Happy Father's Day!

A great article on the importance of being there....

Happy Father's Day!

How do courts determine if one parent should get primary custody over the other parent?

In Pennsylvania, it takes an analysis of sixteen separate factors to determine the outcome of a custody dispute. This means that a mother cannot walk into court, tell a judge she is breast-feeding her child, and expect that she will be granted primary physical custody on that alone. This, however, is exactly what one Pennsylvania mother tried to do. J.R.M. v. J.E.A., 2011 PA Super 263. (Courts tend to use initials to protect the identity of the parties in cases involving young children.)

In the case of J.R.M. v. J.E.A, J.R.M. (“Father”) and J.E.A. (“Mother”) conceived a child after two months of dating. By the time the child was born, Father and Mother were no longer together. Mother filed a complaint for custody, seeking shared legal custody and primary physical custody. Days later, Father also filed a complaint for custody seeking shared legal custody and primary physical custody. (Legal custody is essentially decision-making power while physical custody is where the child resides.)

The parties were heard before a trial court in March 2011 which resulted in an order for shared legal custody with primary physical custody to Mother and partial custody with restrictions to the Father. The court had one reason for granting primary physical custody to Mother: she was breast-feeding. It ordered that once Mother was no longer breast-feeding, Father would get more time but still, his time had certain restrictions, for example, he was not allowed to keep the child overnight.

Father appealed this order and argued that the trial court did not engage in the proper fact-finding and factors analysis needed to determine which custody arrangement would be in the best interest of the child. The trial court also did not engage in the proper fact-finding needed when it decided Father should have partial custody with restrictions.

The PA Superior Court, our appellate court, agreed with these arguments brought by Father. To determine custody, courts must consider which custody arrangement would be in the best interest of the child. The PA custody statute lists sixteen different factors that judges must consider in light of what would be in the best interest of the child. These factors are as follows:

1) Which party is more likely to encourage contact between the child and the other party.
2) Present and past abuse committed by a party or a member of the party’s household.
3) Parental duties performed by each party on behalf of the child.
4) Need for stability in child’s education, family life and community life.
5) Availability of extended family.
6) Child’s sibling relationships.
7) Well-reasoned preference of the child, based on child’s maturity and judgment.
8) Attempts of one parent to turn the child against the other parent, except in cases of domestic violence where reasonable safety measures are necessary.
9) Which party is more likely to maintain a loving, stable, consistent and nurturing relationship with the child adequate for child’s emotional needs.
10) Which party is more likely to attend to the daily physical, emotional, development, education and special needs of the child.
11) Proximity of residences of the parties.
12) Each party’s availability to care for the child or ability to make child-care arrangements.
13) Willingness of parties to cooperate with one another.
14) History of drug or alcohol abuse of a party or member of party’s household.
15) Mental and physical condition of a party or member of party’s household.
16) Any other relevant factors.

The Superior Court determined that the trial court almost exclusively based its decision on the fact that Mother is breast-feeding, therefore, it failed to consider the other factors. The case was, therefore, sent back down to the trial court.

The Superior Court also agreed with Father that the restrictions placed upon him were without merit. An award for partial custody will only impose restrictions if either the parties have agreed to the restriction or if the party requesting a restriction shows that without it, there will be a detrimental impact on the child. The trial court did not engage in any fact-finding that would suggest Father would have any detrimental impact on the child, therefore, this part of the case went back to the trial court as well.

Parents must know when they walk into a courtroom for a custody matter that there is never a presumption for custody for one parent over the other. Both parents walk into court as equals and both parents have equal rights to custody of the child, unless the analysis and consideration of all sixteen factors proves that a primary custody award of one parent over the other is in the best interest of the child. While breast-feeding is obviously a real concern that imposes logistical concerns, this biological advantage of women cannot preclude dads from also bonding with their children.

This post was drafted by Lisa Haggerty, Law Student at Temple University Beasley School of Law and edited by Linda A. Kerns, Esquire

Divorce and Taxes

Each year, the Internal Revenue Service updates its Publication 504: Divorced or Separated Individuals.  For the 2012 version, click here.

The booklet offers explanations of the tax rules along with examples.  Have a copy with you when discussing terms of settlement with your lawyer and do not forget to consider the tax consequences!

