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Wednesday, December 27, 2017

USING COMMON SENSE, OR NOT THROWING CAUTION TO THE WINDS IN PLANNING YOUR DIVORCE.


 Jonathan D. Gordon, Ph.D., J.D.
© Jonathan D. Gordon, Esq. 2017-2018


So, you may be certain that you are going to initiate a divorce after the holidays are over.  In fact, you may have already secretly consulted with an attorney or did some preliminary research about the process.  Assuming you are not in an emergency situation, there are some common-sense guidelines that you should become aware of if you are not already thinking about them.
It is hard to imagine that someone with whom you have shared a bed, perhaps had children with, and spent years with, could become your enemy overnight.  Despite the fact that you may have grown apart over time, engaged in mutual avoidance or bickering, or worse, your identity is still wrapped up in living with this other person (i.e. “The Devil you know”).  You may have assumptions about how you both should comport yourselves with each other. Perhaps you assume certain ironclad, inviolable tenets of privacy, decency and rules of fair play with your partner.  If you assume, however, that any of this will necessarily apply once you announce your plan to divorce or leave, etc., then you are being na├»ve and setting yourself up for harm.
Actually, in many cases, the other party may react badly, emotionally or even violently. That violence may be physical against you, or against property—your property.  If there is violence or threat of violence, or harassment against you, then you have a cause of action for domestic violence and may obtain a restraining order. A call to the police if needed, will immediately stop the threat (at least for the time being with a temporary restraining order (TRO), until things can be sorted out in court).  Otherwise, you can file a complaint for domestic violence in the Superior Court of New Jersey. In other cases, however, there may be a more passive-aggressive response by the “jilted” party. This is where your pre-planning comes in.  Things you can reasonably do:
           
▪ Get a post office box, open up your own checking account;
▪ Make a list of your personal belongings, property, bank accounts, etc.
▪ Find a safe place out of the house in which to keep your:
Diplomas, certificates, passport, engagement ring or other personal jewelry, watches, expensive shoes, birth certificate, naturalization or citizenship papers, transcripts, your personal bank statements, will, attorney’s business card, photos, laptop, etc. You may want to park that precious antique motorcycle or your stamp collection elsewhere.
If you get a new personal safe deposit box at a bank, you will have to divulge to the Court the location and contents of this box.  You should not put marital funds or your spouse’s property in such a box. You may want to photograph what you are placing in the safe and bring a reliable, credible witness with you. At some point, this box may become frozen by the Court (upon your spouse’s motion) and you may then gain access only under supervision (e.g. your attorney and spouse’s attorney at the bank). Just keep that in mind.  Also, some examples of the things you may not do to plan your divorce:
▪ Cancel or change any insurance (health, life, auto, homeowners,
etc.). You will have to certify to the Court that you did not do
this for a 90-day period prior to the filing of the divorce
complaint. But if you maliciously wait 95 days, the Judge can
still do what he/she believes is equitable and fair for the other
party or your children who may have been severely
compromised by your actions.
▪ Cancel or change phone service (e.g. your spouse’s cell phone, or
Internet, cable, etc.; stop paying utilities, landscaping, etc.
▪ Move marital money around, empty bank accounts, hide funds,
transfer property or money from your name to that of others;  
▪ Change the marital status quo or do anything shady, sketchy,
underhanded, clandestine or harmful to the other party. The
Court will find out about it and make you restore the status
quo and it makes you look bad to the Judge. You don’t need
that. Good faith and acting fairly to the other party is important.

