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Here you can find information on the recent legal developments in family law, immigration law,
wills & estate planning, DUI/DWI & traffic violations and landlord-tenant law.
April 2011
Child "of Sufficient Age" May Have a Say as to Preferred Living Arrangements When Relocation is Sought
Recently published McKinley v. Naters, Ch. Div., Family Pt. - Ocean Cy. (20-4-1717) addressed pretrial issues
in child custody/removal litigation. Specifically, the party seeking to permanently relocate a child to another state
has applied for an order permitting the temporary removal of the child to the proposed new state, prior to trial and
over the other party's objection, for "extended vacation purposes." The opinion focuses on the often-overlooked
need to provide a child "of sufficient age," when possible, with hands-on exposure to different proposed living
arrangements prior to his/her court interview under R. 5:8-6. During such interview, the court may need to inquire
as to the child's preferred living arrangements pursuant to applicable law. [Decided June 25, 2010.] return to top
Proposed Bill Would Limit Suits Against Court-Appointed Mental Health Professionals
New Jersey state lawmakers are considering legislation that would make it more difficult for litigants to sue mental health
professionals appointed to assist family courts in determining child custody and visitation issues. The bill, A-412,
passed through the Assembly in a 78-0 on March 14, and was sent to the Senate, where there is no companion measure,
for consideration. Under the bill, sponsored by Assemblyman Patrick Diegnan, D-Middlesex, court-appointed psychologists
and psychiatrists who have been hired as a child custody evaluator, therapist, mediator, parent coordinator or
parent educator would be presumed to be acting in good faith in making their determinations. return to top
July 2010
Religious Belief That Permits Domestic Violence is NOT a Defense in New Jersey
In S.D. v. M.J.R. the New Jersey Appellate Division summarily rejected a 2009 Family Court judge's ruling that
a spousal sexual assault based upon the defendant's belief that his Muslim faith permitted him to demand sex from
his wife could not be found to violate the Domestic Violence Law.
The defendant in a domestic violence matter who repeatedly assaulted his wife, and forced her to have sexual
intercourse, asserted that he was behaving according to his religious beliefs that as a husband he was permitted to
have sex with his wife whenever he wished to, whether she agreed to it or not, and as such his actions were
consistent with his religious practices and could not be prohibited by law!
The Appellate Division reversed the case on this issue and also ordered the lower court to enter a final
restraining order based on the predicate acts of assault, harassment and the sexual crimes, in order to protect the
plaintiff from future acts of domestic violence. Judge Payne determined that there is no basis upon which to deny
a final restraining order finding that the husband knowingly engaged in acts that violated the sexual assault
statute even if he subjectively believed that the law did not apply to him. A Family Part judge should not rely
solely upon either criminal bail restraints or pending family actions to protect a victim of domestic violence. return to top
Home state jurisdiction includes living in a state at least 6 consecutive months
In Dalessio v. Gallagher, Judge Skillman, in a published App Div decision, held that the requirement for home state jurisdiction under the UCCJEA,
includes living in the state for a period of six consecutive months that ends during the six months immediately
preceding the commencement of the child custody proceeding. The Court cited approvingly a Montana opinion which
so reconciled the two provisions of the UCCJEA that address "home state" jurisdiction: A state "has jurisdiction
if it is the child's home state 'within six months before' the commencement of" the proceeding, and "home state"
is defined as a child and parent having lived in the state for "at least 6 consecutive months immediately before
the commencement of" the proceeding. As such, according to this decision, if a child and parent live in NJ from January 1
to June 30 of year 20XX (before moving to Yazoo City, MS) and a complaint for custody or parenting time is brought
on Dec 15, 20XX, NJ would be considered the home state of the child. return to top
June 2010
Parental rights outweigh relationship formed with foster parents
New Jersey appeals court declared that the possibility that a child may suffer serious psychological or emotional
harm from severing bonds with foster parents by itself is not a sufficient ground to terminate parental rights.