Financial Advice from People's Life Experiences

The website www.learnvest.com publishes carefully curated stories of financial struggles and triumphs of people from all walks of life.  I highly recommend it.

Today's offering contains a story of a woman who found out after her marriage that her husband was riddled with debt, dishonest and the financial anchor that would weight her down.  Her "just married" happiness turned into sleepless nights of dodging creditors.  I hear these stories all too often in my practice.  Luckily, she was able to turn her financial life around.  Read about it here.

How well do you know your new spouse's financial situation?

Five Tips to Make Divorce & Separation Easier on your Kids

Children whose parents separate or divorce will feel a range of emotions, mostly sad or angry.  Try to do your part to make the path just a bit smoother.

Make the path smoother for your kids.

1. Stay positive about the other parent, both within and outside of earshot of your child.

As a relationship ends, no doubt, you feel that the other parent disappointed you in the worst way possible and has betrayed, hurt or lied to you. You also probably believe that you are the better parent and have trouble naming even one good thing about your ex.  Your children, even if they side with one of you, know that they came half from Mom and half from Dad.  When you insult the other parent, you are insulting a part of your child.  You are also making an extremely hurtful situation much worse because you are involving your children in something from which they should be protected.  Take the high road when it comes to the other parent.  Do not make nasty comments or even non-verbal expressions of disapproval about your ex.  Your children will be better off for it.

Stay positive about the other parent.

2. You be the parent and let children be children

Obviously, you are probably feeling sad, angry and scared but do not put your child in the position of confidante.  Your children are not your friends, support system or therapist.  They need their parent to be the adult so they can be the child.  Break-ups, divorce, financial woes and betrayals are adult sized problems that should be kept away from children.

Some things about the divorce will affect your child, like scheduling time with each parent and potential changes in lifestyle.  Keep things on a need-to-know basis. Division of assets, arguments about support and your complaints about the process should be off-limits when you communicate with your child.  You may need to tighten your belt if finances become an issue and you will, of course, need to discuss changes in your economic lifestyle with your children.  However, you should, inasmuch as possible, blame the situation and not anyone in person. 

 

Let kids be kids.

3. Tune in to your child’s feelings and always think about their perspective.

Children deal with divorce and turmoil in their parents’ lives in many different ways.  Watch for changes in sleep or eating and differences in their behavior.  Meet with teachers and ask about your child’s day to day activities.  Arrange for quiet thought sharing time without the distraction of television or other electronics.  A great way to get children to open up is to play the MAD-SAD-GLAD game.  Ask your child for one thing that gave them each feeling that day: MAD, SAD and GLAD.  It is a great way to tune in to what is important to your child and get them to open up to you.  

Think about your child's thoughts and feelings.

4. Introduce your new significant others with caution, care and concern.

A separation or divorce usually means that your time with your child has been reduced by half, or even more.  You have gone from being an everyday presence in their life to someone they see on a schedule.  If you introduce a new love interest into the time with your child, your child may see it as an infringement on their own parent/child time.  Children could interpret your new love interest as competition for your time and attention.  Additionally, no one can replace your child’s biological parent and they may see this new love interest as a “replacement” of mom or dad. Be gentle when introducing a new love interest and spend more alone time with your child so they do not feel that this new individual is replacing the parent they still love or taking your time away from the child.  

Blended families are not uncommon and can restore order and structure to a child’s life.  However, many children do not want to be forced into a step-parent relationship before they are ready.  A good rule of thumb is waiting a year before introducing a new boyfriend/girlfriend.  Continue to reassure your children how great they are, how much you love them, that they are your number one priority and allow them to adjust to the separation and divorce.  This will set the stage for a positive move into the next phase of your life.  

Wait to introduce new significant others.

5. Try to minimize the changes you can control

Children thrive on schedules and predictability.  Some parents are anxious to get on with a whole new life and explore different interests.  Whether it be a radically different lifestyle or a complete overhaul of diet in the home, now is not the time to implement drastic changes.  These changes can be discussed as a family and then gradually taken on when things have settled and you can incorporate your children’s feeling and emotions.  Children’s emotions will swirl around a divorce and whether they are relieved, devastated, happy, sad or hopeful, they are experiencing an emotional upheaval in their lives.  Inasmuch as possible, the rest of their lives should stay predictable and controlled so that they can take comfort in the familiarity of the aspects of their life that are staying the same.

