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Grandparent Visitation Rights in NJ

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Grandparent Visitation NJ Statute

On January 12, 2016 in Major v. Maguire, the NJ Supreme Court addressed a case regarding the Grandparent visitation rights in NJ. N.J.S.A. 9:2-7.1. The plaintiffs, represented by counsel, commenced an action under the statue alleging their involvement in their granddaughter’s life from birth and contended that their alienation from the child would cause her harm.

The defendant, represented by counsel argued that the plaintiffs had failed to establish a prima facie showing of harm to the child in the absence of visitation, as required by Moriarty v. Bradt, 177 N.J. 84 (2003), cert. denied, 540 U.S. 1177 (2004), and informally moved for dismissal of the complaint with prejudice.

The trial court stated that the complaint failed to make the necessary showing of harm to the child in the absence of grandparent visitation and found the complaint to be premature because there was no showing that the defendant had denied visitation with finality after efforts to resolve the matter. The court dismissed the complaint.

On appeal the Appellate Division reversed finding that the trial court should have denied defendant’s motion to dismiss and given plaintiffs the opportunity to satisfy their burden of proving harm, invoking the procedural guidelines set forth in R.K. v. D.L., 434 N.J. Super. 113 (App. Div. 2014), and concluded that the trial court’s approach was inconsistent with governing statutory and case law. The panel remanded to the trial court with directions to re-examine the complaint under R.K. This Court granted certification to the Supreme Court. 218 N.J. 530 (2015). Under N.J.S.A 2:12-4., Certification to the Supreme Court is granted “only if the appeal presents a question of general public importance which has not been but should be settled by the Supreme Court or is similar to a question presented on another appeal to the Supreme Court.”

This issue in this case, grandparent visitation rights in NJ, is relevant to many families and thus was granted certification. Grandparent Visitation NJ Statute, N.J.S.A. 9:2-7.1 , under which the action was commenced, was signed into law in 1972 and twice amended. Factors considered by the Court in visitation include:

a. A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.

b. In making a determination on an application filed pursuant to this section, the court shall consider the following factors:
(1) The relationship between the child and the applicant;
(2) The relationship between each of the child’s parents or the person with whom the child is residing and the applicant;
(3) The time which has elapsed since the child last had contact with the applicant;
(4) The effect that such visitation will have on the relationship between the child and the child’s parents or the person with whom the child is residing;
(5) If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;
(6) The good faith of the applicant in filing the application;
(7) Any history of physical, emotional or sexual abuse or neglect by the applicant; and
(8) Any other factor relevant to the best interests of the child.

c. With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child’s best interest if the applicant had, in the past, been a full-time caretaker for the child.

Each case involving grandparent visitation rights in NJ is unique and requires detailed analysis of the surrounding circumstances.

Recent Case Law on Unpaid Child Support in New Jersey

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Decided on January 13, 2016, both parties being represented by counsel, in Matison v. Lisnyansky, the court imposed the legal doctrine of fugitive disentitlement to dismiss defendant’s appeal while a bench warrant for unpaid child support. The legal doctrine of fugitive disentitlement is the balancing of justice, that is, a fugitive from justice may not seek relief from the judicial system whose authority he or she evades.

The parties in Matison v. Lisnyansky had two children born in 2004.  The plaintiff came to the United States in March 2006 and lived with the children and defendant in Franklin Lakes home purchased by defendant.  Defendant returned to Europe to conduct business, sold the Franklin Lakes home, but continued to provide significant support while plaintiff and their children resided in Tenafly.  In 2012, after defendant stopped supporting his children, plaintiff obtained a court order for child support.  The order stated: “The Warrant for defendant’s arrest shall remain outstanding until he satisfies his support arrears and complies with the other terms of this Order.”

After many adjournments and four day hearing on plaintiff’s claims for palimony and child custody, on May 1, 2013, the trial court entered a default judgment.  One-day before the one-year limit set forth in R. 4:50-2, defendant filed a motion to vacate the default judgment through counsel as he could not appear due to the still outstanding bench warrant, which was denied. Defendant then appealed this Order.

The Appellate Division dismissed based on the legal doctrine of fugitive disentitlement and stated that “a father may not obtain the protection of our judicial system to appeal a palimony and custody default judgment while he remains outside of the country avoiding arrest on an outstanding child-support bench warrant.”  The Appellate Division noted that defendant had been avoiding his court-ordered responsibility to support his two children, while seeking to appeal the issues of palimony and custody resulting from the same litigation.  The Appellate Division noted that the doctrine may be inconsistent with a proper analysis of the best interest of the child. However, under these facts the defendant had supervised parenting time, defendant failed to offer an alternative custodial plan, nor did he complain about custody throughout the litigation.  And, he waited until the absolute last possible date to file a motion to vacate default judgment.

