S.B. v. K.C.: Custody Arrangements that Give Rise to Continuing Risks for Domestic Violence

On October 12, 2018, the Appellate Division handed down an unpublished decision in S.B. v. K.C., a case in which Essex County Superior Court dismissed an application for a domestic violence temporary restraining order and denied a final restraining order. 

Plaintiff and Defendant were never married but had one child together, born in August 2007.  The parties lived together for a few months following their child’s birth, until Defendant became incarcerated. 

Plaintiff filed her first domestic violence complaint on June 18, 2012.  She alleged that Defendant had hit her during their child’s preschool graduation and threatened to kill her, and also kicked Plaintiff’s car while she was sitting in it.  Plaintiff also laid out a history of previously unreported domestic violence incidents spanning as early as when their child was 3 weeks old.  A trial court judge granted Plaintiff’s request for a temporary restraining order (TRO) pursuant to the Prevention of Domestic Violence Act (PDVA)(N.J.S.A. 2C:25-17 to -35). 

Defendant was not served with the TRO until he appeared for a visitation hearing before a second trial court judge nearly 5 years later, on February 17, 2017.  At that time, the second trial court judge continued the restraints from the original TRO and scheduled a trial date for a Final Restraining Order (FRO) hearing. 

On March 2, 2017, Plaintiff amended her complaint to add more incidents that had occurred since the entry of the initial TRO.  The second trial judge granted Plaintiff’s amended TRO and scheduled an FRO hearing for March 16, 2017 before a third trial judge. 

A trial court must analyze a case brought under the PDVA by applying the two-prong test in Silver v. Silver, 387 N.J. Super 112, 126 (App. Div. 2006).  The first prong requires the court to determine whether or not a predicate act (as defined by the PDVA) was committed, and the second prong requires the court to determine whether a final restraining order is necessary to prevent the defendant from causing harm to the plaintiff in the future. 

At the March 16, 2017 hearing, Plaintiff appeared with counsel, while Defendant failed to appear at all.  Plaintiff gave testimony.  The court issued an FRO by default on the grounds that Defendant had committed the predicate acts of assault and harassment and that Plaintiff was afraid of Defendant. 

However, the next day (March 17, 2017) the Defendant appeared in court and filed a motion for reconsideration before the second trial judge, claiming that he (the Defendant) had made a mistake with respect to the FRO hearing date.  When the second judge heard the motion for reconsideration, both parties appeared (Plaintiff had counsel) and both parties testified.  Neither presented witnesses or documentary evidence.  The judge ultimately found that Plaintiff failed to corroborate most of the allegations made in her amended TRO but that she did prove that Defendant committed three predicate acts on two separate occasions.  Even though the judge recognized that Defendant committed predicate acts, the trial judge commented that the incidents were three years apart, and he saw no immediate danger to Plaintiff and therefore, there was no need to enter an FRO to prevent future harm. 

Plaintiff appealed.  Defendant failed to file any responsive pleadings.  The Appellate Division found that the trial court had “failed to give sufficient measured consideration to the ongoing visitation issues concerning [the parties’ child] which will continue to bring the parties into contact and almost inevitably be a source of conflict.” The Appellate Division noted that Defendant’s commission of two separate predicate acts were likely to be repeated in the future because of the ongoing issues, and that the trial judge was mistaken in finding that Plaintiff failed to establish the second prong of the Silver analysis.  The Appellate Division reversed the trial judge’s decision, remanded the matter back to the trial court, and directed the trial court to enter an FRO, including parenting time provisions if necessary. 

Sahai v. Sahai: A Noncompliant Party Cannot Withhold Financial Information from the Court then Claim an Inability to Pay Sanctions and Attorney’s Fees

On October 2, 2018, the Appellate Division handed down an unpublished decision in Rooney Sahai v. Susan Sahai, a post-judgment matrimonial matter on appeal from Bergen County. 

The parties divorced in 2012 after 26 years of marriage.  Their Property Settlement Agreement (PSA) provided for no parenting time between Susan and the parties’ severely disabled adult daughter, even though both parties cared for the child from the time of her birth through the entry of their divorce.  In July 2014, Susan filed a motion to vacate the PSA on the grounds that Rooney coerced her into signing it.  The court scheduled a plenary hearing shortly thereafter. 

Over the 4 ½ years that followed Susan’s motion; Rooney engaged in what the Appellate Division labeled as “obstructionist litigation.”  Rooney failed to comply with 3 separate court orders (including a consent order), entered over the course of 9 months, for Susan to have visitation with the parties’ daughter.  Rooney initiated a criminal complaint against Susan with the Bergen County Prosecutor’s office (which was administratively dismissed).  He also filed civil suits against Susan’s attorney in Superior Court and Federal Court (both of which were also dismissed).  During all of this chaos, the trial court imposed $20,000 in sanctions against Rooney for his non-compliance with court orders as well as ordering him to pay over $10,000 in attorney’s fees.   

