NJ Supreme Court gives both parents an equal voice in deciding last name of the child

Posted on August 13, 2013 by Sandy Durst

In a recent NJ Supreme Court decision, the rights of the non-custodial parent were placed on equal footing with those of the parent of primary custody when it comes to establishing the surname of the child.  This is an important development in the law for the non-custodial parent.

 

Parents Stand on Equal Footing in Child Name-Change Applications
Pulling back on a nearly two-decade-old doctrine, New Jersey’s highest court held Monday that where parents agreed on a child’s surname at the time of birth, there is no presumption in favor of the custodial parent if the name is later sought to be changed. The unanimous court, in Emma v. Evans, A-112-11, applied a different analysis than in Gubernat v. Deremer, 140 N.J. 120 (1995), where it found a presumption in favor of the primary custodial parent involving the initial naming of a child born out of wedlock.

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Actual income & potential income relevant to support analysis

Posted on July 11, 2013 by Sandy Durst

In a recently decided case, the appellate court affirmed the long held principle that when it comes to analyzing a parties income for determining support obligations, the actual income must be considered as well as the earning potential or earning capacity of the individual.  Regardless of what side of this argument you may find yourself, The Durst Firm has the experience necessary to present persuasive arguments to the court.

FAMILY LAW
20-2-0594 Bell v. Bell, App. Div. (per curiam) (10 pp.) Plaintiff appeals from various aspects of postjudgment orders of the Family Part. The panel concludes that the court correctly excluded defendant’s Temporary Assistance to Needy Families benefits from his gross income under the child-support guidelines but in suspending his payment obligation completely because of his TANF eligibility, the court overlooked the possibility that the ability to earn additional income may be imputed to a parent who is the recipient of TANF or other means-tested government benefits. Because the judge did not make the necessary findings regarding defendant’s ability to earn additional income, the panel remands for a retrospective assessment of whether any income should have been imputed to him during the period he was receiving TANF benefits. As to the remaining issues, which fundamentally pertain to custody and visitation, because the panel finds that the matrimonial settlement agreement, which plaintiff seeks to enforce, and the psychologist’s expert recommendations have become stale with the passage of time, it remands for reconsideration by the Family Part, in anticipation that the court arrange, if it is financially feasible, for an updated expert evaluation of the child.

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Domestic Violence and the loss of firearms license

Posted on June 27, 2013 by Sandy Durst

Domestic violence is a serious issue and the State of New Jersey takes the ongoing safety of the victim seriously. The presence of firearms in a volatile relationship only serve to increase the risk of serious harm or even death.  Even if the abuser has a valid firearms permit and the guns were legally obtained, a finding of domestic violence can allow for the seizure of all weapons (even if not used in the underlying act of domestic violence) and forfeiture of the abuser’s firearms licenses and purchasing permit.  The case described below details some of the relevant considerations the court will consider when facing a request by the State to seize weapons / licenses.

 

FAMILY LAW 20-2-0433 In the Matter of the Seizure of Weapons Belonging to D.P.P., App. Div. (per curiam) (12 pp.) Defendant D.P.P. appeals from an order entered by the Family Part, granting the State’s motion to forfeit his seized weapons and to revoke his firearms permits and licenses, pursuant to N.J.S.A. 2C:25-21(d)(3). He contends that the trial judge erred in permitting the State to retain an expert witness after the trial had commenced, and that the trial judge’s factual findings were against the weight of the evidence. The appellate panel disagrees and affirms substantially for the reasons stated by Judge Firko. Based on defendant’s mental illness and his history of violence and threats of violence toward his co-workers and his ex-wife, the judge concluded that the State carried its burden of proving that allowing defendant to have firearms would pose a danger to the public health, safety or welfare. It was not an abuse of the judge’s discretion to allow the State to present testimony from its expert. The defense had time to prepare a response to the defense expert’s testimony and was permitted to re-call its own expert after he testified. As a sanction, the judge ordered the State to pay defendant’s expert’s fee.

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US Supreme Court stikes down DOMA & Prop 8!

Posted on June 26, 2013 by Sandy Durst

In a historic decision earlier today, the US Supreme Court struck down the highly criticized Defense of Marriage Act (DOMA) & the controversial California law known as Prop 8.  As a lawyer and a human being I am thankful that our Supreme Court found the collective wisdom to treat all citizens equally regardless of their sexual orientation.  Everyone deserves the right to be in a committed, happy, healthy, and government endorsed relationship.  Marriage is unique in that it is both a civil/legal contract and religious institution.  These lines frequently get blurred and are the cause of much of the emotional rhetoric on this issue.

 

There are many benefits that are granted to married persons including but not limited to tax filing status, inheritance tax benefits, the ability to make health care decisions for their spouse, adoption of children, and the list goes on.  There is no legitimate reason that same sex couples should not enjoy these same government-bestowed rights and privileges.

 

For same sex couples, today’s decisions are historic, long overdue, and the simple recognition that the prior law was wrong and that your relationships have value.  These decisions also present a wide range of new legal options, rights, and responsibilities.  The Durst Firm, LLC is here to assist you in navigating these new possibilities.

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I cant’ afford my child support payment? What should I do?

Posted on June 23, 2013 by Sandy Durst

In a NJ divorce, both parents have an obligation to financially support the child(ren) of the marriage.  Child support can be calculated utilizing the NJ Child Support Guidelines or the parties can agree to deviate from the Guidelines.  Child support is typically paid to the parent exercising primary residential custody by the other parent.  Once  a child support order has been entered it is critical that the payor spouse do everything possible to satisfy the obligation. The parent of primary residence needs the support to help defray the expenses of the children.  However, situatuons develop that make it difficult, if not impossible, the meet a child support obligation whether it be due to illness, job loss, or other factors which impact the ability to pay.

 

If you find yourself unable to pay your child support obligation, what should you do? Well, you should seek relied from the Court as soon as possible.  Meet with an experienced attorney quickly to review your case and determine if a motion to modify/reduce child support is appropriate.  You should not simply stop paying. You should not rely on your former spouse’s “agreement” to take less or defer receipt of your payments until a later date.  These agreements are not necessarily binding and can lead to additional problems.   Failure to pay child support an lead to wage garnishment, seizure of any tax refunds you may be entitled to receive, the revocation of your drivers license (or any other state issued license), and potentially, incarceration.

 

There is no doubt that the current economy has made paying child support difficult.  If you feel you need relief, take the proper steps and do not engage in self-help.  The attorneys of The Durst Firm have the experience to assist you in your child support matters.

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