The Ten Most Important Family Law Cases Reported in 2017
By: John P. Paone, Jr.


In the year 2017, Judge Marie Lihotz retired from the Appellate Division.  It is not an understatement to say that there have been only a few jurists (Justice Virginia A. Long immediately comes to mind) who have had a greater impact on the development of the case law for our practice.  In 2017 alone, Judge Lihotz authored three (3) opinions which are included in the Top Ten.  The following represents only the reported family law opinions that Judge Lihotz authored during her time on the bench:

  1. In re R.S., 448 N.J. Super. 374 (App. Div. 2017)
  2. R.G. v. R.G., 449 N.J. Super. 208 (App. Div. 2017)
  3. Ricci v. Ricci, 448 N.J. Super. 546 (App. Div. 2017)
  4. Slutsky v. Slutsky, 451 N.J. Super. 332 (App. Div. 2017)
  5. In re Adoption of a Child ex rel. M.E.B., 444 N.J. Super. 83 (App. Div. 2016)
  6. Lall v. Shivani, 448 N.J. Super. 38 (App. Div. 2016)
  7. Landers v. Landers, 444 N.J. Super. 315 (App. Div. 2016)
  8. Spangenberg v. Kolakowski, 442 N.J. Super. 529 (App. Div. 2015)
  9. Elrom v. Elrom, 439 N.J. Super. 424 (App. Div. 2015)
  10. In re I.N.W., 435 N.J. Super. 130 (App. Div. 2014)
  11. In re S.I., 437 N.J. Super. 142 (App. Div. 2014)
  12. Gnall v. Gnall, 432 N.J. Super. 129 (App. Div. 2013)
  13. Minkowitz v. Israeli, 433 N.J. Super. 111 (App. Div. 2013)
  14. Reese v. Weis, 430 N.J. Super. 552 (App. Div. 2013)
  15. D.N. v. K.M., 429 N.J. Super. 592 (App. Div. 2012)
  16. Clark v. Clark, 429 N.J. Super. 61 (App. Div. 2012)
  17. Ducey v. Ducey, 424 N.J. Super. 68 (App. Div. 2012)
  18. In re Guardianship of A.T.D, 428 N.J. Super. 451 (App. Div. 2012)
  19. Jacoby v. Jacoby, 427 N.J. Super. 109 (App. Div. 2012)
  20. Milne v. Goldenberg, 428 N.J. Super. 184 (App. Div. 2012)
  21. Sajjad v. Cheema, 428 N.J. Super. 160 (App. Div. 2012)
  22. Barr v. Barr, 418 N.J. Super. 18 (App. Div. 2011)
  23. In re B., 422 N.J. Super. 583 (App. Div. 2011)
  24. In re E.C., 423 N.J. Super. 259 (App. Div. 2011)
  25. Colca v. Anson, 413 N.J. Super. 405 (App. Div. 2010)
  26. In re J.B., J.D. and J.D., 417 N.J. Super. 1 (App. Div.  2010)
  27. In re Guardianship of M.S., 417 N.J. Super. 228 (App. Div. 2010)
  28. In re Guardianship of R.V., 414 N.J. Super. 423 (App. Div. 2010)
  29. In re K.A.N., J.B. and K.B., 412 N.J. Super. 593 (App. Div. 2010)
  30. Parish v. Parish, 412 N.J. Super. 39 (App. Div. 2010)
  31. State ex rel. P.M.P, 404 N.J. Super. 69 (App. Div. 2008)
  32. Genovese v. Genovese, 392 N.J. Super. 215 (App. Div. 2007)
  33. Finamore v. Aronson, 382 N.J. Super. 514 (App. Div. 2006)
  34. In re A.S., 388 N.J. Super. 521 (App. Div. 2006)
  35. L.D. v. K.D., 315 N.J. Super. 71 (Ch. Div. 1998)

The Top Ten will miss Judge Lihotz and wishes her well on her new career as an arbitrator and mediator.