Children thrive on predictability.

Getting divorced? Once the divorce is final, change your beneficiary designations, unless you agreed otherwise in your divorce.

Imagine if you get divorced.  And you forget to change the beneficiary designation on your life insurance policy so your now ex-spouse is your beneficiary.  You re-marry , maybe get another mortgage or have kids.  Your new spouse depends on your income.  You know you have a life insurance policy so you figure -- my new spouse will get it.

You die.  Your ex-spouse, still named on your life insurance policy, collects all of the proceeds and your current spouse is left with nothing.  Your current spouse sues and the case goes all of the way to the United States Supreme Court.  And your ex-spouse wins!  Talk about leaving behind a mess!

That is exactly what happened in the case of Hillman (current wife) v. Maretta (ex-wife).  In some states, a new marriage would cancel out the beneficiary designation, by law.  But in the Hillman v. Maretta case, a federal law was involved which trumped state law.

The moral of the story?  Get your ducks in a row and make sure your beneficiary designations are correct.  Losing a spouse is traumatic and complicated.  Do not make it worse on those you leave behind by failing to complete these relatively simple paperwork tasks.  Consult with your attorney because by agreement or court order, you may be required to keep your ex-spouse as a beneficiary.  However, do not do it by mistake.

You do not have to find out you are dying, to start living

Pennsylvania takes any history of Criminal Activity seriously when evaluating custody cases

In 2011, the Pennsylvania legislature enacted a new, comprehensive custody statute.  Section 5329 of that statute requires the court to consider whether the party seeking custody, or any member of that party's household, has committed certain types of crimes (referred to as the enumerated defenses).   The court could require a psychological evaluation or even deny custody.

Prior to filing for custody or engaging in custody litigation, you should research whether the parents, or anyone living in either parent's household, or anyone who has frequent contact with the children (boyfriend, neighbor, girlfriend, stepparent) has a criminal record.  You can search Pennsylvania criminal record histories here.

Certain counties require that anyone file for custody submit an affidavit to advise the court whether anyone involved in the case has committed one of the enumerated offenses.  Chester County, Pennsylvania has developed their own form, which you can access here.  Other Pennsylvania counties, including Montgomery County, Pennsylvania, will soon require similar forms.  If anyone involved in the case has lived in another state, you should also perform a records check in that state.

Having committed one of these offenses does not automatically mean that you will be denied custody.  For example, a Driving While Intoxicated conviction from twenty (20) years ago will probably not affect your case as long as there have been no recent alcohol related problems.  On the other hand, a recent assault or drug charge will usually result in supervised visitation, at least until the court can assess whether that person is a danger to the child.

While courts are still working out the kinks in this legislation, do yourself a favor and investigate everyone's criminal background now.  If someone needs counselling or extra safeguards, implement those immediately.  The top priority is the best interests, safety and well-being of the children.

Texts, emails, facebook, OH MY! How can I safely communicate with my ex?

I just learned about a new website that seems like a great tool for separated and divorce parents to use to communicate with each other.

Switching back and forth between texts, email and phone calls can result in miscommunication and chaos in separated families.  The other parent can claim they "never got the email" or did "not see the text."  Additionally, some parents use the communication to harass and malign the other parent, rather than just talk about the kids.

Enter talking parents.com, a website that is a one stop shop, free replacement for texts, email and other electronic messages.  Once a parent enters something, it cannot be changed or erased.  The system keeps a log of all communications ---- which encourages both parents to act civilly.  It also prevents repetitive messages and holds both parents accountable.

Although the service is free -- if you need a certified transcript of all of the communications for court - you can purchase it directly from the site.  You can view a sample record here.

Help! My spouse is spending all of our money! Will I get this back in a divorce?