The court held that it must be proved that formation of a bond between the foster parents and a child, was in large
part the birth parent's doing, to the point where "any harm caused to the child by severing the bond rests at the
feet of the parent," Division of Youth and Family Services v. D.M., A-6020-08. The ruling, reversing a trial
court's decision, is an important victory for birth parents because it argues that the best-interest-of-the
child standard needs to be followed scrupulously in termination cases, despite a Supreme Court ruling that
seemed to allow a more expansive interpretation. return to top
May 2010
Parent's ne exeat right is a "right to custody" under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Remedies Act
In Abbott v. Abbott 560 U.S. __, 130 S. Ct. 1983, 176 L. Ed. 2d 789 (2010), the Supreme Court held that a parent
has a right of custody under the Hague Convention on International Child Abduction when the parent retains a ne exeat right
(the right to restrain someone from leaving a country). The Court recognized that the Convention applies because the child in question
was under 16 and was a habitual resident of Chile, a signatory to the convention. The Court also reasoned that the Convention's text,
the U.S. State Department's views, signatory states' court orders, and the Convention's purposes all suggest that
Mr. Abbott retained a ne exeat right under Article 49 of the Convention. Mr. Abbott possessed direct and regular visitation
rights with his child so his ne exeat followed, giving him a right of custody to his child so long as Ms. Abbott
could not find an exception in the Convention precluding the exercise of Mr. Abbott's right to custody. return to top
Child support obligation cannot be waived
The Appellate Division rejected plaintiff's argument that an order entered three years earlier denying defendant's
request that she pay child support was immutable, thus relieving her of the obligation to support the parties'
un-emancipated daughter until and unless defendant could prove changed circumstances warranting modification of
the prior order's provisions. 20-2-7960 Colca v. Anson, App. Div. (Lihotz, J.A.D.) return to top
February 2010
Clear and convincing evidence necessary to terminate kinship legal guardinship
The New Jersey Supreme Court unanimously declared in New Jersey Division of Youth and Family Services v. L.L.(28-1-6909) that
parents seeking to regain legal custody of a child taken from them and placed with a relative or friend, must prove by
clear and convincing evidence, and not just by preponderance of evidence (which is a lower standard), that the reason for
original removal of the the child no longer exists and that termianting guardianship is in the child's best interests. This ruling
thus clarifies the Kinship Act, N.J.S.A. 3B:12A-1 to -7, enacted in 2002 as an alternative form of permanent
placement for children who cannot safely remain with their parents. Kinship legal guardianship does not require
termination of parental rights or that the caregiver adopt the child. return to top
Successful completion of a period of suspended judgment does
not result in expungement of the underlying finding of child abuse or neglect
The appeal in N.J. Division of Youth and Family Services v. R.M. (28-2-6742) required determination of (1) the
criteria for application of the "suspended judgment" provision of N.J.S.A. 9:6-8.51(a)(1); and (2) whether successful
completion of a period of suspended judgment necessarily leads to the removal of the underlying finding of abuse
or neglect from the central registry maintained by the division pursuant to N.J.S.A. 9:6-8.11. The opinion concludes
that (1) the suspended-judgment provision of N.J.S.A. 9:6-8.51(a)(1) is generally applicable when a Family Part
judge has held a dispositional hearing and is not prepared to enter a final order returning the child to the parent
or placing the child with the division, but instead proposes to give the parent an opportunity to maintain the family
unit based on adherence to the particular remedial requirements established pursuant to N.J.S.A. 9:6-8.52(a);
and (2) successful completion of a period of suspended judgment does not result in expungement of the underlying
finding of abuse or neglect. Because there is no basis to conclude that the Legislature intended the suspended-judgment
provision of N.J.S.A. 9:6-8.51(a)(1) to provide the equivalent of pretrial intervention in abuse and neglect cases,
N.J. Division of Youth & Family Services v. C.R., 387 N.J. Super. 363 (Ch. Div. 2006), is overruled. return to top
January 2010
When a spouse dies while an action for divorce is pending and the equities demand it, posthumous relief is available
Kay v. Kay, 200 N.J. 551 (01/06/10) The Supreme Court held that when the estate of a spouse who died during
pending divorce action presents a claim for equitable relief related to marital property, the court may not refuse
to consider the equities arising from the facts of that case solely on the ground that the estate may not assert
equitable claims against the marital estate sounding in constructive trust, resulting trust, quasicontract or unjust
enrichment. In this case, a husband claimed that his wife wrongfully diverted marital assets for her benefit and to
his detriment. When he subsequently died, his estate moved for equitable relief based upon those claims. The Supreme
Court held that equitable relief is available, but distinguished this from the relief available in the divorce.