This past year, although not many opinions were published, those making it to the law books turned out to be quite important.  The Supreme Court in Bisbing v. Bisbing changed the standard for child relocation and in State v. Burkert, harassment based on expressive activity alone was defined.  The Appellate Division and Superior Court addressed other major issues including the valuation of a spouse’s interest in a law firm for purposes of equitable distribution, standing of a child to intervene on the question of emancipation, name change for a transgender child and the new world of service of process by Facebook.

The following are my selections for the ten most important family law cases reported in 2017.  

Bisbing v. Bisbing, 230 N.J. 309 (2017)


Issue: Does the Baures standard continue to serve as the benchmark for contested relocation cases in which the parent seeking to move the children is the custodial parent?

Holding: No. The New Jersey Supreme Court recognizes a “special justification” in order to abandon the standard it promulgated in Baures v. Lewis, 167 N.J. 91 (2001), such that courts in New Jersey are now to be guided by the best interests analysis for all contested relocation cases in which parents share joint legal custody.  By conducting a best interests analysis, family courts will then be able to determine “cause” under N.J.S.A. 9:2-2 so as to assess whether a relocation is being initiated in good faith.  

Discussion: The parties in this action were married in 2005 and two children were born of the marriage.  The plaintiff, Jaime Bisbing, and defendant, Glenn Bisbing, were both business professionals employed in lucrative positions.  The parties ultimately separated in August 2013 and in November of that year, the plaintiff began a long-distance relationship with a resident from Utah.

On March 8, 2014, a MSA was executed between the plaintiff and the defendant.  While the parties agreed to joint legal custody over the children, the plaintiff was designated the primary residential custodian.  The plaintiff received residential custody on the condition that she would not relocate out of state.  

The MSA also included a non-relocation provision under Article 1.9 that prohibited either party from relocating more than 20 miles from the other without consent.  The provision also stated that if a job necessitated a move, the parties would discuss the possibility of relocation together.  Pursuant to N.J.S.A. 9:2-2, children of divorced parents shall not be moved from New Jersey without the consent of both parties unless the court otherwise orders.  

After the MSA was incorporated in the Final Judgment of Divorce on April 16, 2014, the defendant remained an instrumental figure in the children’s lives.  He participated extensively in recreational activities with the children such as coaching their soccer team and regularly attending school events.  

Thereafter, on January 8, 2015, the plaintiff telephoned the defendant to inform him of her intentions to marry a resident from Utah and relocate there with the two children.  The defendant responded that he had no issue with the plaintiff moving out of state provided that the two children remained in New Jersey.  

Because the parties were unable to resolve the relocation issue amicably, the plaintiff filed a motion with the trial court on March 16, 2015 seeking to relocate with the children to Utah.  Without holding a plenary hearing, the trial court granted the plaintiff’s motion on the condition that a suitable parenting time schedule be negotiated with the defendant through mediation.  

In July 2015, the plaintiff and the two children left for what was described as a “vacation to Utah.”  Shortly thereafter, the plaintiff and children permanently moved to Utah.  The defendant appealed the April 24, 2015 order of the trial court which failed to enforce the non-relocation provision of the MSA without conducting a plenary hearing on the issue.

The New Jersey Appellate Division, in reversing the order granting relocation and remanding the matter back to the trial court, questioned whether the plaintiff agreed to the non-relocation provision in the MSA in good faith.  More specifically, there were concerns that the plaintiff negotiated the custody provisions of the MSA so as to place herself in a superior position in a future relocation battle with the defendant by relying on the standard espoused in Baures v. Lewis, 167 N.J. 91, 116-18 (2001), which accords significant weight to the decisions of the custodial parent.  Baures requires the moving party to prove by a preponderance of the evidence that (1) there is a good faith reason for the move and (2) that the move will not be inimical to the child’s best interests.  

The New Jersey Supreme Court granted both the plaintiff’s petition for certification and the application of the New Jersey State Bar Association to appear amicus curiae.  As the thrust of the plaintiff’s argument, she states that the Appellate Division fashioned a legal standard which was vague and improper.  Specifically, the plaintiff contends that the Appellate Division should have relied on the Baures test in reviewing the merits of her application.  The plaintiff additionally claims that by denying her the ability to relocate to Utah, the lower courts have infringed on her constitutional right to travel.

