Parenting Time During Sheltering in Place: Communication, Cooperation, and Common Sense

March 26, 2020
Alexandra K. Rigden, Esq. | Cynthia N. Grob, Esq.

The pandemic and its innumerable ripple effects have created many questions about exercising parenting time in light of the stringent restrictions on ‘unnecessary movement’ and social gatherings (not to mention a long list of other things) due to Governor Murphy’s Executive Order No. 107 which was issued on March 21, 2020, and can be found here. Just how far reaching is this Executive Order? If I am supposed to shelter in place, not leave my house, and socially distance, am I even allowed to exercise my parenting time? The short answer (for now, since everything changes day by day!) is, yes. 

Paragraph number 2 of the Executive Order provides that all New Jersey residents shall remain home unless they are engaging in a variety of activities including, at subparagraph number 4,visiting family or other individuals with whom the resident has a close personal relationship such as those for whom the individual is a caretaker.  So, despite the fact that we are all supposed to remain in our homes, this Executive Order carves out an exception which, on its face, would apply to having parenting time with children and leaving your house to effectuate parenting time. Transportation, i.e. being on the roads driving to and from parenting time exchanges, is a simple issue and not precluded based on the text of the Executive Order.  

However, there are many more potential issues in light of the pandemic that cannot be addressed by the Executive Order and come down to the “3 Cs”—communication, cooperation, and common sense, which can sadly be missing between co-parents. But now, they are more important than ever. Hopefully, parties abiding by a parenting time Order are able to communicate with each other and decide whether their parenting time schedule needs to be modified, at least temporarily, in light of the pandemic. For example, maybe it would be in all parties’ interests health-wise to keep the amount of parenting time the same, for example, continue to maintain an existing parenting schedule, but with fewer exchanges. So, instead of a schedule with exchanges a few times a week with a 50/50 schedule, for examples, parties could transition to a one-week-on/one-week-off or even two-week-on/two-week-off schedule so that if there are any issues with the virus, the parent or child has less of a chance of contaminating two homes with the virus. Longer stretches may allow for symptoms to arise so that the parties can determine the best course of action if they do. 

Another issue coming up for clients is what to do when one parent works from home while another parent is still going outside of the home to work in a hospital, for example, or choosing to go into work or out for social reasons. The parent working from home may be understandably apprehensive about exposing the child to a parent who has not been able to, or has chosen not to, shelter in place. While ideally a client would not violate a Court Order for parenting time, clients have to use and be guided by their best judgment in these unprecedented times and balance following a certain parenting time schedule with promoting their children’s best interests and the public’s interest in social distancing and keeping others, especially high risk individuals, safe. Achieving this balance is do-able and far easier if the parties can openly communicate with each other and decide the best course of action when either or both parents are still out in the community. 

During a pandemic (and hopefully this will be the last one in our lifetimes!) strict adherence to a parenting time schedule is likely going to have to fall by the wayside in favor of more global concerns; parenting time schedules may need to be looked at on a day-to-day basis.  For example, a parent who is an every other weekend parent may now need to see the children more, even if just to relieve the ex-spouse who is now home every day with the children and  homeschooling them. Likewise, if a parent is sheltering in place with a child and practicing social distancing, that parent should be flexible in providing the other parent alternative access to parenting time by video or phone conference, and possibly makeup parenting time when this crisis subsides.

Hopefully we can all return to some semblance of normal, or new normal, sooner rather than later. Until then, remember that communication, cooperation, and common sense are key to co-parenting always, but especially during this crisis.  Stay safe and healthy!

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Coronavirus and Co-Parenting

Authored by: Alexandra K. Rigden, Esq.

As if Coronavirus aka COVID19 hasn’t been disruptive enough, this viral nightmare is having unintended consequences for co-parenting and parenting time. Here are some tips for getting through it:

  1. Accept that you will have to interact more with your ex than usual: Just as we have all been forced to accept a variety of quick and unexpected changes as a result of COVID19, the same goes for co-parenting. Where parenting time exchanges may have been done at school (largely allowing you to not have to see or interact your ex), it may now have to be done at your respective homes for at least a few weeks. If a child has a fever, you and your ex will need to talk about the symptoms and an action plan—to quarantine or not, to medicate or not, etc. When it comes to school closings and getting child care coverage, you and your ex will be on the front lines together. Try your best to approach the situation with civility and understanding. At least it won’t last forever!
  2. One size may not fit all: In times of change and uncertainty, your parenting time schedule may have to change a bit. If schools are closed but work is not, you might need your ex to pinch hit on one of ‘your’ parenting time days if you have a big meeting, for example. For a few weeks at least, it will be all hands on deck. You will likely need your ex’s help, and he or she will need yours. If your ex gets sick, you should keep the kids during what would otherwise be your ex’s parenting time, and your ex should agree. Being rigid about the terms of a parenting time order in these circumstances will not serve anyone. Keep your schedule to the extent you can, and then go back to normal again once this madness is over.
  3. Get used to third parties helping out: Step-parents and significant others can be a source of friction for co-parents. But when kids are out of school and people are getting sick, expect that third parties are going to take on a bigger role. In New Jersey, there is very little that can be done, as a general rule, to prevent a step-parent or significant other from being around a child (absent exceptional circumstances). So, if you can’t beat ‘em, join ‘em. You never know…you just might appreciate the help.