The Court held that the equitable principles in Carr v. Carr, 120 N.J. 336 (1990) apply even though the factual
situation is the opposite of that in Carr. In Carr, the spouse accused of diverting assets died and the Court held
that the surviving spouse could pursue equitable claims against the estate of the spouse who died during the pendency
of the divorce action. return to top
N.J.S.A. 25:1-5(h): Palimony (Approved January 18, 2010)
The statute of frauds was amended to require that agreements between unmarried parties to provide support
for the other party are not enforceable unless made in writing and with the independent advice of counsel for both parties. return to top
April 2011
New Jersey Court to Decide Whether Plaintiff's Waiver of All Damages Claims in the Property Settlement Agreement at
the Time of His Divorce, Bars Him from Instituting a Separate Action Against His Former Wife
This is a tort case but it also refers to immigration fraud. 36-2-1725 Luong v. Nguyen, App. Div. (per curiam)
After filing for divorce, plaintiff filed a complaint asserting claims of legal and equitable fraud based on allegations that
his now ex-wife induced him into marriage by falsely representing that she loved him and would be a good wife, when her sole
purpose was to obtain financial benefit and a green card. He further alleged that his ex-wife's aunt and uncle conspired with her to defraud him into marriage.
He also asserted claims of intentional and negligent infliction of emotional distress. Plaintiff appeals from an
order which, following a proof hearing, dismissed his complaint with prejudice because he failed to prove the
elements of his claims. The appellate panel finds that the judge erred by imposing a heavier burden of proof than
required, and remands for reconsideration in light of the proper burden of proof. The remand is limited to
plaintiff's claims against his former wife. The judge should determine the legal issue raised at the proof hearing,
but not decided: whether plaintiff's waiver of all damages claims in the property settlement agreement at
the time of his divorce bars him from instituting a separate action against his former wife for damages in tort. return to top
USCIS Begins Accepting H-1B Petitions for 2012
US immigration authorities have started accepting applications for H-1B work visas, the most sought-after visa among the IT professionals,
for the fiscal year 2012. USCIS reported that so far it has received approximately 10,400 H-1B petitions
for Fiscal Year (FY) 2012 cap-subject numbers; 5,900 H-1B petitions counting toward the 65,000 cap, and
approximately 4,500 petitions counting against the 20,000 exemption for individuals with advanced degrees
from U.S. institutions. The number actually fell below last year's initial count of 19,100. return to top
February 2011
BIA modifies meaning of "date of admission" for removal purposes
Under current law, immigrants may be deported for committing "crimes of moral turpitude" within five years
of "admission" to the United States. In the prior decision, the BIA ruled that the five-year clock may start
when noncitizens are admitted at the border and restart if and when they later adjust to lawful permanent
resident status from inside the country, thereby reopening the window for deportation. In Matter of Alyazji,
25 I&N Dec. 397 (BIA 2011), the BIA reversed part of its previous ruling and held that the five-year clock does
not restart for noncitizens who were previously admitted at the border before becoming permanent residents.
The BIA thus declared that an alien is deportable under section 237(a)(2)(A)(i) of the Immigration and Nationality
Act, 8 U.S.C. § 1227(a)(2)(A)(i) (2006), only if he (1) is convicted of a crime involving moral turpitude that
was punishable by a term of imprisonment of at least 1 year and (2) was, on the date of the commission of that
crime, present in the United States pursuant to an admission that occurred not more than 5 years earlier.
