Archive for the ‘Family Law’ Category

False Child Molestation Claims Held To Amount To Child Abuse

November 28, 2012 Leave a comment

False Child Molestation Claims Held To Amount To Child Abuse

Charles Toutant

New Jersey Law Journal


A mother subjected her daughter to abuse and neglect by making baseless reports that the child was molested by her father, the Appellate Division ruled Tuesday.

By lodging the claims, and coaching the girl to corroborate them, the mother showed a reckless disregard for her child, the court said in DYFS v. C.O., A-2387-11.

The girl’s well-being was further jeopardized by the stress of physical and psychological examinations during the sex-abuse investigations, the court added.

The girl, referred to by the pseudonym Amy, was born in November 2006 after a brief romance between her parents, referred to as Sally and Charles.

Sally resisted letting Charles spend time with Amy, but he won visitation rights shortly before her first birthday.

In April 2010, when Amy was 3, Sally took her to an emergency room and said Charles had penetrated the girl’s vagina with a vibrating device while she was visiting him.

An investigation was conducted in New York, where Charles lived. The New Jersey Division of Youth and Family Services (DYFS) remained involved because Amy is a state resident.

New York police found no evidence of sexual abuse, based on a physical examination, conflicting accounts by Amy and Sally, and interviews of guests at a party attended by Charles and Amy at the time of the alleged abuse.

DYFS and Child Protective Services (CPS) in New York also found no sexual abuse. They cited the same sources, as well as a videotape of the party showing Amy playing happily and photographs of Amy’s genital and anal areas, taken by Sally’s father before and after the visit, which did not display any injury.

DYFS and CPS also cited counselors’ concerns that Amy’s statements had been prompted by Sally.

While that investigation was under way, Sally made additional allegations of sexual abuse against Charles and insisted that Amy have a second, invasive physical exam. Again, no signs of sexual abuse were found.

DYFS contended that Sally’s continuing conduct was harmful to Amy, in violation of N.J.S.A. 9:6-8.21 to -8.73, which defines child abuse and neglect.

A judge granted DYFS’s motion to transfer residential custody of Amy to Charles on May 13, 2010, pending a fact-finding hearing. The hearing was conducted on 12 nonconsecutive days between November 2010 and July 2011.

In December 2011, Bergen County Superior Court Judge Bonnie Mizdol ruled that DYFS had sustained its burden of proof that Sally exhibited a pattern of reckless disregard that harmed Amy.

Mizdol cited the “repeated, unnecessary medical, physical and psychological examinations” and Sally’s attempts “to shape and manipulate” Amy’s behavior to further Sally’s goal to isolate Charles “from any meaningful parental relationship with his daughter.”

Sally appealed, contending that Mizdol’s factual findings were not supported and that Sally’s constitutional rights were violated by the nonconsecutive hearing dates.

Appellate Division Judges Clarkson Fisher, Carmen Alvarez and Alexander Waugh Jr. affirmed, adding that Sally had not intended to hurt Amy.

The panel cited the stress of multiple investigations, Sally’s insistence on a second physical examination and counselors’ notes that Amy had an enhanced knowledge of sexual matters for a child of her age.

In addition, the panel said Mizdol properly characterized the mother’s conduct as “abuse or neglect.”

Noting that the child-abuse statute requires such conduct to rise above the level of mere negligence, and requires conduct that is “grossly or wantonly negligent” or “reckless,” the appeals court cited Mizdol’s finding that the mother’s conduct was “reckless.”

Sally also claimed that her pursuit of a clear answer as to whether her child was sexually abused did not constitute grossly or wantonly negligent behavior.

The appeals judges noted, however, that Sally had received a clear answer from Child Protective Services and the police but would not accept it.

“The reckless disregard found by the judge stemmed not from Sally’s efforts to rule out sexual abuse, but rather from her refusal to recognize a clear answer once she had one and her continued, baseless assertions that Charles had abused Amy,” the panel added.

Sally also disputed Mizdol’s conclusion that she had coached Amy, citing a counselor who supported her view.

But the appeals court said Mizdol’s finding was appropriately supported by two other counselors and an interview of Amy by a New York child-abuse investigator and a sheriff’s officer.