Can a Family Court Compel You to Vaccinate Your Child?

Largely eradicated illnesses have been making a comeback, like the recent measles outbreak in four New Jersey counties and in other States. Many blame the resurgence of these illnesses on so-called “anti-vaxxers” who choose not to vaccinate their children. Generally, New Jersey law provides protection for parents who, based on religious or medical reasons, choose not to vaccinate because parents have a fundamental Constitutional right to parent their children.

However, on June 10, 2019, the New Jersey Appellate Division in New Jersey Division of Child Protection and Permanency v. J.B. and C.R. (“J.B. and C.R.”), made clear that a parent’s choice not to vaccinate is not absolute. Of course, as with many judicial decisions, this case begs as many questions as it answers.

In J.B. and C.R., the New Jersey Division of Child Protection and Permanency (“DCPP”—formerly DFYS) had care and custody of two children who had been removed from their parents. The Mother had objected to DCPP having the children vaccinated on grounds of “the Bible and the First Amendment” and “DNA and foreign protein in vaccines which are not healthy.”

After a hearing, including expert testimony from the children’s Board certified pediatrician, the trial court decided that DCPP could have the children vaccinated over the Mother’s objection. The New Jersey Appellate Division affirmed, noting that since a court can order necessary and appropriate medical care for an ill or injured child, that logic would extend to medical care to prevent illnesses. In its final paragraph, the Appellate Division stated: “[a] court of competent jurisdiction has the authority…to order necessary and appropriate medical care for an ill or injured child over the objection of the child’s parents…[w]e perceive no meaningful distinction between the power to order prophylactic medical care in the form of vaccinations…and medical treatment for diseases already contracted. Indeed, the child’s best interests are better served by preventing rather than treating disease.”

Despite the Court’s ruling, New Jersey Courts do not have carte blanche to order unvaccinated children vaccinated. For example, religious and medical exemptions still exist for parents who do not want to vaccinate their children but nonetheless send them to public school.

The circumstances surrounding J.B. and C.R. case involved DCPP, which had care and custody of the children, and that fact was a significant consideration in the Court’s decision. The real question now is how will family courts apply this decision in “normal cases” with typical custody disputes. The case will no doubt have far reaching consequences or benefits—depending on your view—beyond the DCPP sphere. Take for example two divorcing parents, one who wants a child vaccinated and the other who does not. If the matter is brought before a court and a Judge is called to rule, after a hearing with expert testimony from a physician, I see no reason a court could not rely on the decision in J.B. and C.R. to rule in favor of the pro-vaccine parent.

Make It Stop!-Can a Family Court Prevent a Party From Filing Applications?

“Make it stop!” is a familiar plea I hear from family law clients when an ex-spouse or partner files yet another application in Family Court. It can be extremely frustrating to be on the receiving end of the second, third, fourth….tenth….application. Post-judgment family actions can continue for years after the parties are divorced or initially resolved their issues (or so they thought). Especially if there are children in common, litigants will have many years of contact ahead of them.

Unfortunately for those on the receiving end of court filing after court filing, there is no bright line rule about how many times a party can file an application in Family Court. A court generally will not intervene to limit a party’s access to the court absent exceptional circumstances because it is a constitutional right under the Due Process Clause of the 14th Amendment of the United States Constitution. In the New Jersey Appellate Division case of Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010), the Appellate Court held that a complete and blanket denial of a party’s access to the courts without regard for an application’s merits would be a denial of due process. However, all hope is not lost for litigants who feel they have been abused by frivolous or excessive court filings.

A court can, in some instances, limit a litigant’s access to it. But, before any prior restraint on access can be considered, the use of the litigation to harass must be first “objectively determinable.” D’Amore v. D’Amore, 186 N.J. Super. 525, 530 (App. Div. 1982). So, it has to be apparent to a reasonable observer that a claim is being made by one party to harass the other.