            Anything, however, can be agreed-upon between you and your spouse, provided you fully disclose to each other in good faith and draft some sort of written agreement that may be needed in Court later. For example, you and your spouse may agree to change the auto insurance, or change the cell phone account (to become two separate ones). You may agree to evenly divide all of your cash (checking and savings accounts).  As long as you fully divulge to each other and memorialize your agreement in a written document (notarized is best), then later you will not be criticized for wrongfully taking money from a joint account.  I would suggest, however, that before you make any agreements between yourselves, that you consult with a family law attorney. You may end up waiving something to which you would have been entitled, if you are not properly advised or cautious.  Don’t be so quick to waive alimony (if you might be qualified to receive it) or child support (which legally you cannot waive anyway).  Saying “I just want this over with” and acting impulsively can cause you more grief and regret later.
            Being open with nothing to hide is the best way to go. For example, if you had a joint checking account that had $40,000 in it, and you took $30,000 out, you will need to disclose this and pay back your spouse’s portion (the other $10,000 if ultimately it would have been an equal split). Your spouse’s car, even if titled in your name, remains your spouse’s car until the Court (or your spouse) says otherwise. Status quo must be maintained to the extent possible. You may be angry and full of hate for your spouse, but malicious behavior is not tolerated by the Court. You could end up paying your spouse’s legal fees if so.
            Having said all of this, with good faith and fairness notwithstanding, you may incur the wrath of hell from your spouse when it is clear that you are seeking a divorce or separating.  Keep in mind that all of your phone calls with your spouse may be recorded, your in-person conversations with your spouse may also be (audio or video) recorded, all of your texts and emails will be printed out and archived to use against you later, your Facebook and other social media posts will be studied and printed out to use against you later, your desktop computer or laptop that you leave around the house, will be perused, and so on. It is not unheard of for a spouse to hire a computer technician to make a copy of your hard drive when you are at work. Whatever you already posted on social media cannot be legally removed (destroying potential evidence), but you can exercise good judgment going forward by not posting anything incriminating (any more). You can change all of your personal passwords for your cell phone, your desktop (if not jointly marital) and laptop.   You cannot block your spouse from accessing a joint account. But you can ask the court to freeze your account to prevent it from being dissipated, pending final resolution of the financial issues in your divorce.
            Please do not talk about your divorce/separation with your children; don’t involve them; try to protect them as best you can, depending on their age and awareness. Do not fight with your spouse in front of the children, or say derogatory things about your spouse within ear-shot of a child. Don’t confide in your child as if your child is your confidante or worse: your therapist. Children are harmed by this reversal of roles. It is not their job to console a parent. It is hard enough for a child to get through this and to manage their own feelings. Managing a parent’s feelings as well, is too much to expect from a child.
            In short, it is best to use common sense to proceed with a divorce. Since this may be unfamiliar territory for you, and it is confusing, it would be best to consult an attorney who practices Family Law in your state.  Not only can you obtain legal advice, but you can get common sense and realistic feedback from your attorney as to the best strategies and ethical methods under which you may safely proceed.
Good luck, and please post a comment about your experiences.
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This blog and its contents is the intellectual property of-and are Copyrighted © by:
Jonathan D. Gordon, Ph.D., Esq., 2017-2018. All rights reserved.
DISCLAIMER:
Please note: Jonathan D. Gordon, Ph.D., J.D., is a Family Law Attorney in NJ and in NY, representing Family Law clients in Superior Court of NJ. He is also a Licensed Psychologist (NJ #1358, NY #5614, OH #7540) who has, in addition to providing general psychological services, performed forensic child custody evaluations and who has been appointed Guardian ad litem and Parent Coordinator by the NJ Superior Court, Family Division. No special skills or, expertise in either profession is implied by any reference to my being licensed as a Psychologist as well as being a licensed attorney.   The two professions are distinct and separate, with differing training and education, and they each have their respective licensing, rules of ethics and codes of professional responsibility.  Contracting with Jonathan Gordon in one profession precludes ever engaging his services in the other profession due to conflict of interest. This web site and blog are solely for general informational purposes and should not be construed otherwise and should also not be taken as tax advice (for which you must consult a C.P.A.). A professional relationship is not established until a retainer agreement is signed or if a consent for treatment agreement is signed for psychological services.
Please note, since this blog is for informational purposes only. It is neither legal, tax nor psychological advice and it does not create an attorney/client or psychologist/patient relationship. If you have a question about a specific matter or issue, you should seek out an attorney or mental health expert to assist you. In an emergency, please call 9-1-1 or visit your closest emergency room.
Call to schedule a consultation or for further information:
201-801-0455
email: jonathan@jdgordonlaw.com
Web Sites:  
www.jdgordonpsych.com

Tweet Me:  @jdgordonlaw; follow me on FaceBook


Thursday, November 30, 2017

SEARCHING FOR THE
BLISSFUL DIVORCE?
OR, FOR JUSTICE IN FAMILY COURT?
DO THEY EXIST AT ALL?

