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Mary Jane Leland, Esq.
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Ellis Law Center
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Phone: (732) 409-7777
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The Latest

July 21, 2013

As we know, raising a child is important and expensive.  When two parents divorce, their marital settlement agreement may have a provision that each of the parties will contribute toward their children’s education in proportion to their income and assets when the time comes.  New Jersey is unique in that both parents have an obligation to contribute toward their child’s higher education. 
Child support and higher education are related.  There is an end point where child support is no longer necessary.  Typically, this occurs when the child is considered emancipated.  A court determines a child is emancipated when the child has moved ‘beyond the sphere of parental influence and has obtain an independent status of his or her own.’ 
Although reaching the age of majority (18 in New Jersey) creates a prima facie case for emancipation, enrollment in college often extends the period of time that the non-custodial parent is required to pay child support.   New Jersey courts do not deem a child as being emancipated when the child is attending college (taking 12 credits or more) or trade school.  However, the custodial parent must include the non-custodial (NC) parent in the selection process, advise the NC parent as to costs, and allow the NC parent to fully participate.   If the non-custodial parent is excluded from participating in the selection process, his or her obligation to pay higher education costs may be discontinued.
The Appellate Division in Moss v. Nedas terminated a non-custodial father’s obligation to pay toward college because of the lack of communication between Mom and Dad.  In Moss, the parties agreed to share the cost of their daughter’s college education in proportion to their ability to contribute.  In 1994, the father was ordered to pay $12,000 of the total ($27,000) for the parties’ daughter to attend Sarah Lawrence College.  Unbeknownst to the court and the father at the time of hearing, the daughter applied to and was accepted to yet another college, Skidmore, just prior to the Court’s order.  When the father did not pay the new school, the mother sought an order compelling payment by the father.  Upon review of the case, the Appellate Division found a total lack of communication between the parties regarding the daughter’s education, and found the custodial parent/Mom was viewing Dad as ‘a wallet.’  Despite prior court orders clearly requiring Mom to communicate with Dad regarding education progress and plans, she never sought his opinion or included him in the process.  In addition, there was no meaningful relationship between the father and daughter.  Given the fact that both the mother and the daughter excluded Dad from the process, the Court ruled that it was no longer appropriate for Dad to share the cost.
The Family Part of the Superior Court in Ocean County expanded upon the issue of paying higher education costs in Van Brunt v. Van Brunt by terminating a parent’s obligation to pay child support for failing to provide proof of higher education.  In Van Brunt, the two divorced parents expressly agreed to consult with each other regarding their child’s higher education and agreed their child would remain unemancipated if the child continued to attend four years of college.  The defendant/father sought verification of his daughter’s full-time collegiate status three times within one year and received court orders requiring production of a) a list of all courses taken by their daughter, b) copies of her report cards, and c) verification of her enrollment. Without production of the requested documents, the court would consider the child emancipated as of the date the defendant filed his first motion seeking verification.  On defendant’s third application for requested proof, plaintiff specifically objected to production of her daughter’s records alleging their daughter has a right to privacy in her records pursuant to the Federal Education Rights and Privacy Act (FERPA).  Although students have certain privacy rights, the Court held FERPA couldn’t be used as a sword to block the father’s right to verify the daughter’s ongoing collegiate status.  The basis for the daughter’s unemancipated status is contingent on the daughter’s full-time status as a college student.  Should the daughter not be able or willing to produce specific documents that demonstrate full-time enrollment, then she should be emancipated accordingly.
Keep in mind that most matters in family law like the cases mentioned here are very fact-sensitive. 