Conversely, the defendant argues that the Court should abide by the terms of the non-relocation agreement as set forth in the MSA.  The defendant also claims that the decision made by the Appellate Division to remand the matter back to the trial court in order to review whether the plaintiff bargained for primary physical custody in good faith was appropriate because it is designed to eliminate a parent’s incentive to bargain for the status of parent of primary residence in anticipation of a planned relocation.    


Justice Patterson, writing for a unanimous New Jersey Supreme Court modified the judgment of the Appellate Division and ruled that the Baures test was no longer the polestar for addressing relocation disputes.  Rather, the Court pronounced that family courts in New Jersey are required to review relocation cases based on a best interests analysis.  Due to the fact that a custodial arrangement is potentially dispositive in a Baures context, the Court found that collateral disputes would inevitably arise between the parties regarding whether there was good faith in executing an agreement regarding custody.  The Court was also concerned that the threshold determination under Baures would engender serious conflict about the bad faith conduct of parties when negotiating custody.  This would be contrary to the purpose of the custody statute under N.J.S.A. 9:2-4 which is designed to promote a child’s best interests.  

In determining that a best interest test must be the applicable standard going forward, the Court noted that this test encourages parties to select a primary custodial parents based solely on the needs of the child and not for any reason based on improper motives.  The Court also recognized that when it decided Baures, it did not intend to deviate from the core principle of the custody statute which is to serve the best interests of the child nor did it intend to dismiss the legislative policy behind this statute that parents have equal rights in any custody dispute involving a minor child.  The Court further concluded that the best interests standard is the most viable framework when deciding relocation cases as it affords both parents the right to be equally respected in custody determinations and puts the needs of the child first.   


The Court also rejected the plaintiff’s argument that her due process right to travel was violated based on the constraints of the custody statute.  The plaintiff’s right to travel is only limited if the child’s or non-custodial parent’s interests are jeopardized as a result of relocation.  The U.S. Constitution in fact does not preclude states from imposing legal consequences for parties who choose to leave a particular jurisdiction.  Thus, any obstruction imposed by the custody statute which relates to the plaintiff’s right to travel with the children to Utah, a clear departure from the custody arrangement, does not undercut the plaintiff’s own fundamental right to travel.

Observation:  The legal argument between the parties was whether the Baures standard applied or whether because the custody agreement (which prohibited the parties from moving more than 20 miles from each other) was entered into in bad faith, the best interest standard should apply as per earlier case law.  The Court sidestepped that legal argument and used this case as an opportunity to effectively overrule Baures, so that where the parties share legal custody, in order to establish “cause” under N.J.S.A. 9:2-2 to leave the state, the party relocating has the burden to establish that it is in the child’s best interest to grant removal.  In this way, it can be said that the court placed the moving and objecting parties on equal footing in a child relocation dispute.

After Bisbing, being designated PPR doesn’t necessarily give a party a leg up in removal actions as long as the parties have joint legal custody.  Now, we are no longer counting overnights and parenting time to determine which standard applies. Now, we no longer have to read the minds of litigants to determine whether a party anticipated a relocation when the custody agreement was negotiated.  Now, the single polestar is the best interests of the child and the burden is squarely on the shoulders of the party seeking to leave the state.

In determining what is in the best interests of the child, the Court makes clear that practitioners need to look to N.J.S.A. 9:2-4(c) and the factors used in determining custody as well as any other evidence that may have bearing on the issue of relocation.

It is an interesting observation that in less than one generation, relocation cases have gone from  Cooper v. Cooper, 99 N.J. 42 (1984) (requiring the relocating party to show a real advantage to that person in the move and that relocation would not be inimical to the best interest of the child); to Holder v. Polanski, 111 N.J. 344 (1988) (requiring the relocating party to show a good faith reason for the relocation and that the relocation would not be inimical to the best interest of the child or adversely affect the visitation rights of the noncustodial parent); to Baures v. Lewis, 167 N.J. 91 (2001) (requiring first a determination of whether the objecting parent shares physical custody and if not, the relocating party would only need to show a good faith reason for the move and that the move will not be inimical to the child’s best interest); and now to Bisbing.  That is indeed not a common occurrence in the case law.