The panel also rejected Sally’s claim that her rights were violated by nonconsecutive hearing dates. Although R. 5:3-6 requires a trial to run over consecutive days, the delays were caused by scheduling issues, including Sally’s work schedule and the judge’s trial calendar, the panel said.

Sally’s lawyer, James Doyle of Swenson & Doyle in Hackensack, says the ruling unfairly labels his client a child abuser because she sought further reassurance that Amy had not been abused.

DYFS did a poor job of communicating to Sally the outcome of that inquiry, says Doyle. He adds that Sally no longer suspects Charles of child abuse and still hopes to regain primary custody but the abuse and neglect finding makes that difficult.

DYFS was represented by Assistant Attorney General Andrea Silkowitz. Lee Moore, a spokesman for the Attorney General’s Office, says his agency will not comment.



June 28, 2012 Leave a comment

N.G. v. J.P.

FAMILY LAWDomestic Violence
Although the parties have not resided together in more than 50 years, defendant‘s sporadic harassment of plaintiff over that period, arising from their status as former household members, conferred jurisdiction on the Family Part to issue a final restraining order under the Prevention of Domestic Violence Act.


By Judith Nallin


N.G. v. J.P., A-3247-10T3; Appellate Division; opinion by Baxter, J.A.D.; decided and approved for publication June 18, 2012. Before Judges Baxter, Nugent and Carchman. On appeal from the Chancery Division, Family Part, Essex County, FV-07-321-11. DDS No. 20-2-6661 [34 pp.]

Defendant J.P. appeals from the issuance of a final restraining order against him under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35.

Defendant and plaintiff N.G. are siblings who have not resided together since 1960. J.P. harbors a deep resentment of N.G. and their mother, B.P. The record describes confrontations between J.P. and N.G. in the 1960s when he allegedly hit her over the head with a baseball bat, in 1989, when he confronted her in a school parking lot, and in 1991, when he encountered her at a local pizzeria.

As a result of those incidents, N.G. obtained an order for preliminary restraints barring J.P. from contacting or disparaging her and from conducting any sort of public protest adjacent to her residence. In 1991, a judge entered a FRO prohibiting J.P. from coming within four blocks of the residences of B.P. and N.G.. The FRO was vacated in 1993 as to B.P. only.

In February 2010, J.P. began picketing in front of N.G.’s residence. On 29 occasions he marched back and forth repeatedly saying “F— you G——–,” “Burn in hell,” and “I hope you rot in hell.” He often made an obscene gesture in which he raised each of his middle fingers.

As a result, N.G. filed a domestic-violence complaint against him. The judge ruled that J.P. had committed the predicate acts of stalking and harassment and issued the FRO barring him from contacting N.G. and from entering any portion of Millburn Township. J.P. responded that he would not comply with the court’s order. N.G. was awarded attorney fees.

Held: The harassment of plaintiff by defendant over the intervening decades — although sporadic — conferred jurisdiction on the Family Part to issue the FRO since the present incidents arose directly from the parties’ acrimonious family relationship and their status as former household members.

Defendant’s conduct constituted harassment and stalking. The award of attorney fees to plaintiff is affirmed, as such fees are expressly available under the act and the judge correctly applied the factors in Rule 4:42-9(b). However, because the FRO failed to give sufficient consideration to J.P.’s legitimate need to attend church and visit his physician in Millburn, the matter is remanded so that the judge may set precise conditions respecting those activities.

J.P. claims that the court lacked jurisdiction to issue the FRO and that the judge committed reversible error when he refused to dismiss N.G.’s complaint. The panel says the act defines a victim of domestic violence to include, “any person … who has been subjected to domestic violence by … any … person who is a present or former household member.” The panel applies the six-factor test for determining whether jurisdiction exists based on the parties’ status set forth in Coleman v. Romano, 388 N.J. Super. 342 (Ch. Div. 2006).

As to the first factor, the nature and duration of the prior relationship between the parties, the panel agrees with the trial judge’s finding that although N.G. and J.P. have been estranged for decades, his attempt to re-establish contact with her springs from the antagonism he harbored toward her while they were members of the same household. The long duration of the parties’ relationship, albeit composed of sporadic episodes of intense strife, supports the conclusion that this factor was satisfied.