This does not necessarily require that the date of admission be the alien's first, or even his most recent
admission. But it does mean that there is only one "date of admission" that is relevant to measuring the
statutory 5-year period in relation to a particular offense. Also BIA affirmed that adjustment of
status may constitute an "admission." [Matter of Shanu, 23 I&N Dec. 754 (BIA 2005) overruled in part]. return to top
January 2011
As of January 26, 2011, USCIS has received a sufficient number of petitions to reach the statutory Cap for FY2011.
USCIS has also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced
degree exemption. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an
employment start date in FY2011 that are received after January 26, 2011, but will apply a computer-generated
random selection process to all petitions that are subject to the cap and were received on January 26, 2011.
The current annual cap on the H-1B category is 65,000. However, not all H-1B nonimmigrants are subject to this
annual cap. Up to 6,800 visas may be set aside from the cap during each fiscal year for the H-1B1 program under the
terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this
pool are made available for H-1B use for the next fiscal year. return to top
September 2010
Local Pennsylvania town immigration ordinance declared unconstitutional
Deciding on one of the hottest issues in immigration, the Third U.S. Circuit Court of Appeals has struck down a set
of local ordinances passed in Hazleton, Pa., designed to punish employers and landlords for doing business with "illegal aliens."
In Lozano v. City of Hazleton, the three-judge panel ruled that such local laws are barred by the
Supremacy Clause since they intrude on the federal government's exclusive power to decide whether an alien should be deported, thus
they are in direct conflict with the federal immigration laws. This issue is likely to go up to the U.S. Supreme Court, which
has agreed to review a decision by the Ninth Circuit upholding a similar Arizona statute. return to top
March 2010
In Padilla v. Kentucky, 559 U. S. ___ (2010),the Supreme Court ruled that criminal defense attorneys have
an obligation to inform their clients if a guilty plea carries a risk of removal (deportation). Writing for the majority,
Justice Stevens stated, "Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence
of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand
no less." This decision thus expands the duty of an attorney to advise the defendant concerning the immigration
consequences of taking a plea, immigration consequences of certain criminal convictions, and providing a proper advice. return to top
February 2010
DHS released a report estimating that the unauthorized immigrant population living in the U.S. decreased
to 10.8 million in January 2009 and grew by 27 percent between 2000 and 2009. return to top
January 2010
On January 21, 2010 USCIS announced that eligible Haitian nationals in the U.S. may begin the application process
for Temporary Protected Status (TPS). Details and procedures for applying for TPS are provided in the Federal Register
notice. return to top
HIV status no longer a bar to applying for permanent residence
On January 4, 2010, the ban on HIV-positive individuals seeking to travel or immigrate to U.S. has been lifted. The end of the HIV-ban
is the result of an amendment to §212(a) (1) (A) (I) of the INA, which gave the Secretary of Health and Human Services (HHS)
the authority to remove HIV as a ground of inadmissibility if it was determined that HIV was not a "communicable
disease of public health significance" pursuant to 42 C.F.R. §34.2(b). return to top
April 2011
Trust Terms Question the Right of Adult Adoptees to Take as "Then Living Descendants"
The Matter of the Estate of Regina Mapes (38-3-1727), Chancery Div. - Probate Part, Essex Cy, defines "then living descendants."
