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Split Days Are A Thing

I showed up to the play date with one kid.  My friend was shocked.  Where was my other kid? I guess the concept of having a split day isn’t something people are too familiar with.  Many parents take one kid out for a special activity.  Many kids go out with their friends or family without necessarily taking their sibling along.  But once you start breaking down their schedules into parenting time, people tend to be far more hungry for that time. 

Early on in the divorce process I worried about losing time with my kids.  I worried about missing out on huge memories and all of their little milestones.  I worried about all of it.  As the kids got older though, I noticed that there were a lot of things we were all missing out on.  A little one on one time started to become something to look forward to.   

Our kids are their own people.  They have their own hobbies, interests, all of it.  And they have an amazing ability to interrupt each other and a strong desire to steer conversations and play in their own direction.  It became apparent that they needed one on one time. 

The split day was born.  It was such a raging success from the very first one that we knew we had to work this into our parenting schedule.  It made it so much more clear too that this wasn’t about my days or about my exes days.  All of this is about the kids days.   

Birthday parties are much easier to navigate without an extra sibling.  Bringing a 4 year old on a 4 hour hike is surprisingly doable when it’s one 4 year old instead of 2.  A trip to the museum became a truly interactive learning event rather than a push-me pull-me down a spiral of exhaustion.  The kids missed each other and were happy to be reunited at the end of the day.  They were eager to share their experiences.  They were thrilled to have had one of us to themselves.  So yeah, split days are a thing.  And we like them. 

“Mama, you don’t have balls?”

            When a 5 year old transgender child started asking about eggs (in the context of mammals), their parent knew she was in for an interesting discussion. In response to the “do you have eggs” question posed by the child, their parent (assigned female at birth) informed them that she does have ovaries with eggs in them.  When the child asked if she also has eggs, the parent replied that most people do not have both eggs and testicles.  To that, the surprised child said “WAIT!  Mama, you don’t have balls?” 

            This conversation and this child’s surprise highlights the idea that children are flexible in thinking and if not taught a specific version of gender role concepts and expectations of gender conformity, a child has the potential to accept the world around them and to develop naturally without constraints in what is considered common social norms.  Parental modeling and teachings have a significant influence on children’s own concepts of self (Bosacki, 2014).  

Gender Development

            If someone has never thought about their gender identity, it is probably because their gender identity matches the sex they were assigned at birth.  A doctor makes a determination based upon genitals or chromosomes at the time of birth as to whether to mark the “female” checkbox or the “male” checkbox at the time of birth, and while that designation will create an individual’s sex assigned at birth, that momentary designation does not determine a person’s actual gender identity (Winter, 2015).

            Gender, as compared with biological sex assigned at birth, is a person’s psychological identification as either male, female or non-binary. Transgender is the term used to describe an individual whose biological sex assigned at birth does not match their gender identity (Goldstein, Corneil, & Greene, 2017).   Research shows that individuals start having recognition of gender differences in their perceptions in infancy.  These are based upon social constructs as to what is embedded into society as male or female gender-role identifiers (Dunham, Baron, Banaji, 2016).

Gender-related self-identification of a child starts at age 2-3 years old.  By that time, it is common for parents to have immersed their child into gender stereotyping simply by way of clothing and toy choices thus creating an environment where a child is encouraged to conform to gender stereotyping associated with their sex assigned at birth rather than an innate development of gender identity (Winters, 2017).  Their environment can significantly affect initial concepts of gender identity based upon the social feedback (both positive and negative) associated with choices and preferences a child shows in their environment such as color and play choices.

Within cognitive theories, children are viewed as internally motivated who construct their own concepts of gender.  Those concepts then morph into gender conformity which children see as a way to conquer the concept of gender.  Also, within this theory, children (ages 2 through 6 years old) may have phases of awareness, followed by rigidity, and then flexibility (Halim et al., 2014) associated with their gender identity based largely in gender expression.  Utilizing clothing as a tool, children can use their learned gender stereotyping to express their own internalized gender concepts because the rigidity allows them to try to conquer this rather complex concept (Halim et al., 2014). 