Rooney filed 2 appeals relative to the sanctions and attorney’s fees.  Prior to the Appellate Division reviewing the matter, Susan’s attorney informed the court that the plenary hearing was still pending, as the trial court was now awaiting the Appellate Division’s decision. 

On appeal, the court noted that Rooney had failed to comply with the financial discovery that was required of him at the trial level.  For that reason, he could not now come before the Court and claim an inability to pay.  The Appellate Court also supported the trial court’s statements that it did not find Rooney’s testimony about his financial circumstances to be credible, and that it was able to make a “reasonable inference” that he was either attempting to hide money or attempting to mislead the court.  The Appellate Court ultimately affirmed the trial court’s award of counsel fees and imposition of sanctions. 

Terminating child support for children with special needs

On October 3, 2018, the New Jersey Appellate Courts rendered an unreported decision on a case about emancipating a child with disabilities.  (S.E. v. B.S.B. (A-0485-17T2)) 

According to New Jersey statutory law, a parent’s continuing obligation to provide child support presumptively ends when the child turns 19 years old, unless a different date is ordered by the Court.  However, even if a different date is ordered, the support cannot continue beyond the child’s 23rd birthday (except under exceptional circumstances). 

In S.E. v. B.S.B., the child receiving support was 23 years old, born with cerebral palsy, and diagnosed Attention Deficit/Hyperactivity Disorder (ADHD).  The child’s mother filed a motion with the trial court for an order compelling the child’s father to continue providing support even though the child had reached the statutory maximum age.  The child had graduated high school, was working towards earning an Associate’s Degree, and had applied to numerous jobs (without success).  The child’s mother advised the Court that she had obtained social security disability benefits for the child and that he was also utilizing services available through social service agencies.  The Court noted that the child’s father’s testimony was limited, because he basically never had any meaningful contact with his child. 

The trial Court terminated the father’s child support obligation.  The trial court opined that the mother did not provide any current medical evidence that indicated that the child’s cerebral palsy was so severe that the child required a parent to provide financial support beyond the age of 23.  The trial court also remarked that the child was able to attend physical therapy on his own, was able to work, and could be self-sufficient. 

The child’s mother appealed.  The Appellate Court agreed with the Trial Court’s findings, summarizing their thoughts by citing 2 governing statutes (N.J.S.A. 2A:17-56.67(e), and N.J.S.A. 2A:34-23(a)).  The Appellate Court stated that when the 2 statutes are read together, they mean that “if an adult child suffers from a disability but is self-sufficient, he is generally considered emancipated beyond the sphere of a parent’s legal, if not moral, obligation.” (citing Kruvant v. Kruvant, 100 N.J. SUPER. 107, 119 (App. Div. 1968).  The Appellate Court commented that the record showed that the child was independent in most of his daily living activities.  The Appellate Court summed up its decision by stating that the mother in this case bore the burden of rebutting the presumption of her child’s emancipation as a matter of law, and that even though her concerns for her child’s future well-being and financial security were genuine, she had not overcome the presumptive emancipation in accordance with the 2 governing statutes. 

W.A.D. v. R.M.C.: Proof that One Parent’s Bad Behavior Will Not Be Rewarded by the Courts

On October 5, 2018, the Appellate Division handed down a decision in W.A.D. v. R.M.C., a case that was appealed from Essex County Superior Court, Family Division. 

Plaintiff and Defendant met in 2009 and shortly thereafter began an intimate relationship.  By autumn of 2009, Defendant moved into Plaintiff’s single-family home in West Orange.  In 2011, the parties’ relationship deteriorated because Defendant wanted to have children, but Plaintiff did not.  Defendant moved out of Plaintiff’s home, but the parties remained in contact.  Defendant became a licensed foster parent during that time.   

On December 3, 2011, a child (G.M.) was born, and the Division of Child Protection and Permanency (DCP&P) contacted Defendant and advised her that the child could be placed with her immediately.  That month, Plaintiff and Defendant picked up G.M. from the hospital together, and all three began living in Plaintiff’s home in West Orange.  The parties agreed that the child would call Plaintiff “Mamma” and Defendant “Mommy.”  Two years later, in 2013, the parties found out that G.M. had a brother who was also available for adoption.  Defendant wanted to adopt G.M.’s brother; Plaintiff did not.  The parties’ relationship once again deteriorated.  Notwithstanding the parties’ failing relationship, they both agreed that they wanted to adopt G.M.  However, given the fact they were a same-sex couple, they believed that the process would be delayed, and as such, they agreed that G.M.’s adoption would be in Defendant’s name ONLY, and that Plaintiff’s would go through the process at a later date.  Defendant formally adopted G.M. on November 11, 2013 (while still residing in Plaintiff’s home). 

