Thursday, November 29, 2012

Tips for testifying in court

Testifying in court can be scary and nerve wracking.  Unlike a television show or movie, no one is scripting the questions or the answers, which means that anything can happen.  Here are some tips that will help you through the process.

(1) Influence the listener to like you.  In family court cases, you almost always testify before a judge, rather than a panel of jurors.  That one judge will make the decision in your case.  Make it a bit easier for the judge to make a decision in your favor by being likable.  This does not mean you must laugh or giggle through your testimony. After all, the subject matter that you are discussing merits a serious demeanor.  That said, you should however, appear pleasant, cooperative and non-argumentative.

(2) Sometimes we blink rapidly when we are nervous.  If the judge sees this type of rapid blinking, you may appear nervous and it could affect whether what you say is believable.  A trick that psychologists use -- and no one is quite sure why this works -- is to either touch your index fingers to your thumbs (the A-OK sign) or clench your toes.  These action will prevent you from blinking too much.

(3) Some people have a tendency to talk with their hands.  However, if you are waving your hands around, the judge will be focused on your hands and not what you are saying.  If you simply cannot keep your hands still, make sure they are at least perpendicular to the floor similar to a chopping motion.  That type of posture signifies emphasis and not unnecessary excitement, which will help you appear calmer.

(4) Know your message and keep circling back to that theme whenever you can. To prepare to present your testimony this way, you will need the help of your lawyer.

(5) The court knows that you are testifying to what you think and what you believe. Therefore, your testimony is less effective if you start every sentence with "I think . . .."  or "I believe . . .." Obviously you think it or you would not be saying it. Instead, focus on the substance of your testimony.

(6) Cross-examination is when the other side's lawyer asks you questions regarding your testimony. Often this causes you the most anxiety because the lawyer's job is to make you less believable and to prove a point other than yours.  The best advice on cross-examination is:  if you don't know, then you don't know.  People do not win or lose cases based on the quantity of what they say or whether they knew the answer to every questions.  If you do not know an answer to something, it is much better to simply admit that rather than to make up something or try to guess.  With the help of your lawyer, you can also train to answer the question that you want to answer, instead of not the one that you are asked. However, this is tricky because you do not want the judge to consider you non-responsive or uncooperative.

(7)  Testify like you are talking to your grandmom.  Why?  First of all, if your grandmom is hard of hearing, you will want to speak loudly and clearly.  Too many people mumble through their testimony and, with the natural noise and distractions in the courtroom, the judge cannot hear you.  Additionally, when speaking to your grandmom, you are (or should be) pleasant, non-threatening and likable.  Because these are some of the qualities that would probably help you in a family law matter it is a good demeanor to adopt.

Tuesday, November 27, 2012

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.

Going through a divorce or other domestic relations matter?  Step back and be objective.  Sometimes the fighting becomes overwhelming and parties lose sight of how to obtain the best results.  In the worsts cases, litigants spend more on litigation than the value of their case.

A perfect example of spending more than the issue is worth can be found in this case, where the parties spent over $70,000 in a dispute over $15,000.  The principal of the matter costs real money! Don's let this happen to you.

Monday, November 26, 2012

Keep your new beau away from the other parent

News outlets reported that the fiancee of actress Halle Berry brawled with the father of her child at a custody exchange.  No matter who was the instigator, the fight could have been avoided by simply keeping these two men out of each other's path.  If you must bring your new significant other to a custody exchange, insist that the person stay in the car, out of the way, and completely silent.  Custody exchanges are between the parents and adding someone else to the mix will only make an already anxiety ridden situation more tense.

Sunday, November 25, 2012

When is genetic testing allowed for adult children in New Jersey?

The recent October 2012 Supreme Court of New Jersey decision, D.W. v. R.W., 2012 WL 4795701, looks at the precise standard that must be met in order to compel genetic testing to prove parentage when a presumed father exists. Under New Jersey law, N.J.S.A. 9:17-43(a)(1), the mother’s husband is the presumed father of a child born during the marriage. That presumption can only be overcome by clear and convincing evidence, and, in may cases, genetic testing may be the only persuasive evidence that can overcome the presumption. N.J.S.A. 9:17-43(b), 48(d).

In D.W. v. R.W., after Wife filed a divorce complaint, Husband filed a third-party paternity action seeking to have his former brother-in-law declared the natural father of his 19-year-old child and reimburse him for the expenses related to the child’s upbringing. Both Wife and the former brother-in-law opposed the request for genetic testing. In the lower courts, the application for genetic testing was denied and Husband’s claim was dismissed. Upon review, the New Jersey Supreme Court remanded to the trial court for the entry of an order compelling genetic testing for the reasons discussed below.