Bisbing represents a rejection of the social science relied upon in Baures that claimed universally “what is good for the custodial parent is good for the child.”  Indeed, the Court referenced several social science research articles to conclude that there is no consensus on the subject and that relocation may affect children in different ways.  Practitioners may observe, how did all of the social science evidence get into the record in a matter that was decided by the trial court without a plenary hearing?  Indeed, the Supreme Court directed that in the remand of this matter, the trial court hold a plenary hearing to determine the relocation issue.  

In its wake, Bisbing raises several unanswered questions.  What does Bisbing mean for agreements not to relocate?  Have they gone the way of clauses to waive child support (i.e. they are unenforceable when it relates to the best interest of the child?)

What is the standard when the parties do not have joint legal custody and the custodial parent seeks to relocate?  What is the standard for intrastate removal cases (e.g. from Middlesex County to Sussex County) where previously the Baures standard was utilized to determine relocation?  It will be up to practitioners to raise these issues in future cases.

State v. Burkert, ___ N.J. ___ (2017)


Issue: Does the language in New Jersey’s harassment statute, pursuant to N.J.S.A. 2C:33-4(c), specifically as it concerns communications which “alarm” or “seriously annoy” another person, violate federal and state constitutional liberties insofar as it seeks to criminalize an individual’s freedom of speech?

Holding: No.  Despite the broadly worded language of the statute, in order to ensure that the criminal harassment statute does not run afoul of the constitutional guarantees of free speech, acts to “alarm” or “seriously annoy” must be interpreted as repeated communications directed at an individual which reasonably places them in fear for their safety or security or that intolerably interferes with that individual’s reasonable expectation of privacy.

Issue: Did the conduct displayed by the defendant which was meant to insult and humiliate the victim rise to the level of criminal harassment?

Holding: No.  While it is clear that the defendant’s expressive activity by circulating the flyers was boorish, unprofessional, and inappropriate, they do not amount to criminal harassment as there is nothing to suggest that it threatened the victim’s safety or that these were repeated communications which intolerably interfered with the victim’s expectation of privacy.

Discussion: William Burkert, hereinafter “defendant,” and Gerald Halton were employed as corrections officers and held positions in separate unions which represented different classes of officers.  Although Halton and the defendant had originally been friends at their place of work, a rift developed in their relationship after the defendant read online comments by Halton’s wife that he believed were intended to insult him and his family.  After a period of time, the defendant felt the need to retaliate against Halton by downloading a wedding picture of Halton and his wife and creating flyers using their wedding photograph to inscribe crude and offensive language about Halton.  Numerous flyers were found scattered in the employee parking garage and the locker room of the Union County Jail.  As a result of the incident, Halton expressed concern for his safety and received psychological counseling and treatment.  The defendant took responsibility for downloading the picture when questioned during the county’s investigation, but he denied that he had circulated any of the flyers.    

Halton thereafter filed three complaints in the municipal court against the defendant which charges him with criminal harassment, pursuant to N.J.S.A. 2C:33-4(c), making it illegal to engage in a “course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy [a] person.”  Although the municipal court and ultimately the Law Division during a trial de novo found that the defendant was guilty on two counts of criminal harassment and imposed statutory fines and assessments, the New Jersey Appellate Division reversed the rulings handed down by the lower courts.  The Appellate Division determined that although the writings made by the defendant about Halton and his wife were derogatory and unprofessional, they do not constitute criminal harassment in light of the constitutional safeguards regarding freedom of speech.  