As to the second factor, whether the past domestic relationship provides a special opportunity for abuse and controlling behavior, the panel says J.P.’s testimony concerning the motivation for his behavior makes it clear that if N.G. were not his sister, he would not have behaved toward her as he did. Her testimony supports the conclusion that events during her childhood made her fearful of his conduct and threats in adulthood. Thus, the second factor weighs in favor of jurisdiction under the act.

The panel says that while the parties have not lived together for more than 50 years, the third factor, the amount of time that has elapsed since the parties last lived together, is only one factor to be considered in determining the availability of the act’s protection.

The fourth factor is the nature and extent of any contact between the parties between the time they ceased living together and when the plaintiff seeks protection under the act. The panel says that although J.P.’s conduct in 1989 and 1991 is distant in time both from when the parties stopped living together and from when N.G. sought protection under the act, the incidents were of such severity as to weigh in favor of jurisdiction.

As to the fifth factor, the nature of the precipitating incident, the panel says that case law has held that when the precipitating incident relates to the prior domestic relationship, jurisdiction under the act is appropriate. Because J.P.’s behavior in 2010 was motivated exclusively by what he perceived as B.P.’s and N.G.’s unjust treatment of him, and his conduct was persistent and threatening, the nature of the precipitating incident weighs in favor of jurisdiction.

Finally, the panel says the sixth factor, the likelihood of ongoing contact or a continuing relationship, weighs in favor of jurisdiction since defendant’s testimony provides ample evidence that his behavior will not cease.

Because all of the Coleman factors, with the possible exception of the third, weigh in favor of jurisdiction, the panel affirms the denial of defendant’s motion to dismiss.

As to defendant’s argument that the FRO was oppressively and impermissibly broad, the panel notes that remedies under the act are liberally construed for the protection and safety of victims and the public at large. Noting J.P.’s defiant attitude and his vow to disobey the FRO, it says extraordinary measures are necessary for N.G.’s protection.

Therefore, the panel affirms the ban on defendant entering Millburn. However, it remands to give J.P. a fuller opportunity to describe his church attendance and any visits to his doctors in Millburn. If he fails to do so, his right to seek such relief will be deemed waived.

As to defendant’s claim that the judge erred by finding his conduct constituted harassment and stalking, the panel reviews the statutory definition of stalking and concludes that the trial court correctly found that J.P. committed the predicate offense of stalking where he maintained a visual and physical proximity to N.G., his conduct was repeated 29 times, he threatened N.G. by offensive hand gestures and shouting curses at her, and he caused emotional distress.

Similarly, the panel reviews the definition of harassment and concludes that J.P.’s conduct constituted harassment where he communicated with N.G., his conduct undermined his claim that his intent was other than to harass her, and his repeated conduct was likely to cause annoyance or alarm.

The panel affirms the award of counsel fees, finding that such an award in a domestic-violence proceeding requires no special showing and that the judge carefully applied all of the factors specified in Rule 4:42-9(b), RPC 1.5(a) and Schmidt v. Schmidt, 262 N.J. Super. 451 (Ch. Div. 1992).

For appellant — Jack Venturi (Jack Venturi & Associates; Venturi and Michael B. Roberts on the briefs). For respondents — Mark H. Sobel (Greenbaum, Rowe, Smith & Davis; Sobel and Dennis F. Feeney on the brief).

Ex-Spouse’s Angry, Repeated Texting Not Harassment

August 23, 2011 Leave a comment

Ex-Spouse’s Angry, Repeated Texting Not Harassment, Appeals Court Says A string of 18 text messages in three hours from one divorced parent to the other does not necessarily amount to harassment, a state appeals court says in reversing a final restraining order.

