commonly when the grandparent’s own child, the mother or father of the child has died, and for various reasons the remaining parent has chosen not to permit continued contact with the grandchildren. In some situations, both parents are alive and well and have had a falling out with one or both sets of grandparents where once there was a relationship. This can no doubt be difficult for the grandparents, especially those also grieving the loss of their own child. Where the mother and father are divorced and the grandparent’s child dies, the legal bond creating the “family” as such is not even present, and there is oftentimes acrimony between grandparents and their former in-law arising out of the divorce.

What about the rights of grandparents to see their grandchildren? What about the right of fit parents to raise their children as they deem appropriate?  The right of a grandparent to petition for visitation is codified under N.J.S.A. 9:2-7.1. The statute sets forth eight factors for courts to consider in assessing applications for grandparents to have access to the grandchildren. The procedure by which courts are to apply the above statute was detailed in the seminal case of Moriarty v. Bradt, 177 N.J. 84 (2003). In that case, our Supreme Court noted that, though parental autonomy is a fundamental right deeply embedded in the American culture, in certain instances, pursuant to the state’s parens patriae power, that right can, and will, be encroached upon. Id. at 101, 114-115. The polestar, however, is harm to the child or children should visitation be denied. It is not, as many often confuse it, alleged harm to the grandparent at having been denied access to the grandchildren. This is a critical distinction fundamental to any application for grandparent visitation.

In Moriarty, the court took special note of the trial court’s findings relating to the relationship of the grandparents with the children. The court highlighted specifically the fact that the relationship between the grandparents and the children was extensive and significant. Moreover, the maintenance of this relationship was found to be critically important given the mother’s recent death. Contact with the grandparents was found to provide a link to the children’s mother and that branch of their family. Id. at 119. Significant as well was the attention by the court to expert testimony from a psychologist who found that the visitation plan proffered would effectively allow alienation of the mother’s family by the father. The therapist went on to point out that, given the father’s overt hostility toward the grandparents, successful alienation of the children would result in psychological harm to them. Id. at 121-122.

Moriarty made clear the fact that any successful application for grandparent visitation rests on the ability to articulate specific harms to the children. Moreover, these harms need to be able to be proven through the evidence presented at the hearing. Subsequent cases have reinforced and further delineated just what kind of showing must be made, as the ability to articulate an identifiable harm to the child is paramount to justify interference with a parent’s fundamental due process rights.  See Rente v. Rente, 390 N.J. Super. 487 (App. Div. 2007); Mizrahi v. Canon, 375 N.J. Super. 221, 234 (App. Div. 2005) (noting that, “Conclusory, generic items … are not a sufficient basis to warrant such an intrusion into a parent’s decision making.”).

In practical terms, a grandparent who has been the caretaker of a child or who has stood in locus parenti at some point prior to being denied visitation with the child is in the best position to establish the kind of bond that, if removed, could cause harm to that child. Unfortunately, most grandparents do not fit this mold. And while there is no doubt that they love and care for their grandchildren, these less involved relationships are not generally of a quality satisfying the burden to trump a parent’s presumptive right to raise their children as they see fit, including to whom the children have access.

Dueling Grandparents?

When the biological parents are unfit to parent their child, it can place a tremendous burden and accompanying stress on the replacement custodians; often one of the sets of grandparents.  The burden may have just increased with a recently published case (meaning that new law has been created). 

Essentially, the stresses of having to step in for unfit parents isn’t limited to the “custodial” grandparents against the biological parents, but can often extend to the non-custodial grandparents; the grandparents who did not receive a Court order awarding them custody of the child.  Both sets of grandparents love their grandchild.  However, they may have different views on many custodial issues such as: who should the child be living with, who should share time with the child, how should the child be raised, etc. 

Generally, one of the sets of grandparents will be initially awarded temporary physical custody of the child.  If the custodial grandparents elect to shut the other grandparents out of the child’s life, what can that second set of grandparents do? 

Under the newly clarified law, the Court has made it clear that a grandparent with custody does not have the same level of autonomy as the actual parents of a child would have.  Grandparents with custody cannot force the other grandparents to satisfy with the Court a difficult burden of proof before visitation will be shared.  All that the non-custodial grandparents must show is that it is in the child’s best interests to have a relationship with BOTH grandparents.  This is not a difficult burden.