 Jonathan D. Gordon, Ph.D., J.D.
© Jonathan D. Gordon, Esq. 2017
            
Is there such a thing as a “blissful divorce”?   It may sound like an oxymoron, but in some rare instances it has been known to happen. For example, I know of a couple who went out for ice cream together when they left court, having just gotten divorced.  Just as rare is the concept of justice in Family Court since the issues are not so well-defined, nor is it always clear who did what to whom.  The concept of justice is usually more applicable in Criminal Court or perhaps in the Law Division where people sue others for negligence or breach of contract, for example. A thief who goes to jail received justice.  A victim of a tortfeasor (someone who caused an injury or loss to another for which money damages can be recovered) can receive justice in court with a money award to assuage their pain and suffering or to restore the previous status quo that existed prior to the loss.  But in family court?  What is justice and is it applicable?
            Often, a client in a divorce or child custody battle (to name a couple examples), thinks that if only the Judge could hear their story, it would be “all over” for their adversary (e.g. spouse or other parent of their child), that the Judge would be mortified, angry and punish the other party.  That is rare, however.  The issues in Family Court are typically littered with “he-said, she said” allegations, mud-slinging, character assassination, demonization and just plain lies.  Simply going before a Judge with a litany of allegations does nothing definitive for that client’s case.  There will be counter-allegations and predictable reciprocity in the mud-slinging department.  The Judge often has no idea where the truth lies, at least in the beginning since there is so much being alleged by the respective lawyers.  Typically, these allegations are verbalized in Court by an attorney.  The client has little opportunity to speak directly to the Court, except with permission if an attorney is representing them. And it is usually a bad idea for the client to speak without preparation, without the attorney’s blessing, on an impromptu basis. Things are blurted out, and it often makes things worse. A client should make sure their attorney is on the same page as them, has a passion for the arguments the client wants to be made, and is able to adequately verbalize those arguments.
            Allegations of child abuse or neglect need thorough investigation by the child protective service (CPS) of that State. In New Jersey it is called DCP&P (formerly DYFS). False allegations of abuse or neglect against the other parent is an evil thing to do to that parent and to the child. That can be considered emotional abuse or attempted parental alienation.  Real allegations and serious concerns of abuse or neglect, however, should be immediately reported and investigated. The state agency will do its work and report to the Court. The Judge will make further determinations when the information is provided to the Court in due course. That information may include written reports generated from mandatory mental health evaluations and substance abuse assessments.  It is a slow process but necessary. Who gets justice here?  In this scenario, we are talking about protection, health, parenting. Not justice. The best interests of the child are paramount.
            An angry party, for whatever reason (e.g. infidelity, rejection, financial losses, etc.) can rarely think objectively.  The other person is vilified and there is nothing that other person can do right in the eyes of the angry person.  That other party is portrayed as having no redeeming qualities, whether as a person or as a parent.  The other person is portrayed as being horrible, a sub-human, or piece of garbage in the eyes of the angry one. Being angry is rarely constructive if it is excessive or chronic.  It is actually self-defeating.  A chronically or extremely angry person litigating in Family Court often makes things worse.  It causes the Judge to take notice of the demeanor of the angry one, and to eventually realize that the allegations are very often false, simply malicious lies being told to the Court.  That makes a Judge angry. Judges don’t like being lied to, especially when it effects children and their relationship with either parent.
            Honestly, the Judge does not care much about the personal hurts that the parties carry around with them. The Court cannot afford to be distracted by the back-and-forth allegations by the parties, especially when the best interests of children are at stake. The Judge is interested in facts with proof, and then the court applies the facts—once they are ascertained—to the Law.  Family Court Judges also have discretion to do what they think is in the best interests of the children, even temporarily, while the facts are being gathered. Looking for justice in Family Court, is a rigid, perhaps moralistic expectation that a person may harbor, expecting “justice” to essentially be punishment of their ex or of the other parent. In essence, getting justice is akin to getting even, if conceptualized this way by the angry party.   The Judge does not share your anger or sense of outrage.