Courts can sometimes conclude that dissipation has occurred when one spouse squanders marital money for his or her own benefit at a time when that spouse knows the marriage will likely end in divorce.  However, the issue depends on the unique facts and circumstances of each case.  During equitable distribution in New Jersey, the Court is required to consider the “contribution of each party to the acquisition, dissipation, preservation, depreciation or appreciation in the amount or value of the marital property.” N.J.S.A. 2A:34-23.li.  Although dissipation was not defined by the New Jersey legislature, other state courts with similar statutes have defined dissipation.  Below are a few case summaries that highlight the varying views of different state courts.

For example, in Illinois, the Appellate Court said dissipation occurs when “a spouse uses marital property for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage relationship was in serious jeopardy.” Head v. Head, 168 Ill.App.3d 697 (1998). The Illinois court went on to further explain that whether conduct constitutes dissipation depends on the facts and circumstances of the particular case. Most jurisdictions agree that each case can only be decided on the specific facts and circumstances brought before the court.

Although most courts have uniformly held that one spouse’s dissipation of marital property is a factor to be considered during equitable distribution, courts are less uniform when addressing the issue of whether the purpose of the expenditure of marital funds amounts to dissipation under the given facts and circumstances. Thus, courts have considered a variety of factors including, but not limited to: 

(1) the proximity of the expenditure to the parties’ separation; (2) whether the expenditure was typical of expenditures made by the parties prior to the breakdown of the marriage; (3) whether the expenditure benefitted the “joint” marital enterprise or was for the benefit of one spouse to the exclusion of the other; and (4) the need for, and amount of, the expenditure.

Kothari v. Kothari, 255 N.J.Super 500, 507 (1992). The question the courts must ultimately look at it is whether the spouse spent those assets with the intent of diminishing the other spouse’s share of the marital estate. In Kothari, the expenditures made by Husband were all during a period of a few years when he repeatedly filed for divorce in different states and even in India. The expenditures served only Husband’s interests in that the payments were all made for the care and upkeep of Husband’s parents. Therefore, the expenditures diverted money from away from Wife’s share of the marital assets and were considered a dissipation. The trial court properly considered the money for equitable distribution.

In Finan, the Supreme Court of Connecticut was asked to determine whether transactions that occurred prior to the physical separation of spouses could constitute dissipation of marital assets for purposes of equitable distribution. Finan v. Finan, 287 Conn. 491 (2008). The Supreme Court of Connecticut determined that a majority of their sister states’ trial courts allowed consideration of a spouse’s dissipation of marital assets that occurred prior to the spouse’s physical separation when allocating assets to each spouse. However, several states that allow courts to recognize pre-separation dissipation say that the dissipation must occur either in contemplation of divorce or separation or when the marriage was undergoing an irretrievable breakdown. The Connecticut Supreme Court also advised trial courts to remain aware of the fact that the removal of assets from the marital estate is not limited to after the date of separation or after a complete breakdown of the marriage. As long as the trial court finds that the spouse removed the assets from the marital estate while contemplating divorce or if the trial court finds that the marriage was irretrievably broken, then the removal is dissipation and the amount of assets removed from the marital estate can be considered for equitable distribution.

In Gruver, the Pennsylvania Superior Court did not disturb the master’s and trial court’s findings that Husband dissipated marital assets when he refused to file a joint tax return for the final two years Husband and Wife were legally married. Gruver v. Gruver, 372 Pa.Super. 194 (1988). The refusal to file jointly resulted in increased tax liability for both parties. Therefore, Husband was charged to the extent of the increased tax liability during equitable distribution.

In Goldman v. Goldman, the New Jersey Appellate Court decided that Husband’s use of marital assets post-separation did not lead to the conclusion that all of Husband’s use of marital funds was dissipation. Goldman v. Goldman, 275 N.J.Super. 452/N.J.Super. 1977).  Furthermore, the Appellate Court upheld the trial court’s decision that the transfer of marital funds into Husband’s failing business was not in violation of a court order barring the parties from alienating or encumbering any of the marital assets.

In Grunfeld v. Grunfeld, the New York Appellate Court reviewed the trial court’s decision that Husband’s aggressive trading in commodities and securities during the marriage was not wasteful dissipation of assets. Grunfeld v. Grunfeld, A.D.2d 12 (1999). The trial judge correctly reasoned that Husband’s original allocation of funds and aggressive trading was reasonable and that he had a good faith belief in the profitability of the type of trading he was engaged in. The New York Appellate Court reasoned that Wife did not dispute the greater losses that Husband suffered in standard investments; therefore, that the losses Husband suffered in the commodities trading  were properly treated as marital debt.