In my opinion, this clarification of custodial rights will have important ramifications moving forward, including possibly expanding the visitation rights of other close relatives such as aunts and uncles.

Relocation Made Easy(er)

In recent years, the pendulum has continued swinging in the direction of making it easier for the parent with physical custody of the children to relocate out-of-state with the children.  That trend has continued in 2011 with a key decision by the New Jersey Supreme Court (our highest court).

But to me, the interesting twist of that decision (Morgan v. Morgan) was that the Supreme Court sent the relocation and custodial issues back to the trial court to review in light of the four-year passage of time since the trial court’s initial decision to permit relocation.  This leaves open the possibility that based on significant changes in the parent’s and the children’s lives in the intervening four years, permission for the relocation may actually be reversed.  So for instance, if the parent who was left behind can prove that the move has effectively cause the children to be alienated, will the trial court in hindsight now retroactively refuse to grant permission to move with the children?

If there had not been a complete upheaval in the children’s lives as a result of the relocation, imagine what those children will face if four years later they are told they will be returning to New Jersey.

Adoptive Parents and Sibling Visitation Rights

In a recent unanimous New Jersey Supreme Court decision, In the Matter of D.C. and D.C., it was established that adoptive parents cannot ignore blood bonds between siblings and may be ordered to permit sibling visitation where it is necessary to avoid harm to the child. This case concerned twin girls who were placed in a foster home at three months. The twins’ older brother, then 13, was placed with an adult sister in Virginia, Nellie, who wanted to adopt him. Nellie wanted to adopt the twins as well, but in the interim won visitation rights.

In August 2007, Virginia’s child welfare agency recommended placing the twins with their sister, but revoked the recommendation in December 2007 largely due to her financial problems at the time and the poor academic progress of the 13-year-old brother. In the same month, the court terminated the natural mother’s parental rights to all three of the children. In January 2008, the N.J. Division of Youth and Family Services (DYFS) denied Nellie’s application to be a kinship guardian of the twins and terminated her visitation rights with them. Nellie sued in April 2008, seeking placement of the twins in her care, or in the alternative, the right to regularly visit them. DYFS took the position that it controls a child’s life after termination of parental rights and that control is not subject to judicial review.

In June 2008, Hudson County Superior Court ordered continued visitation between Nellie, her 13-year-old brother and the twins. However, the next month, the twins’ foster mother said she would not facilitate such visitation. In New Jersey, the standard for determining custody arrangements is the “best interests” of the child. Nellie then sought to enforce the June 2008 order, but the Court ruled that, in light of the termination of their natural mother’s parental rights, the best interests of the twins trumped the siblings’ rights to visitation. The Appellate Division agreed with the decision that Nellie be denied visitation. The New Jersey Supreme Court, however, focused on the question of sibling visitation rights before and after adoption, thereby clarifying the rights of children in placement from this point forward.
Before adoption, the Child Placement Bill of Rights Act gives children in out-of-home placements the right to visit with the child’s sibling on a regular basis and to otherwise maintain contact if the children are placed separately. This means that before adoption, the right to sibling visitation is presumed and DYFS has an obligation to facilitate it. If DYFS opposes visitation, it must prove that such contact is against the child’s best interests. After adoption, a different standard applies. Sibling visitation is then governed by the Grandparent and Sibling Visitation Statute under the same rules that apply to biological families. Accordingly, adoptive parents may be ordered to permit sibling visitation if the party seeking the visitation can prove that the child would be harmed if denied sibling contact.
The New Jersey Supreme Court has clarified the rights of children in placement to have contact with their siblings following the termination of parental rights. As a result, sibling visitation rights may be enforced even after adoption.

Separation of Husband and Wife Before a Complaint is Filed

Often one of the first questions a matrimonial attorney gets asked by clients contemplating a divorce is, “how do I obtain a legal separation?”  The answer is that in the State of New Jersey there is no such thing as a “legal separation”.  If one wishes to separate from their spouse, they simply move out.  Unlike many other states, New Jersey does not have a law on legal separation.  

In this State, one does not have to ask for the court’s permission or obtain a formal decree of any sort in order to be able to move out of the marital home and “officially” separate from his or her spouse.  Of course this freedom to separate is not a license to abandon all financial and domestic responsibilities

Continue reading “Separation of Husband and Wife Before a Complaint is Filed”