Sadly, as we all know, life is not fair. Sometimes people get away with bad behavior.  More often than not, the court will prefer to focus on the present than on the past. Your spouse may have been terrible as a spouse, and hurt you and your life in many painful ways. But that is usually why you are getting divorced.  Your spouse may have been inattentive, insensitive, selfish, narcissistic, hurtful, insulting, terrible in bed, and had numerous affairs. The Court will not take any of that into consideration unless there was domestic violence, child abuse, or purposeful dissipation of marital assets (for example). The divorce process is a business deal, dividing up marital assets, determining custody, parenting time schedules, alimony and child support.  Expecting the court to come down hard on the opposing party because of what you suffered, is unrealistic and expensive.  But the court will come down hard on the other party or on you if your child suffers.
It is most important to have a realistic view as to what you are going to court for, what you hope to accomplish, and if they are reasonable goals to have. Attorneys should discuss these issues with you and go through all of the possible scenarios, options,  strategies and probabilities of success, costs, etc.  Communication with your attorney is crucial, and it is important for the client to keep an open mind in the event that some goals (to give the ex a good beating in court, take them to the cleaners, get sole custody, etc.) are unattainable, unrealistic or self-defeating. The court will always ask itself, “Is it good for the kids?” before making a decision. What you may fantasize about (a “home run” in court) achieving may not be in your children’s best interests and you may not realize it because of the pain and anger you may be experiencing (which clouds judgment).  Sometimes a client gets counseling to help get support for what they are going through emotionally.  It can help in making better decisions, establishing realistic goals, reducing self-defeating anger, guilt, worry, depression, etc., and making the Family Court experience less acrimonious and perhaps, maybe even “blissful”.  Getting through the Family Court cooperatively and civilly with your ex, with lower attorney bills and more money in your pocket, can truly be blissful. But you won’t know unless you try.  And yes, it takes two. Sometimes you have no choice but to fight it out in court.  But you can at least be the one who goes through the process showing good faith, communicating civilly and respectfully, being cooperative and fair to the other party.  You can’t control the other person, but you potentially have control over your part of the process. 
Good luck, and please post a comment about your experiences.
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This blog and the term, “Blissful divorce” are the intellectual property of-and are Copyrighted © by: Jonathan D. Gordon, Ph.D., Esq., 2017. All rights reserved.
DISCLAIMER:
Please note: Jonathan D. Gordon, Ph.D., J.D., is a Family Law Attorney in NJ and in NY, representing Family Law clients in Superior Court of NJ. He is also a Licensed Psychologist (NJ #1358, NY #5614, OH #7540) who has, in addition to providing general psychological services, performed forensic child custody evaluations and who has been appointed Guardian ad litem and Parent Coordinator by the NJ Superior Court, Family Division. No special skills or, expertise in either profession is implied by any reference to my being licensed as a Psychologist as well as being a licensed attorney.   The two professions are distinct and separate, with differing training and education, and they each have their respective licensing, rules of ethics and codes of professional responsibility.  Contracting with Jonathan Gordon in one profession precludes engaging his services in the other profession due to conflict of interest. This web site and blog are solely for general informational purposes and should not be construed otherwise. A professional relationship is not established until a retainer agreement is signed or if a consent for treatment agreement is signed for psychological services.
Please note, since this blog is for information purposes only. It is neither legal nor psychological advice and it does not create an attorney/client or psychologist/patient relationship. If you have a question about a specific matter or issue, you should seek out an attorney or mental health expert to assist you. In an emergency, please call 9-1-1 or visit your closest emergency room.
Call to schedule a consultation or for further information:  201-801-0455
email: jonathan@jdgordonlaw.com
Web Sites:  
www.jdgordonpsych.com