Many family law litigants feel they are being attacked or harassed merely because they are back in court, yet again. Still, that does not mean a court filing will rise to the level of harassment. For example, what if a party files an application seeking a change in parenting time, then three months later files an application to take advantage of the child tax credit, and then two months later files an application to compel the other party to contribute to the cost of extracurricular activities? The party on the receiving end of multiple court filings may feel such actions are taken to “get” that person, make him/her incur unnecessary fees or even, to harass. But without more, a reasonable observer likely could not determine that on their face, those filings were harassing in nature. Thus, the court would not limit a litigant’s access to it in those circumstances. And, before taking legally drastic measures to limit a party’s access to the court, a court could try to deter future filings by awarding counsel fees to the responding party or sanctioning the filing party.

Where a pattern of frivolous litigation can be demonstrated, a court can prevent an application from being filed when other available sanctions, such as monetary penalties, proved unsuccessful as a deterrent. Rosenblum v. Borough of Closter, 333 N.J. Super. 385 (App. Div. 2010).  In the event a restraint is imposed on a party, the restraint must apply to the “specifically identified claims which have been determined to fall within one of the recognized categories of objective harassment.” D’Amore, 186 N.J. Super. at 530. A court will not simply issue a blanket denial of a litigant’s access to it.

 

Stock Awards in a Divorce: Yours? Mine? It Depends…..

Oftentimes, you or your spouse receive stock awards from the employer. Those shares will vest over a period of years as opposed to all at once. The question then becomes, what happens to the stock awards which vest after a divorce complaint has been filed if the vesting depends upon you or your spouse’s efforts on the job after the filing? We know have an answer for you. The answer is…it depends.

A recent case from the Appellate Division now tells lawyers that they can argue that if the award was made during the marriage that their clients can keep them free and clear of the spouse’s claim if that stock was issued in whole or in part for future performance. In other words, the stock award must be made for services performed after the complaint for divorce was filed, for future services, and not a deferred compensation for prior efforts.

If you have stock awards, or you believe your spouse has them, you should find out if the stock was intended to vest due to future services and not prior services by looking at the stock plan and find out if the stock grants were designed to maintain a long term interest by the employee in the overall success of the company. Or, you need to determine whether the stock was intended to vest through mere continued employment without consideration of you or your spouse’s level of proficiency.

The Season of Giving (But Not Too Much)

by Alexandra Rigden, Esq., Family Law Practice Group

It’s that time of year again when everyone is focused on giving (and getting) presents. These words of advice may leave you feeling a bit chilly, but here are some caveats to remember about gift giving at the holidays:

If an engagement ends without a resulting marriage—regardless of who called the whole thing off—the giver of the ring is entitled to have it back in New Jersey, and in a majority of other States, because the ring was a “conditional gift” given on the condition a marriage would result. Keep in mind that after you get down on one knee to propose, you may end up on both knees begging for the ring back if you propose on Christmas or Hanukkah, for example. If the receiver wants to keep the ring, he or she could allege that the engagement ring was intended as an unconditional gift—no “I do” required. So, if you give an engagement ring on a traditional gift-giving holiday, it might be harder to refute that it was actually a conditional gift.

What happens to gifts given during the marriage in the event of a divorce? The important thing to remember in this instance is: what’s yours is ours. Marital gifts between spouses are subject to equitable distribution, regardless of who bought the gift and regardless of what was done with the gift. So, it matters not that the soon to be ex-spouse never drove the sports car she bought for her husband; it is still an asset subject to equitable distribution in the event of a divorce.

The moral of this holiday story is—gift wisely.

Self-Defeating Tweeting (and other social media pitfalls)

It’s too bad there isn’t some Miranda-type warning before posting on social media, something along the lines of: what you post online can and will be used against you in a (family) court of law. It seems elementary but it bears repeating: be careful what you post—whether it’s on Twitter, Facebook, Instagram, Snapchat, or even in text messages and emails. Messages and postings frequently end up being used in court filings and even during trials.

I have been involved in many cases where social media postings contribute to the undoing of a client’s case or the opposing party’s case. For example, if a parent claims he or she cannot afford to pay child support but posts on social media outlets about his or her vacations, meals out, and extravagant expenditures, it will undermine that person’s credibility. Incriminating online postings in cohabitation cases by an alimony recipient are also common social media pitfalls. If the alimony recipient claims he or she is not, for example, in a relationship recognized in the couple’s social and family circle (one of the factors for a finding of cohabitation, see N.J.S.A.  2A:34-23), but Facebook is littered with photos of family holiday celebrations, trips, and birthdays, with the new significant other, this information can and will be used against the alimony recipient in court and potentially hurt his or her case.

Another thing to keep in mind is whatever you text or email can end up in a court filing. Does it matter, legally, that ex-spouses/partners trade barbs via text message? Probably not. But, it does not paint the acrimonious and hostile party in a good light for the Court, and Judges are human, too. A party with reasonable positions and a credible and calm demeanor can be undermined by the other party introducing ugly and expletive-filled text messages.