David Gialanella



Excessive texting from one divorced parent to the other does not necessarily amount to harassment, a state appeals court said Monday in a published decision reversing a final restraining order. The husband’s sending of 18 angry messages in the space of three hours “shows only the convergence of modern technology and the foibles of human judgment,” the Appellate Division held in L.M.F. v. J.A.F., A-121-10. “Our ability to instantaneously and effortlessly send electronic messages has created a gateway unfettered by reflection and open to rash, emotionally driven decisions” and has “created a commensurate expectation of an equally instantaneous response from the recipient,” Judge Jose Fuentes wrote for the court. While texting is a good communication mode between estranged couples because of brevity and impersonality, it still is susceptible to “frustration and misuse” if parties do not cooperate, Fuentes said, calling the husband’s behavior “dysfunctional” but not done with the requisite intent to harass. The parties, who were divorced in 2006, conversed mostly by texting about parenting issues concerning their 19-year-old son and 17-year-old daughter, over whom they shared custody, though the children lived primarily with their mother. Husband J.A.F. had remarried and his current wife also joined in. In March 2010, the current wife complained that L.M.F. failed to notify them about a banquet for their daughter’s high school basketball team. The current wife then texted L.M.F. eight times between 7:32 a.m. and 8:19 a.m. on May 25, 2010, for not informing J.A.F. about a board of education meeting at which the basketball team was honored. The messages said J.A.F. and his wife “can go where ever we want TOGETHER” and tell L.M.F. to “Save ur breath for someone who gives a shit about what you think.” Then, on June 25, 2010, J.A.F. sent L.M.F. 18 text messages between 6:50 a.m. and 11:34 a.m. about their daughter’s SAT score, asking for an update and then accusing her of withholding information. “You are playing this game by not telling me t[h]ings about our kids,” he wrote, demanding that she keep him informed “so we both don’t look like ass hole parents that don’t talk.” L.M.F. testified that her lone response said she was not aware of the score and he should contact their daughter. On June 28, J.A.F. again texted about the SAT score, threatening to call his attorney and adding, “FYI, I pay you $2,800 a month more than what you make.” L.M.F. testified that when she called to ask him to stop, he became angry and called her “a fucking scorned woman.” J.A.F. sent two more texts that day, at around 5 p.m., inquiring about their daughter’s whereabouts. L.M.F. petitioned for a restraining order and, at trial, testified about an incident in December 2005, when, after J.A.F. moved out of their home, he returned and angrily asserted his right to come and go, yelling at her from a distance of about five feet. Hunterdon County Superior Court Judge Hany Mawla asked L.M.F. whether she was fearful, to which she responded, “yes.” She claimed J.A.F. intermittently barraged her with texts whenever the children were unresponsive to him. J.A.F., in turn, argued that L.M.F. withheld information about the children and provoked him with inflammatory e-mails. Mawla issued a final restraining order, finding that L.M.F.’s nonresponse to J.A.F.’s texts did not excuse his conduct, which amounted to the predicate act of harassment under N.J.S.A. 2C:33-4. Mawla cited J.A.F.’s use of offensive language in calling her a “fucking scorned woman,” his current wife’s use of profanity in one of her texts and the timing of his early-morning messages, which the judge said were likely to annoy her. But Fuentes, joined by Judges Victor Ashrafi and William Nugent, reversed, saying Mawla did not find J.A.F. sent the messages to harass his ex-wife. L.M.F. did not dispute that J.A.F.’s purpose was to inquire about their daughter, and the texts became an annoyance only after she ignored them, the panel said. When she did, “it was not unreasonable for defendant to assume he was being snubbed or ignored,” Fuentes wrote. “He manifested his frustration by resending the same message, over and over again, in a misguided attempt to provoke some kind of response from plaintiff,” though the subject was always legitimate concerns about their children, Fuentes wrote. Even if L.M.F. established the predicate harassment, Mawla did not find — as the Domestic Violence Act requires — that relief is necessary to prevent further abuse, the panel said, writing off the December 2005 incident as “not part of a pattern of verbal or physical abuse.” Also, L.M.F. offered evidence of her fearfulness only when prompted by Mawla, the court said, noting that judges “must take special care to craft questions in such a manner to avoid being perceived as an advocate for any side of a dispute.” As for his current wife’s communiques, there was no evidence J.A.F. directed her to send those messages and Mawla should not have considered them in ruling on the restraining order, the panel said. J.A.F.’s attorney, Michael Speck of Keith Burns’ firm in Iselin, did not return a call. L.M.F. was pro se on appeal.