Husband and Wife were married in 1979. The child, who was the subject of the paternity action, was the parties’ youngest child and was born in 1987. Wife filed a Complaint for Divorce in 2006. In February 2007, Husband filed an Amended Answer and Counterclaim alleging that Wife concealed that he was not the child’s father. Husband also filed a third-party complaint against his former brother-in-law alleging that the brother-in-law was the child’s father. Husband demanded reimbursement for monies spent raising the child. In May 2007, Husband filed a motion seeking to compel the former brother-in-law and Wife to submit to genetic testing. Additionally, Husband submitted to the court the results of a privately commissioned DNA test that excluded him as the biological father of the child.

The NJ Supreme Court started off its analysis by reviewing the New Jersey Parentage Act (“The Act”), N.J.S.A. 9:17-38, which ensures that children receive the financial support from their parents to which they are entitled. The Act also provides a way for the presumed father to recoup from a child’s biological father the reasonable educational, medical and other related support expenses that were spent  for the child. The Act states that any person seeking reimbursement for expenses can institute a proceeding against the biological father if paternity has been “declared,” “acknowledged,” or “adjudicated” under The Act. N.J.S.A. 9:17-55(a). However, to succeed in this kind of suit, the petitioner must first identify the biological father. 

The issue in this case was to determine how Husband could prove that the child was the biological son of another man when Husband was presumed to be the child’s father. When a parentage action is brought, the most effective method to overcome the presumption is through genetic testing. The Act provides that if the parties cannot reach an agreement concerning parentage and if blood or genetic tests have not been taken, then “the court shall order the child and the parties to submit to blood tests or genetic tests unless a party claims, and . . . the court finds, good cause for not ordering the tests.” N.J.S.A. 9:17-48(d). Therefore, if a party to a paternity action requests genetic testing and submits a sworn statement establishing a reasonable possibility that he is or is not the father, the court must order a genetic test, unless the opposing party presents good cause for not ordering the test. 

Although the best interests of the child usually is the most important factor involved in making decisions for children, courts recognize the gravity and serious impact of these cases. Therefore, courts also must use the eleven “good cause” factors
(1) length of time between the proceeding to terminate parental rights and the time the time the presumed father was placed on notice that he might not be the genetic father; 
(2) length of time during which the presumed father has assumed the role of father of the child; 
(3) facts surrounding the presumed father’s discovery of possible non-paternity; 
(4) nature of the relationship between the child and the presumed father; 
(5) nature of the relationship between the child and any alleged father; 
(6) age of the child; 
(7) degree of physical, mental and emotional harm that may result to the child if presumed paternity is disproved; 
(8) extent to which the passage of time reduces the chances of establishing the paternity of another man and a child-support obligation in favor of the child; 
(9) extent, if any, to which uncertainty of parentage exists in the child’s mind; 
(10) child’s interest in knowing family background, including medical and emotional history; and 
(11) other facts that may affect the equities arising from the disruption of the father-child relationship between the child and the presumed father. 

The party seeking testing also has an interest in the determination of paternity and, in most of these cases, destablization of the child’s life is inevitable. However, if the best interests of the child were the only concern, genetic testing would almost never be ordered to rebut a presumption of paternity because any disruption in the child’s life would be considered not to be in the best interests of the child. The court is required to order genetic testing absent a showing of good cause by son and presumed biological father. 

By the time of the hearing on Husband’s motion for genetic testing, son knew the brother-in-law could be his father and only testing would eliminate that uncertainty. Son had already ended his relationship with Husband and was close to the brother-in-law. Testing would do no additional damage to the family unit that was already destroyed with the revelation that Husband might not be the biological father of son. Additionally, the Acts statute of repose prohibited any action after next year. Additionally, because there is no claim for support as the child is no longer a minor, there is no negative financial impact on the child at issue.

If you have questions regarding genetic testing and claims for parentage, you should contact an attorney.

Written by Allyson Lutley, law clerk at The Law Offices of Linda A. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire, associate attorney.

Saturday, November 24, 2012

Inspiration on a Saturday

"Live so that your friends can defend you but never have to."

- Arnold H. Glasgow

Thursday, November 22, 2012

Happy Thanksgiving!

Hope you get the wish bone and your dreams come true . . . 

Tuesday, November 20, 2012

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.