Many clients ask “can he/she ACTUALLY use this stuff against me?” The answer is—absolutely. So, be careful.

Is enforcing payment under religious agreement a “double-dip” if alimony is also awarded?

Written by Daria B. Janka, Esq. & Cynthia N. Grob, Esq.

Download the article PDF (Bulgarian)

American Courts increasingly must deal with how to treat shari’ah law in divorce proceedings.

To quote a Mhar Agreement: “This is a prompt Mahr: One gold coin, sum of money and jewelry to be given prior to marriage, sum of money deferred and to be paid upon the divorce of the parties. This contract is to be governed by Islamic Law.”

Did you know that the First Amendment might not preclude a Court from enforcing a Mahr agreement? How far have the Courts gone on to treat the agreement as a valid prenuptial agreement, or to nullify it, or to incorporate it as part of the equitable distribution division of the assets?

Mahr agreements are Islamic religious agreements entered into prior to marriage and are governed by Shari’ah law.  For many Muslims the Shari’ah is more than “law” it includes the methodology and process of ascertaining divine meaning and as such forms the moral and legal anchor of a Muslim’s existence.  In all interactions, under Shari’ah, a Muslim is governed by the same degree of honesty, good faith, an eye to fairness, social responsibility, and equity essentially they are to live an ethical life seeking to please God.

Many times Mahr agreements contain all elements of a secular contract between the parties.  Mahr is not a dower because it does not involve the bride’s father paying the groom but rather the groom must pay a price for the woman.  If they do not agree to a price, one will be determined by the Court.  In the bluntest terms, in the Islamic world, marriage is more of a contract than a sacrament. Islam emphasizes orthopraxis rather than orthodoxy and theology. The difficulty lies where a particular religion has developed an extensive system of laws.  Those laws govern marriage and divorce, alike.  Under New Jersey jurisprudence, it is a basic established principle that “a contract is a set of promises for the breach of which the law gives a remedy, or performance of which the law in some way recognizes as a duty.” Reinstatement (Second) of Contracts § 1 (1979).

The questions our Courts are faced with are what are Mahr agreements, what did the parties agree to, and is their contract enforceable?  Is a Mahr a prenuptial agreement?  Is it a simple contract?

In the New Jersey case of Odatalla v. Odatalla, 355 N.J. Super 305 (2002), the Court applied a two-prong test to determine whether a religious agreement is enforceable during divorce proceedings. Namely, is the contract: (1) capable of specific performance under “neutral principles of law” and (2) once those “neutral principles of law” are applied, does the agreement in question meet the state’s standards for those principles?  The trial court enforced the dower provision holding that applying neutral principles of law (i.e., the principals of contract law in New Jersey), the Mahr agreement satisfied the all of the elements of a valid civil contract. The court used the evidence adduced from a period prior to the contract to interpret the meaning of the words of the contract and concluded that the ten thousand dollar deferred portion of the Mahr was due upon the dissolution of the marriage under the contract. It is important to note that the Court equitably  distributed marital property, assets and debt and made findings as to alimony in the matter.

This New Jersey Court decision closely followed the New York Court decision in the case of Avitzur v. Avitzur, 58 N.Y.2d 108  (N.Y. 1993) addressing Jewish marital agreement. In Avitzur, the Court held there was nothing in law or public policy that prevented judicial recognition and enforcement of the secular terms of a religious marriage agreement because there was no excessive entanglement between church and state when the court applied neutral principles of contract law to decide the case.  This approach is consistent with Jones v. Wolf, 443 U.S. 595, 9 S. Ct. 3020 (1979) which explained that the “neutral principles of law” approach that allows agreements to be enforced based upon neutral principles of law as opposed to religious doctrine.

This approach, however, could run afoul of the parol evidence rule, which bars the introduction of extrinsic evidence to clarify the meaning of a contract, and is in essence rewriting agreements. The parol evidence rule of contract law stands for the principle that parol evidence cannot be introduced to create, vary or contradict a term of a contract not otherwise present in the written agreement. The overreaching use of parol evidence undermines the certainty of the contract and invites problems with the statute of frauds, which requires agreements to be in writing in order to be enforceable. The Odatalla Court, however, used an exception of the parol evidence rule, which stands for the preposition that evidence can be introduced to interpret the meaning of the written words of a contract.

            To avoid unnecessary confusion with regard to agreements which are likely to be enforced, you may want to contact an attorney to determine whether additional language should be included in your religious contract to avoid “double dipping”. We are taking the time to write about this to show you that entering into an agreement for religious purpose is far from a trivial question. You must understand how a religious agreement may affect your future rights. We, at Cooper Levenson, P.A., have earned a recognition as a specialized and experienced law firm in the representation of  clients in various areas, including contract and family law.