Upon the New Jersey Supreme Court granting certification to hear this matter, the Court affirmed the decision of the New Jersey Appellate Division which overturned the defendant’s conviction.  The Court found that while the comments published on the flyers were clearly offensive and inappropriate in the workplace, harassment is designed to curb illegal conduct rather than chill free speech.  Although the State argued that the defendant’s course of conduct was alarming and injurious because he created the flyers in lieu of physically assaulting Halton, the Court was unpersuaded that the legislature intended to criminalize this type of speech.  The Court observed the dichotomy between subsection (a) and section (c) of the statute as the former regulates “communications” and “language” while the latter addresses “conduct” and “acts.”  It maintained that although a course of alarming conduct or repeatedly committed acts may occur through communications alone, it is unclear that the legislature envisioned offensive speech falling under the scope of N.J.S.A. 2C:33-4(c).  

The majority opinion for the Court also relied on the case of State v. Hoffman, 149 N.J. 564 (1997) which stands for the proposition that the essence of the harassment statute is to punish conduct, not communication.  The Hoffman court clarified that the purpose of subsection (c) is to address forms of conduct not covered in subsection (a).  For example, if a person were to ring a former companion’s doorbell at 3:00 p.m. on a Sunday, flash bright lights into her windows on Monday at 6:00 p.m., throw tomatoes into her front door on Tuesday at 6:30 p.m. and repeated the same conduct over a two-week span then it may be reasonable for a judge to find that criminal harassment occurred under subsection (c).

The Court noted that any law which seeks to regulate communication or expressive activity must ensure that there is a bright line as to where free speech ends and criminal conduct begins.  Based on this notion, the broadly worded standard set forth in N.J.S.A. 2C:33-4(c) should be interpreted narrowly so that any conduct to alarm or seriously annoy another person, falls within limited categories of speech not covered by the First Amendment such as speech which is integral to criminal conduct, speech that physically threatens or terrorizes another, speech which is intended to incite unlawful conduct, or speech that invades a person’s reasonable expectation of privacy in an intolerable manner.

The Court further concluded that the defendant’s actions could not be considered harassment as insults, crude remarks, and offensive expressions which standing alone do not subject an individual to criminal lawsuit.  However, it made clear that the defendant’s exoneration on this charge does not render him immune from collateral consequences stemming from his actions such as workplace discipline or a civil lawsuit for defamation.  

Observation:  While Burkert is not a family law case, it has vast implications for our domestic violence law.  In domestic violence cases, it is not uncommon for complaints to be based on pure expressive activity.  Burkert makes clear that a commitment to free speech requires that we tolerate communication that we strongly disapprove – “speech that we hate – speech that is crude, obnoxious and boorish.”  I predict you will never participate in a domestic violence hearing where words alone form the basis of the alleged impermissible conduct without reading Burkert first.  After Burkert, pure expressive activity will not justify a finding of harassment unless it can be demonstrated that the repeated communications were directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy.


Slutsky v. Slutsky, 451 N.J. Super. 332 (App. Div. 2017)

Issue: Did the trial court fail to make specific findings of fact regarding the component of goodwill associated with the defendant’s partnership interest in his law firm and which was subject to equitable distribution?

Holding: Yes.  Although the trial court properly concluded that goodwill existed as a component in order to value the defendant’s partnership interest, it neglected to make the necessary factual findings regarding the value of the defendant’s goodwill and the amount therefrom which was subject to equitable distribution.  

Discussion: The plaintiff and defendant were involved in a thirty (30) year marriage which ultimately culminated in a Complaint for Divorce in which the plaintiff sought various forms of relief including alimony, equitable distribution, satisfaction of debts and counsel fees and costs.  At the conclusion of trial, the plaintiff challenged the trial court’s ruling regarding the valuation and equitable distribution of his partnership interest in his law firm.

By way of background, the defendant had joined his law firm in 1978 when he graduated from Harvard Law School.  The defendant was named an equity partner at the firm in January 1984 and he owned one share of stock.  The value of the defendant’s stock is governed by the firm’s shareholder’s agreement which requires the firm to buy back the stock in the event he no longer is employed by the firm.

The firm’s compensation system to determine the equity partner’s interest in the firm is known as the termination credit account (TCA).  During the year, partners received a draw and benefits, such as pension contributions, professional dues, and medical claims, which would reduce the amount of a partner’s TCA.  After application of these expenses, the firm’s compensation committee would then calculate the firm’s excess income based on a formula which takes into consideration certain variables such as billable hours, collection of billings, and origination of new business.