Obtaining a real estate appraisal for your divorce?  Do your own research first by investigating comparable sales in the area and be ready to analyse the appraisal to determine if reasonable comparable sales were used in the analysis.  If an appraiser uses homes far from your neighborhood, or extremely dissimilar to your house, the conclusions in the appraisal may be incorrect.  Additionally, prepare for your appraisal.  If you recently had work completed on the home that will increase its value yet not be readily apparent (insulation, structural repair, electrical work, etc.), make sure the appraiser understands.  On the flip side, if you are concerned that the appraiser will come in too high, have a list ready of repairs that are needed, especially if the issues will not be readily apparent to the naked eye.

Saturday, November 17, 2012

Inspiration on a Saturday

"A child's life is like a piece of paper on which every person leaves a mark." 

- Chinese Proverb

Thursday, November 15, 2012

Flash Photography: Violation of the Prevention of Domestic Violence Act?

If you see your ex taking flash pictures of you, can you request a restraining order against him or her in New Jersey?

In the 2011 New Jersey case, J.D. v. M.D.F., plaintiff argued that defendant was harassing her in violation of the Prevention of Domestic Violence Act after she saw him taking photographs outside of her home at 2 a.m.. J.D. v. M.D.F., 207 N.J. 458 (2011). The defendant claimed that the reason he was outside of plaintiff’s home taking photographs was to compile evidence that the plaintiff’s new boyfriend was staying at the residence in order to support a motion to transfer custody he was in the process of filing.

At the Final Restraining Order (“FRO”) hearing, the trial court allowed the plaintiff to describe past incidents of abuse that were not part of the original Complaint and denied the defendant the chance to prepare and respond to the allegations not in the original Complaint. The trial court granted the FRO and the appellate division affirmed.

The New Jersey Supreme Court reversed and remanded the case for a rehearing. The Court, citing to N.J.S.A. 2C:25-29b, said that even though the plaintiff presents evidence that meets the definition of harassment, courts must find that relief is necessary to prevent further abuse. Furthermore, it is the obligation of the trial court to consider the testimony and allegations in light of the statutory standards and case law–the victim’s subjective reaction alone is not enough.

With respect to the plaintiff testifying to past acts of abuse that were not in the original complaint, the Court said that allowing that testimony effectively amended the complaint. Therefore, the defendant should have a chance to respond to the allegations. If the defendant did not receive that opportunity, then in effect, the defendant would be denied his due process rights.

With respect to court’s granting a FRO, the two-prong test must be satisfied: a predicate act of domestic violence established by a preponderance of the evidence and, if satisfied, an inquiry into whether restraints are necessary to protect the victim from harm. In this case, the predicate act of violence was not established by a preponderance of the evidence.

If you are thinking of filing a restraining order in New Jersey, or have had one filed against you, you should contact an attorney. 

Written by Allyson Lutley, law clerk at the Law Offices of Linda A. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire, associate attorney.

Tuesday, November 13, 2012

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.

Need a copy of your tax return and your spouse will not give it to you?  No problem -- order it straight from the IRS.  Instructions here.

Saturday, November 10, 2012

Inspiration on a Saturday

"The way I see it, if you want the rainbow, you gotta put up with the rain." 

- Dolly Parton

Thursday, November 08, 2012

Legal Custody vs. Physical Custody in New Jersey

The term “joint custody” is often misleading to people, because they think it means that both parents “share” both time with the child and responsibilities of the child equally. However, in New Jersey joint custody is really two separate things- legal custody and physical custody. For example, parents can have both joint physical and legal custody or one parent can have full legal custody and joint physical custody. There can be many variations and combinations of the two types of custody. True shared parenting arrangements are rare. For true shared parenting to work, the parties have to get along and have the ability to communicate on a regular basis with one another. 

Though each parent’s time with the child is important, the time each parent spends with the child must be analyzed in the context of each parent’s responsibility for the custodial functions and duties normally held by the primary caretaker. The primary caretaker often has the greater physical and emotional role in the child’s life.

Legal custody, which is often shared by both parents after a divorce, gives the authority and responsibility for making ‘major’ decisions regarding the child’s welfare. Although having joint legal custody means that parents should be making these decisions together, when parents are at odds, the court will generally defer to the parent with whom the child primarily resides.

Joint physical custody gives responsibility for ‘minor’ day-to-day decisions and the exertion of continuous physical custody by both parents over a child for significant periods of time. Determining physical custody requires an examination of practical considerations, such as financial status of the parties, proximity of the parent’s respective homes, demands of employment, age and number of children of the parties, and, sometimes, the preference of the children.

Your custody arrangement also impacts child support. Your physical custody arrangement affects the amount of child support you pay to the other parent, or the amount of child support you are receiving from the other parent. It is important to make sure you have a court order determining your custody status in order to calculate the proper amount of child support being paid.