Deportation of citizen’s same-sex partner canceled

June 30, 2011 Leave a comment

Deportation of citizen’s same-sex partner canceled

Thursday, June 30, 2011

Last updated: Thursday June 30, 2011, 6:13 PM


NEWARK — Immigration officials have called off the deportation of a Venezuelan man who legally married his same-sex partner in the United States, a move advocates hope will push the Obama administration to halt similar deportations and help repeal a federal law that recognizes only marriages between a man and a woman. In this photo taken August 2010, Josh Vandiver, left, and Henry Velandia toast during their wedding in Montville, CT. Velandia, 27, from Venezuela, faced deportation from the U.S., as the U.S. federal government does not recognize same sex marriage. In this photo taken August 2010, Josh Vandiver, left, and Henry Velandia toast during their wedding in Montville, CT. Velandia, 27, from Venezuela, faced deportation from the U.S., as the U.S. federal government does not recognize same sex marriage. Henry Velandia, a 27-year-old professional salsa dancer from Caracas, asked to remain in the United States as the spouse of U.S. citizen Josh Vandiver, a 30-year-old graduate student at Princeton University. They were legally wed in Connecticut but live in New Jersey, where same-sex marriage is not legal. Because of the Defense of Marriage Act, a 1996 federal law that defines marriage as between a man and a woman, Vandiver was not able to sponsor Velandia for a green card, as a heterosexual person could sponsor a spouse. Velandia’s visitor visa expired, and he was placed in deportation proceedings. The couple’s attorney, Lavi Soloway, the founder of a group aimed at stopping the deportation of gay and lesbian spouses of Americans, filed to have the order canceled. Immigration and Customs Enforcement officials in New Jersey notified the couple Wednesday that they were ending deportation proceedings against Velandia. “It’s an amazing relief to go from one day having your spouse being deported, to the next day looking forward to a life together as a married couple; building it, and planning it, just like any other married couple,” Vandiver said. The case has drawn attention to the complexities faced by many of the estimated 36,000 gay and lesbian couples of mixed nationality in the U.S. Soloway said that although the decision in Velandia’s case did not set a legal precedent, it was the first involving the spouse of a lesbian or gay American in which the Department of Homeland Security showed it has the discretion to evaluate the merits of each case and, when applicable, decline to pursue deportation. “The administration clearly believes it is discriminatory and unconstitutional to have a law that denies recognition to lawful marriages of gay and lesbian citizens,” Soloway said. “By extension, it’s unthinkable this administration would take the position that the spouse of a gay and lesbian American should be treated any differently than the spouse of a straight American citizen.” An email and phone message left Thursday afternoon for Immigration and Customs Enforcement officials in New Jersey had not been returned by early evening. President Barack Obama reiterated at a news conference Wednesday that he had instructed the Justice Department to stop defending the marriage act in court. He said he supported gay equality but repeated his position in support of civil unions instead of marriage, saying the definition of marriage was best left to states. Obama’s instruction to stop defending the marriage act factored into Velandia’s deportation case. In May, his case was adjourned by a Newark immigration judge, who said clarification was needed from U.S. Attorney General Eric Holder after he intervened in a similar case. Holder had set aside a Board of Immigration Appeals ruling allowing the deportation to Ireland of Paul Wilson, a gay man illegally in the U.S. who entered a civil union in New Jersey with his male partner. In that case, the board had based its decision to deport on the Defense of Marriage Act. Holder asked the judges to determine whether Dorman could be considered a spouse under New Jersey law, and whether he would be a spouse under immigration law were it not for the Act, according to a copy of the decision. The board’s decision is pending. Supporters of the Defense of Marriage Act say that the administration’s actions send a confusing message, and that the debate over the law should not be conducted through executive branch nullification, but through regular channels. Some members of Congress want to repeal the law, and many advocates expect a federal court to invalidate it, although the process could take years. U.S. Rep. Rush Holt, who represents the central New Jersey district where Vandiver and Velandia live, wrote a letter in April asking the Obama administration to halt deportation proceedings against the same-sex spouses of U.S. citizens in light of Holder’s actions. Velandia told The Associated Press on Thursday that although he was elated his deportation had been halted, he remains in legal limbo because he cannot be sponsored for a green card by his spouse. “It’s basically given me my life back, being able to be with my husband after feeling so much tension over waiting to see what was going to happen with me,” Velandia said. “I’m just so happy they’ve given me the opportunity to stay with the person that I love.”

Bill Would Ease Evidentiary Standards For Grandparental, Sibling Visitation

June 30, 2011 Leave a comment

Bill Would Ease Evidentiary Standards For Grandparental, Sibling Visitation

New legislation is afoot that would lower the burden of proof for grandparents and siblings seeking visitation rights in contested cases.