In Diament v. Diament, Wife withdrew $300,000.00 from a jointly held Vanguard account and deposited the money in another bank. Diament v. Diament, 816 A.2d 256 (Pa.Super.Ct. 2003). When Wife was asked by Vanguard to return the withdrawal, she was unable to account for $19,000.00. Vanguard reimbursed the other bank for the $19,000.00 and Husband argued he was entitled to a $38,000.00 reduction in the marital estate. The trial court correctly reduced the marital estate by only $19,000.00 because it would amount to double-dipping. The Pennsylvania Appellate court held that the trial court properly charged Wife for the $19,000.00 when distributing the marital assets.

Even if you believe your spouse dissipated assets, a court may not agree.  Every case requires a separate analysis.  Additionally, and unfortunately, different judges can reach different results.  If you have questions or concerns about the dissipation of marital assets before or after separation, you should contact an attorney.

Happy Memorial Day

Land of the free, because of the brave.

In New Jersey, if you have high student loan payments, can you get a break on child support?

In a New Jersey Superior Court case the court was asked to consider whether the large student loan debt of a parent should be considered when determining whether to alter a guideline-based child support award. Lozner v. Lozner, 388 N.J. Super. 471 (N.J.Super. 2006).

Mother and Father were married in 1992 and had a son in 1995. The parties finalized their divorce in 2000. Pursuant to the Property Settlement Agreement, Father, who was in law school at the time of the divorce, was required to pay child support in the amount of $98.00 per month. Father acquired almost $240,000.00 in student loan debt for college and law school, and he had almost $50,000.00 in credit card debt, which he claimed was incurred for educational expenses. Father graduated from law school in 2002 and obtained employment immediately at a prestigious law firm in New York. In 2004, Father’s annual base salary was $135,000.00. Father was also awarded bonuses each year ranging from $4,000.00 to $17,500.00. Mother worked at a travel agency and earned approximately $30,000.00 per year.

In 2004, Mother requested an increase in child support based on the substantial increase in Father’s earnings. Father argued that Mother was underemployed and, due to his large student loan debt which required payments of $2,500.00 per month, his child support should not be increased over the $500.00 per month he was voluntarily paying. The trial judge set Father’s monthly support at $746.82 per month.

On appeal, Mother argued that the child support award was too low and that the judge should not have considered all of Father’s educational expenses to reduce the guideline amount. Father argued that the judge should have reduced the amount of child support further by taking into consideration the $580.00 per week Father paid in student loan payments.

When determining child support obligations, courts cannot disregard large student loan debt because parents may be discouraged from financing further education for themselves, which could prove harmful to the child. If the child support is reduced to accommodate a parent’s significant student loan debt, a child would be deprived of any benefit that may have come from the parent’s increased earning power, because the child may be emancipated before the loan is discharged.

Instead, a court may deviate from the child support guidelines only when good cause demonstrates that the deviation would be appropriate. Educational debt incurred to improve earning capacity is one of the factors a court may consider in adjusting child support. The Appellate Court held that substantial loan debt constituted a factor that should be considered when deciding if a deviation from the child support guidelines would be appropriate. It is only considered, however, when the student loan debt was incurred with the goal of improving the parent’s earning capacity.

Credit card debt acquired to maintain a comfortable lifestyle while in school is not the equivalent of student loan debt. Therefore, on remand, the trial court was required to exclude debt that Father acquired that was not reasonably and necessarily incurred to further education and enhance earning capability. Additionally, the debt incurred must not be extreme in relation to the parent’s expected economic benefit and the trial court was required to consider whether Father’s goals could have been achieved without incurring overwhelming debt. It was Father’s burden to provide the court with the loan amount and terms of the loan, as well as the amount of the loans that went directly to educational expenses and amounts that went to non-educational expenses.