Tweet Me:  @jdgordonlaw; follow me on FaceBook

Monday, September 11, 2017

LYING IN FAMILY COURT:
"SPIN"? OR BAD BEHAVIOR?
 Jonathan D. Gordon, Ph.D., J.D.
© Jonathan D. Gordon, Esq. 2017 
            
     We who represent clients in Family Court, often hear false allegations or lies presented. Those lies can usually be refuted by evidence to the contrary, or perhaps by the failure to support the lie with evidence (because it's a lie).  Unfortunately, in Family Court, character assassination and unproven allegations can also be used to sway a judge, casting doubt on a parent's ability to safely parent a child.  This is when bad behavior can be unwittingly rewarded.  Family Law attorneys sometimes reflect that they are so used to lying in court, that it is almost expected. The concept of perjury, as it is experienced in criminal court or in civil litigation, does not seem to have the same taboo when it takes place in Family Law. Why is this tolerated?
     One reason why lying is so ubiquitous in Family Court, is because it is difficult to ascertain what is a lie.  Saying that someone is a bad parent, or an uncaring parent is a value judgment, a perception, which is not necessarily a conscious lie. Both parents in a custody battle may exchange mutual accusations that the other is a lousy parent. Perhaps they are both wrong, but being angry, bitter or vindictive, they want to destroy the other with their destructive allegations (while not taking their child's best interests into consideration).
     It is upsetting, however, when we see a vindictive parent purposely making up falsehoods to present in Court, to accomplish their destructive goals.  Unfortunately, a Judge often cannot initially determine who is accurate and who is not. That is why in Family Court, Judges often rely on expert testimony from a hopefully objective professional who may delve deeper into what is really happening to this family and what is in the best interests of the child.  But an expert is not a prophet or a mind reader either. We find that when the same lie is repeated again and again, and it appears in court documents (e.g. client's certifications) year after year, well-it starts to look like it might be true. In fact, the creator of the lie might actually believe it him/herself because of the intensity of their feelings. Judges get frustrated, experts may sit on the fence (because the expert isn't sure), and the same lie is bandied around in a compelling way, implying that something has to be done about it quickly (the way the party who lies makes it sound).  As a result, at times, a non-drug abusing parent is sent for a substance abuse evaluation, has to have parenting time supervised, has to have parenting time limited, has to attend an anger management or parenting skills class, has to have a psychological or psychiatric evaluation, etc.  These are the exceptions rather than the rule, but they occur more frequently than you would expect.  At the most extreme, a judge might suddenly change residential custody in court, without a hearing, just based on the allegations of parental alienation from the other parent. 
     Unfortunately, a parent might provide ammunition to the other parent (who is making the allegations) in a moment of anger, saying inappropriate things to a child or even directly to the other parent.  I have previously discussed in this blog that at a time when someone else is trying to pounce on any imperfection, it is best to be careful what is said, how behavior is manifested, and how compliance with court orders takes place.  The other party should be assumed to be recording (audio and video) everything that is said, having a private investigator following you around, or soliciting sworn certifications from neighbors, relatives and caregivers to use against you in court. While repugnant to most judges, and while hardly ever used in court, surreptitious recordings of children may exist. Better to be watching one's "P's and Q's" during litigation to minimize this kind of unfair (and unnecessary) scrutiny.  When an adversary shows up in court with a handful of sworn certifications, or better yet--with your unfortunate text message to back up the "lie", that may be all that is needed to destroy your credibility with the judge.  And if your credibility is harmed, then the credibility of the lie is enhanced. In other words, you cannot afford to "lose it" even once in this setting or atmosphere. When you are being evaluated, watched, measured or tested (by being provoked), then anything that happens can be used in court if it seems relevant.  
     While attorneys for the most part are ethical, sincere and hard working professionals who are trying to properly represent their clients, there are a handful who have no qualms about twisting the truth in order to prevail in court.  While rare, it is sad to see that happen, and truth-twisting does happen.  Whether a judge will see that as "lying" per se, or just a case of zealously representing a client, depends on the judge, that lawyer, and on the circumstances.  But I have heard judges tell clients at the onset of a case, that if the judge is lied to once, that the client is "done", when it comes to credibility.  And every attorney knows that it takes a long time for an attorney, with a good track record, to establish a good reputation with a Judge, but all it takes is one slip-up with the truth to destroy their credibility. It still amazes me why any attorney would knowingly lie to a judge. It is simply not worth it, and it is wrong on so many levels.  
     Lying to destroy the other party is fairly well known in Family Court, and is not tolerated if it is identified as such.  Unfortunately, parents who do this with malice, are not considering the effects of their behavior on their children who need both parents (assuming the other parent is not abusive or substance-addicted). Wrongfully hurting the other parent's access to the child with unfounded lies and innuendo, as well as with false allegations of domestic violence or sexual abuse, is akin to child abuse in some situations, since it causes damage to the child by distancing the child from an otherwise loving and safe parent. This malicious behavior by an angry or hurt (rejected) parent is the height of narcissism and selfishly places their own needs before those of their child.  Hopefully the Family Court judge can quickly identify and discern what is factual from what is false, and get the family on the right track. Better yet, if an angry parent is thinking about destroying the other parent, it would be good to rethink that intention, perhaps get counseling to deal with the underlying issues, and to openly discuss their concerns for their children and for themselves with an experienced family law attorney who will almost always provide a realistic path for the client, upon which to proceed ethically and morally during this difficult time. 
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Good luck, and please post a comment about your experiences.
Copyright © Jonathan D. Gordon, Ph.D., Esq.,  2017
Jonathan D. Gordon, Ph.D., J.D., is a Family Law Attorney in NJ and in NY, representing Family Law clients in Superior Court of NJ . He is also a Licensed Psychologist (NJ #1358, NY #5614, OH #7540) who has performed forensic child custody evaluations and who has been appointed Guardian ad litem and Parent Coordinator by the NJ Superior Court, Family Division.
Please note, this blog is for information purposes only. It is neither legal nor psychological advice and it does not create an attorney/client or psychologist/patient relationship. If you have a question about a specific matter or issue, you should seek out an attorney or mental health expert to assist you.
Call to schedule a consultation:  201-801-0455
email: jonathan@jdgordonlaw.com
Web Sites:  
www.jdgordonlaw.com
www.jdgordonpsych.com

Tweet Me:  @jdgordonlaw; follow me on FaceBook

 

