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What is the Right of First Refusal or Right of First Care?

The “right of first refusal” or “right of first care” is a common provision in child custody and parenting agreements. In its most basic form, the right of first refusal means that when one parent needs child care, he or she must offer the other parent the opportunity to care for the child before contacting a babysitter or another family member to provide the care. While this seems like a reasonable provision in most cases, it may not be appropriate in some cases for a number of different reasons.

Although many parents agree to include the right of first refusal in their custody and parenting plans, other parents do not. In a case where parents cannot agree on the right of first refusal, a judge must decide whether including the right of first refusal in a parenting plan is in a child’s best interest. For instance, if the parents do not have a good relationship and have little contact with one another, a court might find that imposing the right of first refusal against one parent’s will is not in the child’s best interests. In other cases, if a parent is only may be called into work for two hours at a time during his or her time with the children, but only for an hour or two, it may be impractical to contact the other parent and request him or her to provide child care.

Therefore, having the right of first refusal is far from automatic. Not every parent has this right, and the court will not always grant a parent this right over the objection of the other parent. Courts may tend to favor the inclusion of the right of first refusal in parenting plans, particularly for extended periods of time, but they will not always require the parties to exercise it. A good example of a decision regarding the right of first refusal is found in the case of Ferrer v. Durkin, N.J. Super. App. Div., Docket No. A-4880-15T1, June 26, 2017. Although the parents had shared custody of their children, they also had a difficult relationship in which Father often argued and refused to compromise with Mother over minor aspects of their parenting agreement. The trial court declined to implement the right of first refusal as Father requested, and Father appealed. On appeal, the appellate court found that the trial judge did not abuse his discretion in finding that imposing the right of first refusal in this particular case was not in the best interests of the children.

The experienced child custody and parenting time lawyers at Argentino Family Law & Child Advocacy, LLC, are eager to answer your questions and help you understand how the right of first refusal works under New Jersey law. As your attorneys, our focus is on how to best represent you in your case and work toward your desired goals. We have handled countless child custody, divorce, and family law proceedings over the years, and we know how to assist you in reaching the best possible outcome in your case. Call our offices today at (973) 868-0958 and learn how we can help you with your New Jersey custody and parenting time case.

Special Concerns in Your “Gray” Divorce

family, relations, age and people concept – senior couple sitting on sofa at home

Over the past several years, there has been an increasing trend of divorces among couples over the age of 50, many of whom have been married several years. This trend may be attributable, at least in part, to individuals living longer, less societal stigma associated with divorce, and a simple unwillingness to remain in an unhappy marriage. While every divorce involves different issues, so-called “gray divorces” raise some special concerns that are unique to older individuals.

First, when a “gray divorce” occurs, the individuals are closer to retirement than many divorcing couples. Divorce can have a significant impact on an individual’s finances, especially when one spouse has been out of the workforce for an extended period or has few job-related skills. From this perspective, an older individual who divorces may find himself or herself having a more difficult time recovering from the financial fallout of the divorce. This can cause one or both spouses to have to work well beyond their anticipated retirement age and live a much different lifestyle. If you find yourself in this situation, you will need to carefully consider your financial situation and determine whether you need continuing support from your spouse or additional assets to adequately support yourself.

Legal fees, negative tax consequences, and early withdrawal penalties on retirement accounts all can negatively impact the existing marital assets, which result is not beneficial to either spouse. Maintaining the bills and taxes on the marital home may no longer be a possibility for either spouse; the fact is that when one household splits into two separate households, there is simply not as much money to go around. Since the parties have been married for a longer period of time, they are more likely to have accrued assets that then must be divided in the divorce. This can lead to lengthy and contested divorce proceedings, additional attorney’s fees, and serious tax consequences.

“Gray divorce” raises a number of issues and concerns that are not as likely to be present during divorces involving younger spouses. If you are in this situation, you need to be aware of these issues. At Argentino Family Law & Child Advocacy, LLC, we understand that every case is unique, so we pride ourselves in crafting an individual approach for every family whose interests we represent. Our family law attorneys are skilled in handling family law, divorce, and other cases involving children. Contact our experienced team of attorneys today so that we can assess your case, answer your questions, and present the options that are available to you. We will provide you with the information that you need to make the best decisions for you and your family.

How Breastfeeding May Affect Parenting Time

young mother breast feeding her infant over white background

Arranging a parenting time schedule is rarely an easy task, and when a young child is still breastfeeding, scheduling sufficient time with each parent becomes even more difficult. This situation is becoming more and more common, as more mothers are choosing to exclusively breastfeed for the first months and even years of their children’s lives, simply due to the superior health benefits that result from breastfeeding. Exclusive breastfeeding, however, can make overnight parenting difficult, if not impossible, but also can have a significant impact on daytime parenting, as well. This is particularly the case with mothers who practice “attachment parenting,” which can involve breastfeeding the child on demand, rather than on a set schedule, and continuing to breastfeed the child until the child decides to wean himself or herself.

Infants who are exclusively breastfed often reject a bottle, even if it contains breast milk. Due to the frequency with which infants must be fed, a child refusing a bottle during the other parent’s parenting time can result in frustration for both parent and child. At the same time, it is essential that the non-breastfeeding parent have the opportunity to feed and bond with the child at the earliest age possible. With no current guidance from New Jersey court rulings or statutes on the issue of breastfeeding, child custody, and parenting time, it can be difficult for a court considering the matter to decide what parenting arrangements are in the child’s best interests. While parents who live in the same geographical area may have an easier time working these issues out, it becomes even more difficult when the parents live farther apart and longer periods of parenting time are necessary. It is essential for parents of very young children to work towards keeping lines of communication and contact open to ensure the most beneficial situation possible for their child.