Within a concept of social learning theory, Albert Bandura opined that humans are neither entirely able to act inherently independently nor entirely controlled by external forces and are, instead, able to develop self-regulation to a degree that they have control over their own actions (Wulfert, 2018).  Self-regulation is one’s ability to plan behavior but then modify based upon situational need to adapt (Montroy et al., 2016).  This social theory as applied to gender development would lend itself to the idea that children are able to recognize their own gender identity even if they are exposed to social modeling and gender stereotyping. 

There is, undoubtedly, a complicated relationship between sex assigned at birth and gender identity.  Social constructs have a significant influence over defining gender roles and expectations and privileges associated with a particular gender designation. As such, a child’s freedom to discovery gender identity that is innate and self-determined lies significant with those adults and peers creating the environment and modeling roles, gendered or otherwise, for those children.

References 

Bosacki, S. (2014).  A Longitudinal Study of Children’s Theory of Mind, Self-Concept, and Gender-Role Orientation.  International Electronic Journal of Elementary Education, 6(2), 213-228. 

Dunham, Y., Baron, A., & Banaji, M. (2016).  The development of implicit gender attitudes.  Developmental Science, 19(5), 781-789. 

Goldstein, Z., Corneil, T.A., & Greene, D. (2017).  When Gender Identity Doesn’t Equal Sex Recorded at Birth: The Role of Laboratory in Providing Effective Healthcare to the Transgender Community.  Clinical Chemistry, 63(8), 1342-1352. 

Halim, M., Ruble, D., Tamis-LeMonda, C., Zosuls, K., Lurye, L., & Greulich, F. (2014).  Pink frilly dresses and the avoidance of all things “girly”: Children’s appearance rigidity and cognitive theories of gender development.  Developmental Psychology, 50(4), 1091-1101.

Montroy, J., Bowles, R., Skibbe, L., McClelland, M., & Morrison, F. (2016).  The development of self-regulation across early childhood.  Developmental Psychology, 52(11), 1744-1762.

Winter, G. (2015).  Determining Gender: a social construct? Community Practitioner, 88(2), 15-17.

Wulfert, E. (2018).  Social learning according to Albert Bandura.  Salem Press Encyclopedia of Health.



Scott v. Hill: Social Security Retirement Benefits and Child Support Credits

On October 10, 2018, the Appellate Division handed down an unpublished decision in Scott v. Hill, a case that was appealed from Essex County Superior Court, Family Division.

Plaintiff and Defendant were never married, but had a child together in 2000.  In 2015, the Court entered an Order setting Defendant’s child support obligation at $140 per week, plus $10 per week towards his arrears (which were initially $560), to be paid through Probation.  A biennial cost-of-living adjustment was applied to Defendant’s obligation, thereby increasing it to $143 per week in 2017.

Defendant retired in 2015 and began receiving Social Security retirement benefits in the amount of $1,415 per month.  Defendant made an arrangement with the Social Security Administration wherein they would subtract $689 each month from his benefit and send it directly to his son, commencing January 2016.  Additionally, Defendant paid his $153 per week in child support and arrearage obligation through Probation in accordance with the 2015 court order.

In or around May 2017, Defendant became unable to make the court-ordered payments through Probation and ceased doing so.  However, the child continued receiving Defendant’s Retirement benefit each month.  Defendant filed a motion asking the court to modify his child support obligation and to give him a credit towards the arrears on record with Probation.

The trial court denied Defendant’s request for a credit for the Social Security retirement benefits paid to the child prior to the date Plaintiff filed his motion, reasoning that N.J.S.A. 2A:17-56.23(a) barred retroactive modification of arrears.  The trial court found that Defendant was only entitled to credit for Social Security retirement funds that the child received after his motion was filed.