Thursday, August 17, 2017

BEST INTERESTS OF THE CHILD
PREVAILS IN RELOCATION CASES
 Jonathan D. Gordon, Ph.D., J.D.
© Jonathan D. Gordon, Esq. 2017 
            Interestingly, when a divorced parent wanted to relocate outside of New Jersey (referred to as “removal” in Court), and the other parent did not consent, the previous standards used to favor the parent seeking to move. Without going into great detail about the factors that a Court would use to determine if the removal of the child would be allowed, the NJ Supreme Court just overturned the previous standard in favor of an analysis of the best interests of the child.  Previously, if a custodial parent wanted to move, that parent would have to show “cause” for the proposed move by showing “a real advantage to that parent” by moving as well as showing that the sought-after move would not be “inimical to the best interests of the child”. (Cooper v. Cooper, 99 N.J. 42 (1984). In the subsequent Holder v. Polanski, 111 N.J. 344 (1988) case, the parent requesting the removal who had primary residential custody of the child, simply needed to show “a good faith reason” and that the move would not be “inimical” to the best interests of the child.  Subsequently with parents who shared custody, that application for removal would be treated as a matter of changed circumstances with a request for a custody change, based on a best interests analysis. (Baures v. Lewis, 167 N.J. 91 (2001)). All that was needed under Baures for a successful application, was for the parent to have primary residential custody, show a good faith reason for the move, present a parenting plan for the child to continue to see the noncustodial parent, and show that the move would not be inimical to the child’s best interests. There, the belief was that a happy parent would benefit the child as well.  The N.J. Supreme Court just reversed itself with the new case, Bisbing v. Bisbing which was decided on August 8, 2017 (A-2 077533).
            Under previous NJ Law, it used to matter who was designated Primary Parent of Residence (PPR) because the Court would be inclined to allow the move if requested by the PPR, if a showing of good faith was made and the move was not “inimical” to the best interest of the child (given an adequate parenting plan, usually involving a few weeks in the Summer plus holidays, etc.).  Now under the new decision, it does not seem to matter who is residential custodial parent (PPR) or who is the Parent of Alternate Residence (PAR) as long as the PAR has some reasonable involvement in the child’s life and there is joint legal custody. That includes the usual PAR schedule of alternating weekends and a mid-week dinner time and alternating holidays.  It does seem to matter, however, if one parent has sole legal custody and a court will have to analyze the circumstances underlying that arrangement and see what is in the child’s best interests. For example, it is possible (although much less frequently found) that a parent having no legal custody at all, still has parenting time, is very involved in the child’s life, etc. Then the court would have make an individual determination in that rare and unlikely fact pattern.
Now that the Supreme Court of New Jersey changed course, there are many new factors to consider.  What is “best interests of the child” and how is it measured?  Is it quantifiable and scientifically derived from some accepted methodology? Actually, “best interests” is a court determination. Otherwise it may be an opinion of a forensic evaluator which can be disputed by the opinion of another forensic evaluator.  Ultimately the Judge must decide if the move is in the child’s best interests or not. The benefit to the parent seeking to move is no longer a factor.  New Jersey Statute (N.J.S.A. 9:2-4) lists a number of factors that a judge must consider in determining best interests and custody.  These include, but are not limited to: The parents’ ability to agree, communicate and cooperate, any history of withholding or obstructing parenting time from the other (not due to abuse), safety of the child, the child’s preferences “when of sufficient age and capacity to reason so as to form an intelligent decision”, the degree of cooperation in co-parenting, history of domestic violence, the distance the parents live from each other now, the number and age of siblings, the interaction and relationship of the child with the parents and siblings, stability of the home environment, quality of parenting time spent with the child after separation, parent’s employment responsibilities, and any other factor deemed appropriate by the Judge.  No longer is equal shared parenting time required to have a quality relationship between parent and child—even for the parent of alternate residence.
It is hard to say how this will change current and future court applications for relocation by a parent who wants to move with the child.  Some judges may insist upon a forensic best interests evaluation:
       To conduct a best interests analysis, a forensic evaluator (could be for example, a Psychologist, Social Worker or Psychiatrist) would need to evaluate the child(ren) in question, both parents, relevant extended family members (e.g. grandparents, siblings, etc.), and collateral contacts.  What are collateral contacts (also known as collaterals)?  They are usually people who may be caregivers (e.g. babysitters, physicians, dentists), or teachers and school personnel, coaches, dance/gymnastics instructors, etc. Usually each parent will submit their own list of whom they think will be important for the evaluator to interview. These interviews may be in person or on the phone.  In some cases, the evaluator may do a classroom observation or a home inspection. At times, when one parent makes an allegation about the other, the evaluator may go back to the other parent and discuss it to hear their side of the story. The gathering of all of the information should be thorough, fair and balanced for objectivity. Usually, there are two sides of the story.  Sometimes, however, there is an imbalance that is created by information provided by a parent or information derived from the child(ren) or others.  A best interests evaluation can be via a court-appointed expert, a joint expert (agreed-upon by both parties), or two privately-retained experts, or a combination of the above.