Alimony Waiver for Failure to Enforce

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Payee may cause alimony waiver for failure to request enforcement.

Alimony Waiver or Alimony Forfeiture

Alimony Waiver if Failure to Enforce

A recent case decided on January 11, 2016, Lazar v. Lazar, dealt with the issue of possible alimony waiver for failure to enforce the provisions of the parties martial settlement agreement.  On appeal from Bergen County, both parties represented by counsel, the plaintiff appealed an order denying his motion to enforce the provisions of the final judgment of divorce, requiring defendant to pay past due alimony totaling $126,000. Plaintiff moved to Israel in 2010 before finalization of the final judgment of divorce, and defendant never paid the ordered alimony sum, stating that plaintiff failed to provide a mailing address. In his pleadings filed in 2014, plaintiff explained that his enforcement request was delayed, as he was homeless and suffered physical and mental problems, which interfered with his ability to address the matter. The trial judge denied relief and concluded that plaintiff’s failure to provide an address to facilitate payment was a condition precedent to his receipt of alimony. Therefore, his “material violation” resulted in an alimony waiver of all past due payments.

The appellate panel rejected the judge’s factual findings drawn without benefit of a plenary hearing as well as his erroneous legal conclusions invoking the doctrine of waiver. Defendant’s argument that once contacted by plaintiff’s counsel to resume alimony in August 2013, defendant had no obligation to resume payment because plaintiff had failed to provide an address, had possibly cohabited or remarried, and defendant had been temporary unemployed was rejected as meritless. The panel also rejected the judge’s conclusion that forfeiture of the alimony award was mandated because of prejudice resulting to defendant. Nor did equitable estoppel or laches demand forfeiture of the alimony award. “Laches is an equitable doctrine which penalizes knowing inaction by a party with a legal right from enforcing that right after passage of such a period of time that prejudice has resulted to the other [party] so that it would be inequitable to enforce the right.” L.V. v. R.S., 347 N.J. Super. 33, 39 (App. Div. 2002). “The core equitable concern in applying laches is whether a party has been harmed by the delay.” Knorr v. Smeal, 178 N.J. 169, 181 (2003) (emphasis added). The appellate court stated that no facts supported a finding that defendant was misled by the delay, to her detriment.

The appellate panel stated alimony is not intended to be a punishment or a reward, Mani v. Mani, 183 N.J. 70, 80 (2005), but exists only “to assist the supported spouse in achieving a lifestyle that is reasonably comparable to the one enjoyed while living with the supporting spouse during the marriage.”  Crews v. Crews, 164 N.J. 11, 16 (2000). The panel reversed the order and remanded the matter for a plenary hearing stating that a decision on plaintiff’s motion is solely based on the factual finding of whether defendant knew where to send alimony payments, the Family Part judge’s decision must be reversed because such a determination can only be made following a plenary hearing.

The question still remains how long before a forfeiture or an alimony waiver occurs if a spouse waits to enforce alimony?

Parents’ College Contribution in NJ

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Parents’ college contribution in NJ

Recently on December 30, 2015, the Appellate Court in Laurel v. Dixon reversed and remanded to Union County trial court for a plenary hearing to undertake the separate and discreet analysis of defendant’s financial capability to make college contribution and, if so, in what amount.  The Plaintiff, represented by counsel and defendant unrepresented appealed a June 24, 2014 order that denied her motion to compel defendant to: make a $5000 lump sum payment toward child support arrears; contribute toward their son’s college tuition; reimburse her $12,144.06 for one-half of their son’s tuition she previously paid; and pay her counsel fees. She also sought a lien on defendant’s retirement account to secure his support obligations.  The Appellate court specifically stated that the trial court failed to articulate any of the Newburgh factors.

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Parents’ College Contribution in NJ

The outcome of the case reminds the family division trial judges that to make a determination of a parent’s ability to contribute towards college expenses a detailed analysis of the Newburgh factors is required.  The Newburgh factors include:

  • Whether the parent, if still living with the child, would have contributed toward the costs of the requested higher education;
  • The effect of the background values and goals of the parent on the reasonableness of the expectation of the child for higher education;
  • The amount of the contribution sought by the child for the cost of higher education;
  • The ability of the parent to pay that cost;
  • The relationship of the requested contribution to the kind of school or course of study sought by the child;
  • The financial resources of both parents;
  • The commitment to and aptitude of the child for the requested education;
  • The financial resources of the child, including assets owned individually or held in custodianship or trust;
  • The ability of the child to earn income during the school year or on vacation;
  • The availability of financial aid in the form of college grants and loans;
  • The child’s relationship to the paying parent, including mutual affection and shared goals as well as responsiveness to parental advice and guidance; and
  • The relationship of the education requested to any prior training and to the overall long-range goals of the child.

Parents’ college contribution in NJ is dependent on the individual facts of each case and requires detailed analysis.