On Appeal, Defendant argued that he should get credit for the Social Security retirement payments as well as a credit against future obligations for any amount of the Social Security retirement payments that exceeded the court-ordered obligation.

The Appellate Court recounted the holding in Diehl v. Diehl, where the Court determined that a parent paying child support is entitled to a credit against child support arrears that accumulated contemporaneously with Social Security disability benefits paid to a child.  389 N.J. Super. 443 (App. Div. 2006).  The court in Diehl went on to say that the benefits paid to a child that exceed the court-ordered child support obligation cannot be fully credited against arrears or future support obligations because it is considered a gratuity to the child.  The Court clarified that social security retirement benefits are treated the same as social security disability benefits in the realm of calculating a child support obligation.

The Appellate Division ultimately ruled that the trial court erred in determining that N.J.S.A. 2A:17-56.23(a) barred retroactive credit for Social Security retirement benefits received prior to Defendant filing his motion, and remanded the case to the trial court for calculation of an appropriate credit.  The Court also held that he was not entitled to credit for social security the child received while Defendant was paying child support through Probation, nor was Defendant entitled to a credit towards future obligation, as both scenarios constituted “gratuities” for the child as described in Diehl.

K.D.E. v. J.E.: A Lesson in How Vague Language in an MSA Can Cost You Money

On October 12, 2018, the Appellate Division handed down an unpublished decision in K.D.E. v. J.E., a post-judgment matrimonial matter in Monmouth County. 

The parties married in 1988, had two children, and divorced in June 2009.  The parties negotiated a Marital Settlement Agreement (MSA) which was incorporated into their Judgment of Divorce.  At the time of the divorce, both parties resided in the marital residence.  The MSA allowed for Plaintiff and the children to remain in the marital residence until it sold.  It also allowed Defendant to remain in the home until she found alternate housing approved by her GAL. 

Defendant moved out of the marital residence approximately one month after the parties signed the MSA.  Plaintiff and the children ended up living in the marital residence for six years thereafter.  Plaintiff later claimed that he tried to sell the home but that Defendant refused to cooperate; however, Plaintiff did not file a motion in those six years.  Finally, the parties agreed to list the home for sale in 2015 and the house sold on November 30, 2015.   

The parties were unable to agree on how the sale proceeds should be distributed, so Plaintiff filed a motion seeking certain credits, including a credit for the mortgage principal he had paid down in the six years following the divorce.  Defendant opposed Plaintiff’s motion and pointed out that Plaintiff received the benefit of the mortgage deduction on his taxes as well as the benefit of not having to spend more money to buy/rent a new residence.  The trial court did not hold a plenary hearing on the matter, but instead, issued a written decision based upon the conflicting certifications filed by the parties.  The trial court granted Plaintiff’s request and commented that the parties did not anticipate the lengthy delay in the sale of the home and that Defendant was the sole cause of the delay. The decision did not address Defendant’s arguments that Plaintiff reaped tax benefits and saved money by not moving.  Defendant appealed. 

The Appellate Division lamented about the fact that there was no language in the MSA stating that the Plaintiff was supposed to receive credit for reducing the mortgage while remaining in the home, and that the language was ambiguous at best.  The Appellate Division ultimately reversed the trial court’s decision and remanded the case for a plenary hearing to be held as to the issues concerning the proper interpretation of the MSA.  Further the Appellate Division commented that when courts are determining the meaning of matrimonial agreements, they must “discern and implement the common intention of the parties.” Pacifico v. Pacifico, 190 N.J. 258, 266 (2007) but not use extrinsic evidence to rewrite the MSA.  (citing Conway v. 287 Corporate Ctr. Assocs., 187 N.J. 259, 268-70 (2006)).  Ultimately, the Appellate Division reversed and remanded the case for the trial court to hold a plenary hearing to parse out the parties’ conflicting stories and their intentions with respect to their MSA.