         Things to be aware of:  For a parent seeking relocation with a child, and in anticipation of the required court process, the following guidelines should be followed:
         Do not lie, embellish, make up fictional allegations, purposely omit important facts.  It is better to focus on your relationship with the child, your concerns for your child’s health, education and general welfare, the bond you have with the child, any special circumstances that may steer the court in a certain direction.  Regardless of whether you are the parent seeking to relocate, or the parent who objects to the relocation, it is not helpful to your case to demonize the other parent. Unless there is a documented history of domestic violence, child abuse, or substance abuse, or some factual history that is noteworthy for its importance and relevance to the “best interest of the child”, it is probably not going to help you to sling mud and insults at the other parent. It may have the opposite effect on the perceptions of the evaluator, especially when your child actually has a relationship with that parent.
            I have written previously in this Blog that angry emotions stemming from feelings of abandonment and rejection (among other issues), often fuel Family Court litigation. It also sometimes fuels vengeful feelings against the other parent. Making up fictional allegations, minimizing (to the evaluator) the other parent’s involvement in the child’s life, exaggerating innocuous incidents (as if they really mean something significant against the other parent), and generally letting your anger spill over into the interviews—will all work against you. It will make you look like a malicious, vindictive person who is not operating in good faith, but who just wants to destroy the other parent or to marginalize their involvement in the child’s life. In other words, you can destroy your own credibility with the evaluator (and with the Judge) by not being completely honest and forthright, and by being unfair to the child and to the child’s other parent.
Let’s say that you really want to move out of the State and maybe you have a great reason to do so (employment opportunity, marriage, etc.), that is formulated in good faith, and is not stemming from your hatred of the other parent.  Under the new Bisbing ruling, that might not be good enough.  Even being PPR and having spent more time than the other parent with this child may not be good enough.  Under N.J.S.A. 9:2-2, if a parent wants to relocate with the child against the wishes of the other parent, that child may not be removed from the State “unless the court upon cause shown, shall otherwise order”. (Emphasis added).  “Cause”, as now defined by Bisbing is determined by a best interests analysis with the court considering all of the relevant factors enumerated in N.J.S.A. 9:2-4(c). See above for examples.
It is fairly clear that in most cases, a parent seeking relocation against the wishes of the other parent will have to go to trial after this evaluation (or evaluations) are completed.  The expert(s) will testify on the contents of their findings, will be cross-examined and there will be testimony from the parents, relevant collateral contacts, other  witnesses, and finally the Court will make its determination.  For couples going through divorce, and who anticipate that they may make a relocation request in the future, they may now be motivated to attempt to get sole (legal) custody of their child(ren) to make it easier for themselves later (because it is easier to get court approval to move if you have sole custody). Unfortunately, that will result in many more divorce trials if parents battle for sole legal custody then, rather than to have a legal disadvantage (if they are planning to relocate) later on.  But, the presumption in New Jersey, as stated by the Legislature in N.J.S.A. 9:2-4, is that it is in the public policy of this state for parents to equally share their obligations, rights and custody of their children unless the court in custody proceedings makes another determination with the best interests of their child as the primary consideration. The bottom line message seems to be that children need both parents, even if the parents did not fare very well as spouses or partners with each other. If you have to go through an evaluation, try not to sling too much mud, because mud tends to get you dirty as well.
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Good luck, and please post a comment about your experiences.
Copyright © Jonathan D. Gordon, Ph.D., Esq.,  2017
Jonathan D. Gordon, Ph.D., J.D., is a Family Law Attorney in NJ and in NY, representing Family Law clients in Superior Court of NJ . He is also a Licensed Psychologist (NJ #1358, NY #5614, OH #7540) who has performed forensic child custody evaluations and who has been appointed Guardian ad litem and Parent Coordinator by the NJ Superior Court, Family Division.
Please note, this blog is for information purposes only. It is neither legal nor psychological advice and it does not create an attorney/client or psychologist/patient relationship. If you have a question about a specific matter or issue, you should seek out an attorney or mental health expert to assist you.
Call to schedule a consultation:  201-801-0455
email: jonathan@jdgordonlaw.com
Web Sites:  
www.jdgordonlaw.com
www.jdgordonpsych.com