No matter what type of issues your family law case involves, our New Jersey family law attorneys are here to accompany you through every step of the legal proceedings in your case. We can answer your questions, evaluate your case, and go through all of the potential options for resolving your case. At Argentino Family Law & Advocacy, LLC, we have provided experienced legal representation for families, parents, and children throughout many different family law proceedings. Contact our office today at (973) 868-0958 or e-mail us at info@argentinolaw.com and schedule an appointment to talk with us about your case.

Can My Child’s Other Parent and I Agree to Waive Child Support?

Parents may wish to waive or terminate child support for a variety of reasons. Some parents may have come up with an alternate arrangement for supporting their child, some may simply wish to avoid all contact with their ex-significant others, and some believe that the other parent won’t pay his or her support obligation anyway. Whatever a parent’s reason may be for waiving or terminating the support, a New Jersey appeals court has ruled that divorcing parents cannot sign a property settlement agreement that waives or terminates a parent’s child support obligation.

In Patetta v. Patetta, 358 N.J. Super. 90 (App. Div. 2003), divorcing parents who shared three children signed a property settlement agreement that was incorporated into their final judgment of divorce. The agreement provided that Father was to pay $50 per week in child support for each child. When one child emancipated, which they defined as turning 18, getting married, passing away, or starting a full-time job, Father’s support obligation would be reduced by $50 per week. When their oldest child turned 18, Father sought to emancipate him and reduce his child support obligation, as per the terms of the property settlement agreement. Mother protested, arguing that the child was still living at home and attending community college. The trial court agreed with Mother, and refused to emancipate the child or reduce Father’s child support obligation. Father then appealed.

On appeal, the appellate court found that the question of whether a child is emancipated depends on certain facts, and that college attendance was a basis for continuing a parent’s child support obligation beyond the age of majority. The court also ruled that the right to support belongs to the child, not the parent, so that the parent cannot waive or terminate the child’s right to support in a divorce property settlement agreement.

Furthermore, in the 2017 decision of Conte v. Ainsworth, N.J. Super. App. Div., Docket No. A-3337-15T1, August 31, 2017, the New Jersey Appellate Division reconfirmed the ruling in Patetta. In Conte, Father and Mother signed a property settlement agreement as part of their divorce. This agreement provided that Father would pay weekly child support for their daughter until she was emancipated, which they defined as the daughter completing her college education. After the child graduated from college and entered a master’s program, Father reduced his child support payments and then sought to emancipate the child in court. In response, Mother asked for continued child support payments and for Father to contribute to college expenses. The trial court emancipated the child according to the terms of the property settlement agreement, and Mother appealed. The appellate court reversed the trial court’s finding of emancipation and ruled that the parties’ property settlement agreement could not waive the child’s right to support, and that the trial judge must consider facts outside the agreement in order to determine if the child was emancipated.

Child support cases are often complicated and stressful, whether you are establishing, modifying, or enforcing your child support obligation. No matter how complex the issues in your case may be, we are here to help. The attorneys of Argentino Family Law & Child Advocacy, LLC, have handled cases involving all aspects of divorce, child custody, and family law, as well as cases involving other matters related to families and children. Please contact the experienced New Jersey family and child lawyers at our office if you have any legal questions about children and your family.

Social Security Benefits and Child Support

There are a number of different situations in which Social Security benefits impact child support orders. The extent of this impact depends, at least in part, on the type and amount of the Social Security benefits that the parent is receiving. These circumstances tend to be very fact-specific, but a parent’s receipt of Social Security benefits, in whatever form they may be, significantly affects the outcome of a child support order.

A parent can receive Supplemental Social Security Income (SSI), Social Security Disability (SSD), or a combination of both. SSI is a means-tested government benefit for disabled individuals with very low incomes and a lack of a substantial work history that would qualify them for SSD. On the other hand, SSD is a government benefit that is not based on income. Rather, working individuals pay into Social Security through payroll deductions; later in life, if they become disabled and unable to work, they can receive SSD benefits in order to replace their employment income. Both of these types of Social Security benefits only are available for disabled individuals.

A parent’s SSI benefits are not considered income for the purposes of calculating child support obligations. Burns v. Edwards, 367 N.J. Super. 29 (App. Div. 2004). Therefore, a parent whose only income is SSI may not be ordered to pay child support. The only exception is if the parent also is able to earn or is earning income beyond what he or she receives in SSI. In that case, the additional income would be considered as income for that parent in setting a child support order.

SSD benefits, however, are counted as income for the purposes of calculating a parent’s child support obligation. Furthermore, when a parent receives SSD, the child also may be eligible for a direct benefit from the Social Security Administration (SSA). If the child receives this kind of benefit, it is subtracted from the disabled parent’s child support obligation. Herd v. Herd, 307 N.J. Super. 501 (App. Div. 1998). In some cases, the child will receive a substantial lump sum retroactive benefit. That sum is deducted from the parent’s child support obligation, but only for the period of time during which he or she was responsible for paying child support, and only for that amount of child support. Diehl v. Diehl, 389 N.J. Super 443 (App. Div. 2006).

The intersection of social security benefits and child support is a complex and non-routine matter that is likely to have a significant effect on both parents’ financial situations. We know how difficult and complicated child support cases can be, but we have the experience necessary to guide you through your case. Contact Argentino Family Law & Child Advocacy, LLC, today and we will show you how we can help with your New Jersey child support case. Our attorneys focus their practice primarily on family law and all legal issues related to children, so we are sure to have the skills that you need for proper representation in your family law case. We are here to answer your questions, settle your concerns, and assist you through the often difficult process of contested family law cases.