The record was undisputed at trial that the defendant’s workload was not originated by him, but by his fellow partners.  However, the defendant worked many billable hours in a highly specialized area of practice.  The defendant also received a bi-monthly draw and quarterly distribution based on the allocation of the firm’s year-end net income.  

Additionally important, the defendant had reached the senior status age of sixty five at his firm.  If a partner moved to senior status, the TCA would not increase by future allocations, and charges against the account would cause it to decrease.  After an equity partner left the firm, the amount of their TCA would be paid out over four years.  Further, upon the defendant’s completion of thirty years of partnership with the firm, a discretionary bonus would vest in which the defendant would become eligible to receive twenty-five percent of the average salary earned by him during his five highest grossing years of his final ten years of service.  The defendant had reached this vesting period on December 31, 2013, prior to trial in this matter.

The plaintiff’s expert, Ilan Hirschfeld, prepared a calculation of value that took into consideration the goodwill value that the defendant maintained with his firm.  Hirschfeld testified at trial that in order to evaluate goodwill, he examined the reasonable compensation of an attorney with the defendant’s age and experience.  He then projected the defendant’s earnings until reaching a reasonable retirement age of seventy and took into consideration adjustments for taxes and discounting the defendant’s earnings to present value.  However, during cross-examination and redirect, Hirschfeld made various revisions to his report based on challenges asserted by the defendant’s expert, Thomas Hoberman.  Hirschfeld ultimately concluded that the value of the defendant’s interest in his firm was $1,185,304.00.

Contrary to the findings by Hirschfeld, Hoberman opined that there was no separate goodwill interest in the defendant’s firm ownership.  Thus, Hoberman argued that the TCA amount only consisted of deductions for the partner distributions and appreciation in its value for billable hours, hourly rate of compensation, and average billings.  Hoberman concluded that the defendant would only realize $285,000.00 after taxes for the TCA balance.  

The trial judge found it incredible that the defendant’s firm had no goodwill value and without considering the revisions that Hirschfeld made in his initial report, accepted Hirschfeld’s original unadjusted value of the TCA and the goodwill which was $1,198,077.00.  After reducing the amount by $300,000.00 for a debt which the defendant incurred due to a restricting of his firm, the judge proceeded to divide the remaining balance 50/50 between the parties.   

The defendant thereafter moved to appeal the rulings by the trial court which determined that goodwill was to be calculated as part of the defendant’s equity interest and that the plaintiff’s was entitled to a fifty percent stake of his interest in the firm.  The defendant claimed that the Court abused its discretion based on a misunderstanding of the facts and a misapplication of the law.

Judge Lihotz writing for the Appellate Division overturned the unsupported conclusions made by the trial court stating that the trial court merely affirmed the original unadjusted calculations by the plaintiff’s expert and overlooked the fact that there were several modifications and revisions by the expert as to his calculations of the TCA and goodwill components.  Specifically, the appellate panel found that the trial judge’s findings were conclusory as there was no explanation offered for why the challenges made by Hoberman as to the value allocated by Hirschfeld were unwarranted.  

The Appellate Division explained that more detailed findings of fact by the trial court were necessary as this is a matrimonial action which involves a complex valuation methodology for an equity partner in a large firm who is not responsible for originations and is bound by the firm’s shareholder agreement.  Although each expert offered an opinion for reasonable compensation by the defendant, the lower court failed to distinguish the two reports and some of the flaws which were addressed at length at trial.  

It was also evident that there was a misunderstanding by the trial court that Hoberman’s report dismissed the notion of goodwill in that same did not exist.  Rather, Hoberman asserted in his report that the TCA accounted for goodwill and based on his research, the defendant’s compensation was solely determined by his earning capacity.  There was further conflicting evidence presented at trial as to Hirschfeld’s calculations, notably whether the defendant would become a salaried employee at the age of sixty-five in which case utilizing a five-year average for compensation would be inappropriate.  