A court does not have to allow a parent to use his student loan repayment as a reason to reduce child support payments for the entire time he or she is paying back student loans. The trial court should consider the effect any reduction in child support will have on the family and the relevant ten factors mentioned in the Alimony and Maintenance statute should be used.  The factors are:
(1) Needs of the child;
(2) Standard of living and economic circumstances of each parent;
(3) All sources of income and assets of each parent;
(4) Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children including the cost of providing child care and the length of time and cost of each parent to obtain training or experience for appropriate employment;
(5) Need and capacity of the child for education, including higher education;
(6) Age and health of the child and each parent;
(7) Income, assets and earning ability of the child;
(8) Responsibility of the parents for the court-ordered support of others;
(9) Reasonable debts and liabilities of each child and parent; and
(10) Any other factors the court may deem relevant.

N.J.S.A. 2A:34-23(a).

When considering these factors on remand, the Appellate Court required that the trial court should try to fairly balance the needs of Father and child. The best interest of the child, however, is the most important factor when determining the child support award.

If you have questions or concerns about a child support award or how student loan debt might impact a child support award, you should contact an attorney.

If your spouse is accused of a crime, can the prosecution force you to testify? It depends!

In a 2012 opinion, the New Jersey Supreme Court examined the issue of whether or not the spousal privilege could be pierced when Wife became involved in her Husband’s criminal investigation. State v. James J. Mauti, 208 N.J. 519 (2012).

Husband is a physician. In 2006, before the marriage of Husband and Wife, a woman named Joanne worked in Husband’s office performing various administrative duties. Joanne’s older sister, Wife, had begun dating Husband at this time. In December 2006, Joanne gave a statement to police that Husband had drugged her and raped her in his office while she was there for treatment. After Wife was told of the incident, she moved out of the house she shared with Husband and began investigating the matter further by collecting items from Husband’s office without Husband’s knowledge. After a week of not being able to find any substantial proof of the incident Joanne described, Wife moved back in with Husband.

The State subpoenaed Wife two times to testify before a grand jury, once in December 2006 and once in April 2007. Both times Wife testified occurred before Husband and Wife were married.

In July 2007, Husband and Wife announced their engagement and scheduled their wedding for October 2007. The State filed a criminal complaint against Husband charging him with first-degree aggravated rape in August 2007 and, upon learning of the impending marriage, filed an application to enjoin Husband and Wife from marrying until the criminal case was resolved. The State’s application to enjoin the marriage was denied because there was no proof it was a “sham marriage.” The day after Husband and Wife were married, Wife’s attorney informed the State that Wife would be invoking spousal privilege pursuant to N.J.R.E. 501(2) for any future proceedings against Husband and would be seeking to preclude the State from using Wife’s grand jury testimony in future proceedings.

Husband was indicted in November 2007 and in June 2008, the State filed a motion to compel Wife’s testimony as a material witness. In January 2010, the trial court granted the motion to compel Wife’s testimony holding that spousal privilege is not absolute but subject to the test set forth in In re Kozlov, 79 N.J. 232 (1979). The Appellate Division reversed the trial court’s holding and the State appealed.

The State’s main argument was that because Wife began investigating the matter herself she waived the spousal privilege and, therefore, the State can show that the test in Kozlov was met and can pierce the spousal privilege.

At common law and under the New Jersey Rules of Evidence there are a number of recognized privileges. N.J.R.E. 500. The privileges protect relationships that society deems too important to jeopardize so society is willing to endure some sacrifice of sources of facts in order to protect those relationships. Under the current rules of evidence, there are two recognized marital privileges: (1) confidential communications privilege, and (2) spousal privilege. 

The first privilege, the confidential communications privilege, states that neither spouse will disclose confidential communications made between spouses unless both consent to the disclosure of the communication or unless the communication is relevant to a criminal proceeding where the spouse or a child of a spouse is a victim of the other spouse. N.J.R.E. 509. However, communications made before the parties married are not protected. Only confidential communications made during the marriage will be protected. Communications between spouses are protected even after the parties divorce.

The second privilege, spousal privilege, states that a spouse of the accused in a criminal action shall not testify except to prove the fact of marriage unless the spouse consents or the accused is charged with an offense against the spouse or partner or a child of the accused or the spouse. N.J.R.E. 501(2). Unlike the confidential communications privilege, the spousal privilege is not limited to confidential marital exchanges.  All testimony is barred under this privilege except testimony as to the fact of marriage.