Regina Mapes (who died in 1963) created a trust, thus granting life income to her daughter Edith
(who died in 1971). Upon Edith's death, Edith's son Harry became successor life income beneficiary. Harry died in 2009, and upon
his death, the Trust terminated and remaining assets were to be paid to his then-living descendants,
per stirpes, if any. Harry had two biological children: Cynthia and Kristina, who were adopted
by their biological mother's second husband in 1966. Harry specifically excluded his biological children as
beneficiaries of his estate under his Last Will and Testament. Harry adopted four children after they had all
attained the age of majority; the adult adoptees were all the children of Harry's second wife. The issue in this
case is who is a "then living descendant" of Harry for purposes of distribution of remainder trust assets of the
testamentary trust. Because the presumption triggered by the stranger to the adoption doctrine has not been overcome,
the adult adoptees cannot take as "then living descendants" under the trust in the will of Regina Mapes, and the
only rightful remainder beneficiaries of the trust are Harry's two natural-born daughters. return to top
January 2011
On December 17, 2010, President Obama signed the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010. (The Act).
Thus President Bush's income tax cuts have been extended. Also, the Act addresses the Estate, Gift and Generation Skipping Transfer tax laws for 2010, 2011, and 2012.
Under prior law, the federal estate tax did not apply for 2010, but was to be revived in 2011 with $1,000,000 exemption and a top rate of 55%.
The Act, makes the estate tax applicable to persons dying in 2010 and beyond. The exemption amount is set at $5,000,000, to be
indexed for inflation in 2012. return to top
January 2010
At present, the law passed by President Bush in 2001 still remains in effect. That means that as of January 1, 2010
there is no federal estate tax. Before celebrating though, note that lack of the federal estate tax may have a large
capital gains tax consequence. It is very likely that Congress will act soon to reinstate the tax, and make it retroactive to
January 1st. The repeal would likely be only for one year, and then the exemption amount is expected to be 1 Million
dollars in 2011. This development makes it quite challenging to develop an effective estate plan, and will most likely either
invalidate an existing estate plan or it will make it less effective in protecting your family and your wealth. See update in January 2011. return to top
April 2011
Collection Agencies Now Permitted to Go After Municipal Court Debtors
The New Jersey Supreme Court has just approved a set of procedures for the private collection of municipal court debt
pursuant to L. 2009, c. 233. That enactment authorizes municipalities and counties with a central municipal court
to contract with private collection agencies to collect outstanding municipal court debt. These procedures are
intended to provide guidance to municipalities, counties, municipal courts and private collection agencies
consistent with the provisions of the statute. return to top
Another take on the Chun Decision - Drunk Driving
In State v. Holland (14-2-1593) the New Jersey App. Div. held that BAC results derived from an Alcotest
device are not per se inadmissible solely because the device was calibrated with a Control Company temperature probe
instead of the Ertco-Hart thermometer validated by the Supreme Court in State v. Chun, 194 N.J. 54 (2008). Because the record here, however,
was insufficient to support a finding that the digital thermometer used was substantially similar
to the Ertco-Hart device, case was remanded to the Law Division for a consolidated hearing to determine the
reliability of the Control Company probe, including whether differences between the two had any impact at all on
the accuracy of the ultimate results. return to top
August 2010
New Bill Introduced to Rewrite Refusal Statute Following Marquez Decision
In Marquez (see below) the New Jersey Supreme Court held that the statement used to explain to motorists
the consequences of refusal to submit to a chemical breath test must be given in a language the person speaks
or understands. The legislators are free to change the law if they are dissatisfied with the judicial decision,
and if the legislature does not react to the new law, it is presumed that the law has been accepted.