As a final point of criticism in upending the decision, the Appellate Division added that once value was established, the trial judge never undertook an analysis under N.J.S.A. 34-23.1 in order to determine the extent of the plaintiff’s equitable distribution.  The Appellate Division noted that since the trial judge did not apply the factors listed in the equitable distribution statute, the Court was obligated to set aside the lower court’s ruling.  

Observation:  Kudos to Judge Lihotz and the Appellate Division for publishing an equitable distribution opinion…although equitable distribution has existed in New Jersey since the early 1970s, for some reason reported equitable distribution cases have been a somewhat rare occurrence.

In Slutsky, the Appellate Division rejected the Husband’s argument that including goodwill in the valuation of a practice is a double dip as the same money is used to determine and pay alimony.  Relying on Steneken v. Steneken, the court restated that alimony and equitable distribution serve two separate purposes so it is not correct that a credit on one side must result in a debit on the other side.

Judge Lihotz rejected the trial court’s knee-jerk 50%/50% equitable distribution award of the value of the Husband’s practice.  In addition to mandating that the trial court review the equitable distribution factors, “a measure of consideration must be given to the lack of intrinsic value associated with any amount determined as individual goodwill.”  Translation:  goodwill is not like a bank account, there are risks involved in determining the value of non-tangible assets and those risks should be reflected in the equitable distribution award.

Finally, it appears that how you value a law practice may depend on the practice itself.  Judge Lihotz writes “a nuanced valuation methodology is required because defendant is an equity partner in a larger firm, who generally is not responsible for originations, and who is bound by the firm policies and shareholder agreement.”  In this case, an analysis of good will “must evaluate the firm’s shareholder’s agreement to determine whether it is an appropriate measure of the total firm value.”  In large firms where the individual attorney has no control and is close to retirement age, it stands to reason that the provisions of a shareholder agreement may have greater influence in the valuation of the attorney’s interest in the firm.




Ricci v. Ricci, 448 N.J. Super. 546 (App. Div. 2017)

Issue: Does a 23 year old child have standing to intervene as a third party in a dissolution action where the parents seek to emancipate the child and terminate child support?

Holding: Yes.  Where it can be shown that the child has an interest in the subject matter of the litigation and has an inability to protect that interest, they have standing to intervene.  

Issue: May a family court conduct a Newburgh hearing to determine the extent of a parent’s college contributions for their child without first reviewing the facts in order to determine whether a child is emancipated?

Holding: No.  Emancipation is a legal determination which must be resolved prior to awarding support, including any payment of college costs that may be made by the parents.  

Discussion: The plaintiff-mother and the defendant-father in this action were divorced when their daughter, Caitlyn, was four years old.  As part of the parties’ Marital Settlement Agreement, the plaintiff was the primary residential custodian for Caitlyn while the defendant exercised parenting time and paid child support.  The parents shared decision-making responsibilities at all times involving Caitlyn’s care, including any health, welfare, and educational issues regarding their daughter.

Upon Caitlyn graduating from high school in June 2012, Caitlyn enrolled part-time in community college.  During this period, discord and estrangement between Caitlyn and her parents ensued culminating with Caitlyn leaving the plaintiff’s home permanently in February 2013 to move in with her paternal grandparents.  As a result of Caitlyn leaving the plaintiff’s home, the plaintiff and defendant executed a consent order agreeing to emancipate Caitlyn and further terminating the defendant’s obligation to pay child support.  

In response to the consent order extinguishing her support, Caitlyn moved to intervene in her parents’ dissolution action.  Notably, Caitlyn requested before the Family Part that the prior consent order setting forth her emancipation be vacated and that her parents be compelled to make payment towards her community college costs for the 2013-2014 academic year and for her costs associated with attending Montclair State University beginning in fall 2014.  

The record in the trial court conflicted with various viewpoints by the parties as to the parent-child relationship.  The parents expressed their unconditional love of Caitlyn and their willingness to mend any problems and issues with the family.  The defendant was more specific in asserting that Caitlyn’s difficulties at school and with the family stemmed from involvement with alcohol and drugs and episodes of impulsive behavior.