The Supreme Court of New Jersey recognized that privileges are not absolute and can yield to competing legal principles. However, if there is a privilege, it is the obligation of the defense to prove to the trial judge, by a preponderance of the evidence, that there is a reasonable probability that the information sought is material and relevant to the defense, it could not be obtained from any less intrusive source and that the defendant had a legitimate need for that evidence. This does not create a balancing test so that any privilege can be pierced. There are only two ways the “need for the evidence” part of the test can be satisfied: (1) where a constitutional right is at stake, or (2) where a party has explicitly or implicitly waived the privilege.

Waiver can only occur when it is exercised by a person who holds the privilege. In this case, Wife was not the holder of the privilege at the time of her investigations and during her testimony before the grand juries because Husband and Wife were not married at that point in time. Therefore, Wife could not have waived the privilege by investigating because she was not a spouse. Furthermore, the Supreme Court found that there were less intrusive ways for the State to obtain the information it was looking for since Wife interacted with and showed numerous people what she had gathered in investigating her sister’s accusation against Husband.

If you have questions about spousal privileges, you should contact an attorney.

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Are 700 emails considered harassment? It depends.

In the New Jersey case E.L. v. R.L.M., Mother was granted a final restraining order (“FRO”) by the trial court against Father after he had sent her numerous emails regarding their children. E.L. v. R.L.M., 2012 WL 1948607 (2012). In this unpublished opinion, and, therefore, only to be used to assist practitioners, the New Jersey Appellate Court was asked to decide if Mother had established that Father sent the emails with the purposeful intent to harass her.

Father and Mother were married in 1996, divorced in 2008 and had three children together during the marriage. Trouble between Mother and Father arose in April 2011 when Mother refused to give Father permission to take the children on vacation to Canada with Father’s family. Mother and Father’s parenting coordinator advised Mother to allow the children to go with Father. Although Mother eventually conceded, she never executed the paperwork necessary for the children to obtain passports. Father had to ask the parenting coordinator to intervene and ask Mother to sign the paperwork so that the children could obtain passports.

In July 2011, Mother obtained a temporary restraining order (“TRO”) against Father after alleging that Father had contacted her 700 times in the past three years after the parenting coordinator told Father to limit contact with Mother to once a week. The trial court heard testimony from Mother and Father in July 2011 and decided that Mother was credible and concluded that Father’s bombardment of emails to Mother had been done with the purpose to cause annoyance and alarm, thereby constituting harassment. The trial court entered an FRO to protect Mother because the court found that Father had engaged in conduct that constituted a predicate act under the Prevention of Domestic Violence Act.

The Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, states that a victim of domestic violence may file a complaint alleging the commission of an act of domestic violence and, when necessary, obtain a TRO. A TRO is issued before the court will grant an FRO. The Appellate Court previously had given a two-step process for determining whether domestic violence sufficient for an FRO had been demonstrated. First, the court must determine whether the accuser has proven, by a preponderance of the evidence, that one or more of the predicate acts has occurred. The court must consider this evidence in light of whether there was a history of domestic violence. Second, if the court finds that the predicate act occurred, the court must determine if a restraining order should be entered. In order to enter an FRO, the court needs to determine whether a restraining order is necessary after evaluating the factors in N.J.S.A. 2C:25-29a(1) to -29a(6). The factors the court considers are: (1) previous history of domestic violence between Mother and Father; (2) existence of immediate danger; (3) financial circumstances of Mother and Father; (4) best interests of the victim and any child involved; (5) the protection of victim’s safety when determining custody and parenting time; and (6) the existence of an order of protection from another jurisdiction.

Here, the Appellate Court first looked at whether Mother demonstrated by a preponderance of the evidence that Father committed a predicate act of harassment by sending Mother numerous emails regarding the children. Although Father’s emails were voluminous, there was no evidence presented that Father intended them to be offensive or disturb Mother at inconvenient hours. Thus, the Appellate court had to determine whether the emails were sent “with the purpose to harass” Mother by causing her “annoyance or alarm.” N.J.S.A. 2C:33-4a. This type of purposeful conduct is the most difficult to establish, because it requires Mother to prove that Father intended to cause annoyance or alarm by sending her those emails.

