Should children have their own attorney in parental termination cases?

Posted on October 17, 2012 by Sandy Durst

In an apparent effort to protect the rights and interests of children in NJ, the Assembly Judiciary Committee is   proposing to require children in parental termination cases be provided with their own attorney.

BILL WOULD GIVE CHILDREN COUNSEL IN PARENTAL TERMINATION CASES
The Assembly Judiciary Committee on Thursday recommended passage of bills that would expand juveniles’ representation in parental termination cases, increase privacy rights for domestic violence victims and broaden the universe of potential jurors called for voir dire. Under current law, any minor whose parent is the subject of parental rights termination proceedings is represented by a law guardian. A-700 would require the Office of the Public Defender to provide counsel who would have to ensure the child’s wishes are expressed to the court and that the child’s interests are protected through final placement. Lawyers assigned to such cases would be trained in post-termination review processes.

Posted in Durst Firm News | Tagged , , | Comments Off on Should children have their own attorney in parental termination cases?

NJ Legislature and Senator Scutari continue to attack divorcing NJ Women

Posted on October 16, 2012 by Sandy Durst

     In a proposed bill ( http://www.njleg.state.nj.us/2012/Bills/S2500/2151_I1.HTM) that is being sponsored in the NJ Senate by Senator Scutari and which has recently been endorsed by the Assembly Judiciary committee, the viability of previously entered into premarital or prenuptial agreements is at risk.  This bill follows the Senator’s attack on palimony which has harmed untold numbers of NJ citizens, primarily women.  Now, this bill attempts to rewrite the standards that will govern whether or not a premarital agreement will be enforced.  The changed standard is disguised behind a noble intention.  As the introduction to the bill reads: “This bill would strengthen the enforceability of premarital and pre-civil union agreements.”  The true interpretation: we want to make it harder for women to get out from under a bad prenup regardless of how many years ago they entered into the agreement. A with the growing call for alimony “reform” in NJ, altruistic titles can mask the true intentions of legislation. 

    Presently, a premarital agreement may be set aside upon proof that the agreement was unconscionable at the time enforcement was sought; or proof that the party seeking to set aside the agreement: (1) was not provided full and fair disclosure of the earnings, property and financial obligations of the other party; (2) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; (3) did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party; or (4) did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel. This standard has worked well for years.

    Now, the proposed bill attempts to shift the relevant time period for determining whether the agreement is unconscionable to the date the agreement was executed.  How can lawyers and judges be called upon to go back into the past and discern the intentions and thoughts of the parties? Can all of the necessary documents be recovered?  Can the facts be satisfactorily establised and relied upon without being tainted by revisionist history?  Doubtful.

    The legislative attacks on divorcing women in NJ must stop.  Legislation such as this does not promote the commin welfare; it advances the goals of few at the expense of others.

Posted in Durst Firm News, Durst on Divorce | Tagged , , , , , | Comments Off on NJ Legislature and Senator Scutari continue to attack divorcing NJ Women

Prior history of Domestic Violence not proper basis to issue a restraining order

Posted on October 15, 2012 by Sandy Durst

When a victim of domestic violence is seeking a restraining order, NJ courts are required to examine the acts or acts which prompted the request for a temporary restraining order as well as the past history of domestic violence, if any exists.  The prior acts do not have to have resulted in a restraining order.  Analysis of both the present and past acts often results in a difficult balancing test for the court and confusion for the alleged victim. 

In this recent decision the court once again states that the prior acts – even if credible – are an incorrect basis to issue a restraining order if the current, or predicate, act is not found to be an act of domestic violence. If you are on either side of a domestic violence matter it is important that you retain an attorney who understands the proper use of prior acts.

FAMILY LAW — DOMESTIC VIOLENCE
20-2-7859 D.M. v. L.R., App. Div. (per curiam) (5 pp.) Defendant appeals from a final restraining order entered against her pursuant to the Prevention of Domestic Violence Act. Defendant argues that the trial court erred in adjudicating a domestic violence complaint by focusing on the “past history” between the parties and not addressing the actions alleged in the complaint. The appellate panel agrees and reverses. The trial judge did not make any finding that the complained-of events actually occurred or that, if they did, whether such acts amounted to harassment requiring the issuance of a final restraining order. When the court found that defendant committed domestic violence based upon a violation of a prior “consent agreement” between the parties, the court essentially converted the hearing into one on acts of domestic violence not alleged in the complaint, depriving defendant of her right to due process. The judge’s determination was conclusory and not anchored in specific findings of fact which would have supported the finding that a final restraining order was necessary.

Posted in Durst Firm News, Durst on Divorce | Tagged , , | Comments Off on Prior history of Domestic Violence not proper basis to issue a restraining order

NJ Court expands protection under domestic violence law

Posted on October 12, 2012 by Sandy Durst

The NJ domestic violence law has once again been interpreted to provide protection to residents in an ever growing list of living arrangements.  While I certainly commend goal of protecting citizens from domestic violence, I must wonder whether this recent expansion is truly in keeping with the original purpose and intention of the Prevention Of Domestic Violence Act.

DOMESTIC-VIOLENCE LAW APPLIES TO BOARDING HOUSES, COURT HOLDS
Rooming-house residents may be considered members of the same household for purposes of the Prevention of Domestic Violence Act, a state appeals court ruled Thursday in the case of a woman allegedly raped by a boarder. “The PDVA aims to protect those living in family or family-like settings,” Appellate Division Judge Francine Axelrad wrote for the panel in S.P. v. Newark Police Department, A-5591-10, adding that courts have liberally construed the term “household member” in the act. The plaintiff and her assailant met the broad and flexible interpretation of the term “household member” because they lived on the same floor, with bedrooms directly across from each other, and a shared bathroom and kitchen.

Posted in Durst Firm News, Durst on Divorce | Comments Off on NJ Court expands protection under domestic violence law

NJ Court clarifies when a risk assesment is needed with respect to parenting time

Posted on October 9, 2012 by Sandy Durst

 This recently decided case highlights the intersection of domestic violence and custody/parenting time.  Recognizing that the safety and welfare of the children should be the paramount concern the court required the assessment in this case.

FAMILY LAW — CUSTODY
20-4-7829 Lavine v. Lanza, Ch. Div., Cape May Co. (Rauh, J.S.C.) (3 pp.) The issue presented is whether N.J.S.A. 2C:25-29(b)(3)(a), requiring a risk assessment when requested prior to the entry of an order for parenting time unless arbitrary or capricious, applies in the context of an application to modify a final restraining order that already provides for parenting time. The court concludes that given the facts presented in this case it does. [Decided May 2, 2012.]

Posted in Durst Firm News | Comments Off on NJ Court clarifies when a risk assesment is needed with respect to parenting time