If you have questions about your current custody arrangement, contact an attorney.

Written by Allyson Lutley, law clerk at the Law Offices of Linda A. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire, associate attorney.

Tuesday, November 06, 2012

Helpful Tip Tuesday

Today is Tuesday and every Tuesday we like to post a tip that will help you to handle your legal issues.

Today is Election Day!  Do not forget to vote.

For information on voting in the Philadelphia region, visit the Committee of Seventy.

Visit the Pennsylvania Department of State to view election returns in Pennsylvania.

For information on New Jersey elections, visit the New Jersey Department of State.

Saturday, November 03, 2012

Inspiration on a Saturday

"What would you attempt to do if you knew you could not fail?"

- Dr. Robert Schuller

Thursday, November 01, 2012

Contentious Divorce, Custody and Relocation in New Jersey

In a recent 2012 New Jersey relocation case, Mother asked the court to allow her to relocate from New Jersey to Kansas with her and Father’s two young children. Carmon v. Carmon, 2012 WL 1205809.

Mother and Father had been involved in a contentious marriage, divorce and custody battle beginning with their marriage in 2003. During 2005, the parties entered into their first custody agreement whereby they would have joint legal custody, Mother would be the parent of primary residence (“PPR”) and Father would be the parent of alternative residence (“PAR”). Father was also ordered to pay child support and pendente lite spousal support. The custody agreement also contained Father’s permission to allow Mother to relocate to Kansas with their minor child. In the spring of 2006, Mother gave birth to the couple’s second child. Shortly after, the couple reconciled and Mother moved back to New Jersey. Unfortunately, domestic bliss crumbled and in July 2008, Father filed a complaint for divorce and, one month later, each party filed domestic violence complaints against the other. In September 2008, a Final Restraining Order (“FRO”) was granted to Mother but continued the established joint legal custody with Mother as PPR and Father as PAR. When the FRO was dismissed in January 2009, Father was granted additional parenting time. The parties’ Final Judgment of Divorce established a parenting plan, holiday schedule and, once again, specified that Mother was the PPR and Father was the PAR.

Following the entry of divorce, the parties relationship remained strained and, at times, required police intervention when transferring the children from one parent to the other. In November 2009, Mother filed a request seeking relocation to Kansas and, following a trial, Mother’s request was granted.

Father appealed seeking to overturn the relocation, asking that Mother be required to live in New Jersey and have himself designated as the PPR. 

In New Jersey, when one parent files a request to relocate, the initial question is: what is the existing custody status between the parties? If the parties have a true shared custody arrangement where they each perform an equal role in care-taking, then the court uses the “change-of-custody” test. Under the “change-of-custody” test, the party seeking to relocate must show that the best interests of the child would be better served if the child were to relocate with that parent. However, if one parent serves as the primary care-taker, then the primary care-taker’s request to relocate is evaluated using the two-part test in Baures. Baures v. Lewis, 167 N.J. 91 (2001). Under a Baures analysis, the relocation request will be granted when the “preponderance of the credible evidence demonstrates the custodial parent has a good faith reason for the move and the move will not be inimical to the children’s interests.” Baures, 167 N.J. at 118.

In the trial court’s opinion, the judge noted the extensive history of custody agreements between the parties establishing Mother as the PPR and Father as the PAR. Father was well aware of Mother’s ties to Kansas, as she had returned to the area prior to the birth of the couple’s second child. At trial, Mother testified to her changed and worsened circumstances which provoked her need to relocate. Mother gave numerous good faith reasons for the move, including moving closer to her family, moving back into a home she already owned, and pursuing two pending job offers. The trial judge made note of the fact that Father contributed to Mother’s worsened financial situation by failing to pay her money from the divorce settlement, taking the children out of daycare and failing to uphold other financial responsibilities to their children.

Father argued that the trial court should have used a shared custody analysis, instead of the Baures analysis. The appellate division declined to use a shared custody analysis because the trial judge made it clear that in numerous custody agreements the parties designated Mother as the PPR and Father as the PAR. Thus, there was never true “shared custody.” Furthermore, Father gave the court no evidence that the move would be adverse to the children’s best interests. To establish that a relocation is not in a child’s best interest, a parent must demonstrate more than mere separation or a change in parenting time.  

If you have questions about a possible relocation or current custody arrangement, contact an attorney.

Written by Allyson Lutley, law clerk at the Law Offices of Linda A. Kerns, LLC.  Edited by Elizabeth A. Bokermann, Esquire, associate attorney.