The emails that Father sent to Mother concerned their children and, by Mother’s own admission, she declined to answer Father’s emails for a significant period of time. Additionally, Mother and Father’s parenting coordinator recommended to Mother that the children be allowed to go on the trip to Canada with Father. Mother’s refusal to allow the children to go on the trip created a substantial delay in the ability for Father to obtain the children’s passports. Viewing the evidence in a light most favorable to Mother, the Appellate court found insufficient evidence to support the inference that Father sent the emails with the purpose to harass Mother by causing her annoyance and alarm. To the contrary, Father sent the emails so that he could obtain the children’s passports for the trip in a timely fashion.

If the parents are involved in a three way sexual relationship, can they lose custody of their children?

In a 2012 Pennsylvania custody case, V.B. and C.B. v. J.E.B. and C.C., 2012 PA Super 200, the Superior Court of Pennsylvania was faced with the question of whether or not the trial court was correct in awarding legal and physical custody of two minor children to the grandparents instead of the biological parents.

Mother and Father were never married. The children were born out of the polyamorous relationship Father had with Mother and Mother’s Husband. Father lived with Mother and her Husband in a home in Bethlehem, Pennsylvania with the two children. In 2007, Mother, Husband and Father opened their home to Stepmother, the subsequent wife of Father. In 2010, Father and Stepmother moved into an apartment of their own but later divorced. Mother divorced Husband and is currently in a monogamous relationship with another individual.

After the four-way polyamorous relationship ended, Mother and Father agreed to a shared custody arrangement with Maternal Grandparents. Mother and Father shared legal custody and rotated periods of primary physical custody and remained cordial and successful at co-parenting the children. In February 2011, Grandparents filed a petition to modify the existing custody order and requested that either they or Mother have primary physical custody of the children. Father and Mother each filed a petition requesting that the current shared legal custody arrangement be enforced, but they each requested to have sole physical custody of the minor children.

In April 2011, the trial court ordered Northampton County Children Youth and Families (“CYF”) to conduct a home custody evaluation on Mother’s and Father’s residences, but they never ordered an evaluation of the Grandparent’s home.  At trial, the court accepted an expired foster home license that Grandparents had to justify that their residence was better for the children. The trial court disregarded that fact that CYF found Father’s home was fine for the children.

In December 2011, following a two-day trial, the trial court awarded Grandparents primary physical custody of the minor children and gave Mother and Father two non-consecutive overnights per month. The trial court also granted Grandparents sole legal custody of the children sua sponte (on its own). Father appealed this decision.

At the outset of its decision, the Pennsylvania Superior Court determined that the trial court wrongly injected into its decision morality concerns that the legislature had deemed irrelevant under the Child Custody Act 23 Pa.C.S. §§ 5321-5340.

Father’s main argument was that the trial court ignored the legal principle that there is a rebuttable presumption in favor of birth parents over third-parties in custody disputes. In a custody dispute between biological parents and a third party, parents have a prima facie (true unless proven otherwise) right to custody of the child. Custody will be given to a third party only if that third party can show that the child’s best interest will be removing them from the biological parents custody.

The Pennsylvania Appellate Court determined that the trial court failed to properly apply the statutory presumption that children should be with their biological parents over third parties. The Appellate Court found nothing in the record to justify giving the Grandparents sole legal custody of the minor children. In fact, the trial court stated that both parents and the Grandparents were fully capable of caring for the children. But there was nothing in the record to show that the Grandparents were more capable of caring for the children than Father.

Because the trial court did not identify anything in the certified record showing that Father’s past involvement in a polyamorous relationship harmed the children, the trial court’s implication that Father’s participation meant that he was less capable of taking care of the children was an error. The Appellate Court had previously ruled that a parent’s sexual conduct is not a relevant consideration in custody proceedings, unless it is demonstrated that the conduct has a deleterious effect on the child. Therefore, the trial court erred by basing its decision to award custody to the Grandparents on Father’s past involvement in polyamory without further substantial evidence that Father’s past involvement in polyamory had a harmful effect on the children.

If you have questions about custody or a custody order, you should contact an attorney.