David Gialanella


New legislation is afoot that would lower the burden of proof for grandparents and siblings seeking visitation rights in contested cases.

The bill, S-2975, introduced Monday, would alter the doctrine of Moriarty v. Bradt , 177 N.J. 84 (2003), which holds that grandparents may be awarded visitation regardless of parental objections if a threshold “potential for harm” standard — not set forth in the Grandparent Visitation Act, N.J.S.A. 9:2-7.1 — is met by a preponderance of the evidence.

“This … standard places an onerous burden on an applicant to prove that the child would be specifically or concretely harmed if the court denies the order of visitation, especially if the applicant has been unable to establish a relationship with the child because the child’s parent refuses to allow visitation,” the bill’s statement reads.

Under the act, if an applicant for visitation was once the child’s full-time caregiver, that is deemed prima facie evidence that visitation is in the child’s best interest. The bill would also make that state of facts prima facie evidence of potential for harm if visitation is denied.

Four other instances would amount to prima facie evidence of both the best-interest and potential-for-harm standards: (1) if one or both parents is deceased; (2) if the parents are divorced; (3) if the applicant demonstrates a past or ongoing close relationship with the child; or (4) if the applicant has tried to establish a close relationship and the parents have refused to permit it.

In any of those instances, the court would be required to order at least one mediation session to attempt to resolve the conflict. After an evidentiary hearing, the court would decide the visitation request based on statutory factors that include the relationship between the child and applicant, the relationship between the parents or caretakers and the applicant and the time passed since the child’s last contact with the applicant.

However, “animosity between the child’s parent and the applicant shall not be a basis for the court to deny an order for visitation,” the bill says.

Weinberg says she undertook the legislation after her office was contacted by grandparents whose applications had been denied in court. The bill, drafted by the Office of Legislative Services, “seems to makes sense,” she says.

In Moriarty , the Court sought to repair New Jersey‘s visitation statute, enacted in 1971, so that it would pass the U.S. Supreme Court’s scrutiny. In Troxel v. Granville , 530 U.S. (2000), the U.S. Court struck down Washington State’s visitation statute as overbroad and held parental autonomy “to make decisions concerning the care, custody and control of their children” is protected under the 14th Amendment’s due process clause.

Justice Virginia Long noted that Troxel “stopped short of invalidating nonparental visitation statutes per se and declined to define the precise scope of the parental due process right in the visitation context.” The Moriarty Court thus added the potential-for-harm standard and found that two maternal grandparents who sought visitation with the children of their former son-in-law, who objected, met the standard by a preponderance of the evidence.

Justice Peter Verniero dissented in part, saying applicants should be held to a higher evidentiary standard, clear and convincing evidence.

Francis Donahue of Donahue, Hagan, Klein, Newsome, O’Donnell & Weisburg in Morristown, who represented the grandparents, Lynn Jack and Patricia Bradt, says Moriarty made the burden for nonparent visitation applicants too high, calling it “a classic case of success under a very strict standard.”

Donahue, who has not yet studied the Weinberg bill, says, “The problem with the existing law is … it’s very difficult to prove harm before the harm occurs. It becomes a heavy burden to get an expert to say … there’s an identifiable, significant harm.”

Hackensack lawyer Robert Corcoran, who represented the losing parent, Patrick Moriarty, at the Court, agrees that although the Bradts won, ” Moriarty made it more difficult for grandparents to get visitation.”

At the trial court level, “most of the judges I’ve seen are erring on the side of caution” and rejecting those applications, says Corcoran, who practice exclusively family law and represents both sides in parent-grandparent visitation disputes.

Corcoran says S-2975 poses constitutional concerns and could “open up the opportunity to take another bite at the apple” for losing visitation applicants. “If this law expands [ Moriarty ] … these people are going to come back with a change of circumstances,” he says.

Another family court practitioner, Woodbury solo Michael Pimpinelli, says he doubts the visitation law, as amended by S-2975 , would pass constitutional muster. “Any time you use the words ‘prima facie’ to ease the burden of the moving party, those are the words that would raise a Troxel red flag,” he says. “I think Moriarty is a stretch as it is.”