In 2014, the parties ended their relationship.  In June of 2014, Defendant began dating another individual (referred to by the initials C.M.C. in court documents), then moved out of Plaintiff’s residence and moved to Union County, into the C.M.C.’s residence.  At that time, G.M. was a few months shy of his 3rd birthday. 

In June 2015, Plaintiff filed an application in Essex County Superior Court seeking joint legal and physical custody of G.M., as well as seeking to have her name placed on G.M.’s birth certificate and to have G.M.’s last name hyphenated to reflect both parents’ surnames.  The Court entered an Order scheduling a trial, temporarily granting Defendant sole legal and residential custody, appointing a Guardian ad Litem for G.M., and appointing an expert to determining whether there was a psychological bond between Plaintiff and G.M.  Plaintiff soon thereafter amended her pleadings to seek an order designating her as G.M.’s parent of primary residence (PPR). 

In July 2015 Defendant married C.M.C.  In November 2015, Plaintiff filed a complaint for adoption of G.M. in Essex County.  Coincidentally (or not) that same month, C.M.C. filed a complaint for adoption of G.M. in Union County.  C.M.C.’s complaint for adoption was ultimately dismissed and she was ordered to pay Plaintiff $26,000 in counsel fees.  The Court awarded the fees because (among other things) C.M.C. failed to advise Union County Court that the child she sought to adopt was the subject of custody litigation that had been pending in Essex County for several months. 

The parties’ trial in Essex County commenced on May 10, 2016 and concluded on September 23, 2018.  Judge Craig Harris presided over the trial and rendered an opinion on November 18, 2016.  Judge Harris’ Order set forth that Plaintiff had met the criteria in V.C. v. M.J.B. to be deemed a psychological parent to G.M.  (163 N.J.  223 (2000)).  He also found that it was in G.M.’s best interests for Plaintiff to be designated as PPR.  Plaintiff’s request to be placed on G.M.’s birth certificate, as well as her request to hyphenate G.M.’s last name to reflect both parties’ surnames were also granted. 

Defendant filed a motion for reconsideration of the court’s November 18, 2016 Order.  Her motion was denied.  Thereafter, Defendant appealed the orders on several grounds, the most important of which were the contention that the court erred in finding that Plaintiff was a psychological parent to G.M., and that the Court erred in ordering joint legal custody with Plaintiff as the PPR. 

The Appellate Court affirmed the trial judge’s findings and rulings.  The Appellate Court echoed reiterated one of the tenets from V.C., which states that “the psychological parenting doctrine is based on the ‘recognition that children have a strong interest in maintaining the ties that connect them to adults who love and provide for them.’” The Court outright rejected Defendant’s arguments that proper weight was not afforded to her status as an adoptive parent. The Court stated that once an individual is deemed to be a psychological parent to a child, they stand “in parity with the legal parent” and that the standard deciding custody and visitation issues in that regard is “best interests of the child” in accordance with N.J.S.A. 9:2-4. 

The Appellate Division also rejected the following several arguments Defendant made, which were nothing more than attacks on Plaintiff’s style of parenting (such as referring to Plaintiff as a babysitter, and a playful caretaker).  The Appellate Division instead focused on the abundance of proof in the record that Defendant was a deeply uncooperative co-parent and did things such as: 

  • Failing to provide Plaintiff with information regarding G.M.’s medical providers (on several occasions) 
  • Unilaterally removing the child from his school district 
  • Registering the child in a new school 
  • Denying Plaintiff parenting time during the holiday 
  • Refusing to allow the child to participate in activities with Plaintiff’s family 
  • Disparaging Plaintiff on social media 
  • Moving several times in a short time span (contrasted with Plaintiff remaining at the same residence for 15 years) 

The Appellate Division recounted expert witness testimony that stated that the degree of vitriol coming from Defendant was affecting G.M. and” had the potential to cause him to sustain significant and lasting harm.” 

The trial court’s admonishment of Defendant’s refusal to co-parent, as well as the Appellate Division’s affirmation of the trial court’s decision should serve as a warning to parents in ugly custody battles; acting as a child’s only parent, and making unilateral decisions with respect to the health, education and general welfare of the child, can and will (and should!) backfire in a custody trial.