Tweet Me:  @jdgordonlaw; follow me on FaceBook


            

Tuesday, July 25, 2017

SHEDDING YOUR SKIN IN FAMILY COURT?

Jonathan D. Gordon, Ph.D., J.D.
© Jonathan D. Gordon, Esq. 2017 


          When a relationship dissolves, one would logically want to disassociate from the old partner, never see him/her again, walk away and never look back, etc., assuming fairly healthy thinking.  But it’s not that easy in Family Court cases that involved children or even with long term alimony issues.  Often, the relationship is truly “till death do us part” by its very nature.
            Having children with a partner just about guarantees that you will be tied to the other parent at least until the child is an adult, but it usually goes beyond that, into grandparent-hood. As I have stated in this space before, it is virtually impossible to surgically dissect away a former spouse when you have a child. While you might be able to plan separate birthday parties and vacations, you will not be able to plan separate weddings, Communions, Bar and Bat Mitzvas, college graduations, and births of your grandchildren, etc.  While it is difficult to think that far ahead when your child of divorce is eight years old, you might want to keep your interactions with your estranged or ex- partner on a civil and cooperative playing field because before you know it, your child will be 18, then 28, etc.
            Sometimes there is no escaping someone even when they live elsewhere, and you feel haunted and stalked by your own social media. For example, after a divorce or other break-up, you will be tormented by regular reminders of “this day in history”, for example, where you will be involuntarily subjected to photos of formerly loving moments you had  with someone you would rather not see.  Going through your Google photos or your phone gallery of pictures will yield, sometimes thousands of photos of your ex and you, during happier times. Also, your child will not let you forget about your ex. How do you deal with this now in a healthy manner?
            Sometimes it is better to take a step back, breathe, forgive, and accept certain realities, as touched upon above. The photos and social media example is only one facet of the bigger picture.  If you can speak civilly with your ex, it is best for you both to agree to keep it civil and cooperative for the sake of your children. You cannot obliterate your ex’s existence.  There is no way to do that legally, it is not realistic and it is not healthy for your child. Despite your hurt, your sense of betrayal, your anger, this person is someone who you once loved and with whom you created a child.  Is it good for you and your child, now that the relationship ended, to retain anger, hurt and sense of betrayal? That only hurts you because you are the one who feels lousy inside. It is also not good for your pocketbook either, since anger fuels needless litigation in many instances.
As I have also said previously in this space, it is good for your child (with a few specific exceptions related to criminal behavior, substance abuse and child abuse) to know that it is ok to freely enjoy a loving relationship with both parents.  Alienating a child from the other parent (overtly or subtly)  is a form of emotional child abuse.  If it is too painful to exist in the same sphere as your ex, to deal with him/her civilly and cooperatively as related to your child, then perhaps some counseling might be helpful. After the initial dissolution crisis dissipates, it is healthy for a person to settle down emotionally and to move on, keeping things in their proper perspective for the good of everyone concerned. When someone has great difficulty doing this, cannot forgive, retains significant anger, has violent fantasies, depression, etc., it is unhealthy for the person and for their child.
It is difficult, if not impossible, to completely shed one’s skin and totally start anew, as if to regenerate without memories of a previous life once shared.  The best one can realistically hope for is to feel ok, to be able to move on with life happily, and to accept the ex as a formerly important figure, who may still be a very important figure and role model for a child. That requires some mental gymnastics in some cases, but should be attempted and mastered. Your child needs the freedom to love both parents and to enjoy time with both parents, assuming there are no extreme, contraindicating circumstances. Going forward with your life is quite different from your child’s experience of the breakup, and it might be good to acknowledge this difference with your child, and to validate their need to enjoy their other-parent relationship without conflict, anxiety or guilt.
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Good luck, and please post a comment about your experiences.
Copyright © Jonathan D. Gordon, Ph.D., Esq.,  2017
Jonathan D. Gordon, Ph.D., J.D., is a Family Law Attorney in NJ and in NY, representing Family Law clients in Superior Court of NJ . He is also a Licensed Psychologist (NJ #1358, NY #5614, OH #7540) who has performed forensic child custody evaluations for the Courts and who has been appointed Guardian ad litem and Parent Coordinator by the NJ Superior Court, Family Division.
Please note, this blog is for information purposes only. It is neither legal nor psychological advice and it does not create an attorney/client or psychologist/patient relationship. If you have a question about a specific matter or issue, you should seek out an attorney or mental health expert to assist you.
Call to schedule a consultation:  201-801-0455
email: jonathan@jdgordonlaw.com
Web Site:  www.jdgordonlaw.com
www.jdgordonpsych.com

Tweet Me:  @jdgordonlaw; follow me on FaceBook