Currently, drivers can only be tested for drugs or alcohol when there is evidence or a clear-cut suspicion
that a driver is under the influence. However, Assemblymen Nelson Albano, D-Cape May, and Paul Moriarty,
D-Gloucester, proposed that any driver involved in a serious motor vehicle accident must either submit to a breath test or give a blood sample to determine if
alcohol or drugs played a role in the accident. The two South Jersey Assembly members also indicated
that they did not agree with the Marquez holding (that refusal paragraph must be in a language that a defendant
understands) and are planning to introduce a contrary language amendment to the Statute. If the proposed legislature
comes through, all drivers involved in accidents that result in death or serious injury would have to submit to
sobriety testing. Those who refuse would be subject to the same penalties as someone convicted of refusal in
relation to a drunken driving charge. First offenders could face fines of up to $1,000 and have their driver's
license suspended for as long as two years. The Law and Public Safety Committee approved the bill in June,
sending it to the full Assembly. But a vote has not yet been scheduled. return to top
July 2010
English is NOT the only language applicable to a drunk driving refusal charge
In State v. Marquez, a case involving a conviction for refusing to submit to a chemical breath test, the
New Jersey Supreme Court held that New Jersey's implied consent law, N.J.S.A. 39:4-50.2, and refusal law,
N.J.S.A. 39:4-50.4a, require proof that an officer requested the motorist to submit to a chemical breath test
and informed the person of the consequences of refusing to do so. The New Jersey Supreme Court also held that
the statement used to explain to motorists the consequences of refusal must be given in a language the person
speaks or understands. For non-English speakers, the Court defers to the MVC to fashion a proper remedy. The
Attorney General has already arranged for certified translated versions of the
standard statement to be prepared in both written and audio form in the nine foreign languages in which
the MVC offers the written driver's test. Because defendant German Marquez was advised of these consequences
in English, and there is no dispute that he did not understand English, his refusal conviction is reversed. return to top
February 2010
The New Jersey State Police promises to change how the officers are to verify Alcotest readings, as the current
method does not comply with the Supreme Court criteria listed in State v. Chun. According to Chun decision,
the breath test results are to be verified by checking whether they fall within an accepted range of tolerance.
At present, New Jersey police uses an online calculator which cuts off numbers after the third decimal place. The
Court in Chun, however, specified that the cut off should be after the fourth decimal place. That truncation
could affect the potential admissibility of the Alcotest reading. return to top
In New Jersey English is the only language applicable to a drunk driving refusal charge - OVERTURNED! See above.
As New Jersey is an "informed consent" state, when you drive on a road, you consent to having your Blood Alcohol
Content (B.A.C.) tested. Before taking a breath sample from a suspected drunken driver, the police officer, however, is
required under the law to read a specific warning statement about the consequences of refusing the test. If the DWI
suspect does not respond with an "unequivocal, affirmative consent" the police officer can deem the NJ DWI suspect's
action or inaction a refusal to take B.A.C. test which will result in a separate DWI Refusal charge. In State v. Marquez
(A-35-09), the NJ Appellate Division ruled that understanding the "refusal warnings" was not part of the statute,
a DWI investigation is a very time sensitive, and it would place too much of a burden on local police officers to
understand and translate a multitude of foreign languages. As such, a non-English speaking person will be read
"refusal warnings" in English only. return to top
September 2010
Persistent mold problem is a basis for constructive eviction
Untill now, there have been very few New Jersey cases dealing with mold infestation as a basis for constructive
eviction. However, recently an Appeals Court upheld a trial judge's ruling that the tenant of a Ringoes apartment
was forced out by a severe mold condition and therefore was entitled to twice the amount of her security deposit.
Most toxic-mold disputes in the state are personal injury suits alleging negligence. Thus, the decision in
Marusiak v. McCall, A-1529, though unpublished and involving pro se parties, provides a useful guidance. return to top
February 2010
Local governments can enact apartment rental regulations stricter than New Jersey's multiple-dwelling statute
The Appellate Division, in Lake Valley Associates v. Twp. of Pemberton (27-2-6682), held that the local
governments are free to enact apartment rental regulations that are stricter than New Jersey's multiple-dwelling
statute. The state Hotel and Multiple Dwelling Law, N.J.S.A. 55:13A-1 to -28, expressly permits measures like a
Pemberton Township ordinance that requires rental-unit owners to submit to registration, licensing and inspections
by the township and requires that tenants be screened for prior convictions and prior litigation in landlord/tenant
court. The panel upheld dismissal of a pre-emption challenge based on the statute's provision that "nothing in this
act shall be construed, to preclude the right of any municipality to adopt and enforce ordinances, or regulations,
more restrictive than this act or any rules or regulations promulgated thereunder." return to top
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