February 21, 2013

 On February 4, 2013, the Superior Court decided Benjamin v. Benjamin and held that having a guaranteed job in another state is not a mandatory prerequisite for moving your children to another state.  Rather, the likelihood that the custodial parent can provide children with a financially stable household in the new state is a just one relevant factor in determining whether the proposed relocation is reasonable or inimical to the child’s interests. 
The Court granted the custodial parent’s request to move the children out of state and held that there is no express, absolute requirement for a relocating custodial parent to have a specific job or promise of guaranteed employment in the new state.  Rather, the criteria set forth in Baures v. Lewis is the appropriate standard for considering a removal action. It is highly impractical for a custodial parent to obtain a concrete job offer from an out-of state employer when the parent does not know if and when the approved relocation will occur. Given the inherent delays in the litigation process, the most practical and relevant inquiry is whether the custodial parent has a reasonable plan for providing for the child in the new state.
A parent may choose to relocate to another state because he/she does not presently have a well-paying job or a satisfactory degree of economic stability. Sometimes moves are beneficial when the cost of living in the new location is lower, family is available to assist with day care, housing is more abundantly available, less competition is in a particular job market, or re-education is desired to enter an entirely new career.  While there is no convenient crystal ball to know whether it is wise or unwise to leave the security of employment, the Court recognized that individuals generally have the freedom and right to make tough choices, take risks, and pursue paths to potential prosperity and happiness. When a child is involved, the child’s welfare always must be considered in those decisions. 

January 26, 2013

A teenaged child’s preference to change residential custody is but one factor that a Court must consider when transferring custody to the non-custodial parent.  

On January 17, 2013, the Appellate Division, in Atherholt v. Hunter, reiterated a well-settled principal that New Jersey Courts are required to hold a plenary hearing (mini-trial) before changing custody and must analyze the factors set forth in N.J.S.A. 9:2-4, even when an older child expresses a desire to live with the other parent.  

The case came to the Appellate Division when the mother, Mary Atherholt, appealed a Family Part Order that granted her ex-husband, Michael Hunter, residential custody of their fourteen (14) year old son M.H. after an interview with the child, but without a plenary hearing. The Family Part judge found several factors that justified granting the Father custody, including but not limited to: M.H.’s preference to live with his father, the higher quality of educational facilities accessible from the father’s residence, and the inherent value of a father-son relationship during adolescence, which M.H. was just beginning to enter at the time. This marked the first success after a string of failed efforts by the Father to obtain residential custody of his son.  A motion filed earlier by the Father was denied without prejudice in a February 2010 Order, with the parties being ordered to engage in mediation. Upon failure of the mediation the Father filed yet another motion, which was denied in September 2010 by a different judge. At that time a CNA* report recommended that the Father enjoy increased parenting time with M.H., but with the Mother retaining primary custody. 

After two in camera interviews, the judge concluded that a change of circumstances had taken place, based in large part on the child’s preferences, and granted the Father residential custody, provoking an appeal. The Family Part Order was reversed by the Appellate Division on the basis that the judge did not hold a plenary hearing when making this decision, to determine the best interests of the child, and that he did not consider each of the factors outlined in N.J.S.A. 9:2-4 (“safety, happiness, physical, mental and moral welfare.") that would culminate in providing the justification for a change in custody. 

The appellate division released another opinion on January 23, 2012, again reiterating the necessity of a plenary hearing.  In M.I. v. B.I., the trial court conducted an in camera interview of the parties’ fifteen (15) year old daughter, who the court found to be “very sophisticated” and who expressed a desire to live with her father, and indicated her concerns for her mother’s parenting style. The parties have two children.  The trial court denied the father’s application for a transfer of custody, without holding a plenary hearing. The trial court expressed concerns about splitting up the two children. The Appellate Division held, that the “views of Amy, then age fifteen, were entitled to significant, albeit not controlling, weight.” The Appellate Division was satisfied that the father had made a prima facie case of  changed circumstances,  “specifically the preferences of a “very sophisticated” fifteen-year-old girl who expressed a preference for living with one parent and concerns about the parenting style of her then parent of primary residence.” Since the Appellate Division did not find the record to contain sufficient factual support for the judge’s denial of the father’s application, the panel remanded the matter for further consideration, and a plenary if the issues remain contested.

* The Custody Neutral Assessment Program (CNA) is one option to help resolve custody issues when the parties do not agree and when mediation has failed.  It involves a mental health professional meeting with the parties and advising the Court of the concerns and considerations.


Recent Posts

July 21, 2013

As we know, raising a child is important and expensive.  When two parents divorce, their marital settlement agreement may...

February 21, 2013

 On February 4, 2013, the Superior Court decided Benjamin v. Benjamin and held that having a guaranteed job in another state is not...

January 26, 2013

A teenaged child’s preference to change residential custody is but one factor that a Court must consider when...

May 3, 2012

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