Caitlyn expressed her belief that she did not run to her grandparents in defiance.  Instead, she claimed that her parents kicked her out after she returned from attending a Disney College program in Florida.  However, the record is also undisputed that the parents had fully paid for Caitlyn to attend the Disney College program, but that she was expelled after one month due to underage drinking as the host of a party in the dorms.

After a litany of motion practice by the parties, the trial court ultimately determined that Caitlyn had standing to intervene in her parents’ dissolution litigation and further ordered the plaintiff and defendant to satisfy her university tuition payments 40% and 60% respectively.  The court also scheduled a plenary hearing to determine reimbursement of community college costs and ordered the parties to mediate any modification requests or college cost issues going forward.  

Judge Lihotz writing for the Appellate Division affirmed the trial court’s ruling in part, but remanded for further proceedings on the emancipation claim raised by the plaintiff.  In partially affirming the trial court, the Appellate Division declared that Caitlyn had standing to intervene in the case as she had a direct interest in challenging the position of her parents that she was emancipated and no longer in need of her parents’ financial support.

Turning to the issue of emancipation, the Appellate Division emphasized the importance of family courts to first consider whether a child is actually emancipated before engaging in a college contributions analysis as outlined in Newburgh v. Arrigo, 88 N.J. 529 (1982).  Emancipation is a legal issue which occurs when the fundamental dependency between a parent and child ends.  New Jersey courts recognize that where there is a judicial decree of emancipation, it is undisputed that no child support can become due.  However, the Appellate Division observed that family courts must engage in a fact-sensitive analysis to determine whether there is a basis to emancipate.

The appellate panel concluded that the lower court abused its discretion by failing to adjudicate the threshold question of emancipation.  In fact, despite evidence being introduced by both the plaintiff and defendant which revealed that Caitlyn rejected parental influence on multiple occasions due to discipline and performance issues, the lower court failed to make a finding as to whether Caitlyn was now beyond the sphere of influence and therefore emancipated.  

Notwithstanding error by the trial court, it was determined that there were genuine issues of material fact as to why Caitlin left her parents’ home, whether she diligently pursued her postsecondary education, whether she was a full-time student, and whether she rejected any reasonable parental influence requiring her to act responsibly.  The appellate court acknowledged that these issues could not be decided based on a mere review of factual certifications.  Thus, in order to resolve these fact sensitive questions and to make proper credibility determinations, the Appellate Division ordered a plenary hearing to be scheduled upon the matter being remanded to the trial court.

Observation:  Now we have a reported case settling the question of the child’s right to intervene in those cases where the parents enter into a Consent Order for emancipation, over the child’s objection.

The court makes clear that before contribution to college is determined, the tribunal must first address the issue of emancipation.  In prior cases, the court has held that a child who leaves the sphere of influence of her parents is not unemancipated.  Thus, in cases where a child is over 18, is separated from her parents, and takes legal action to intervene in a matter where the parents are in agreement, it will likely be difficult to establish that the child has not gone beyond the sphere of influence of her parents.  As stated by Judge Lihotz, “a child’s decision to seriously pursue a college education alone does not create the required dependency allowing him or her to be unemancipated…an independent child choosing her own path is not entitled to support because support is due only to a child who is not emancipated.”

Hopefully, this case will tamp down the concerns of those in the New Jersey Legislature who have in the past advocated laws barring or limiting contribution to college in response to what has been perceived as the courts placing unreasonable burdens upon divorced parents.


Howell v. Howell, 581 U.S. ___ (2017)

Issue: May a state court order a veteran to indemnify their spouse in a divorce action where the veteran does not declare their waiver of military retirement pay for disability benefits under the Uniformed Service Former Spouses’ Protection Act, 10 U.S.C. §1408, until after the divorce is finalized?

Holding: No.  In relying on the case of Mansell v. Mansell, 490 U.S. 581 (1989), the U.S. Supreme Court declared that federal law pre-empts the States from treating waived military retirement pay as vested property which is subject to division in a divorce.    

Discussion: The parties in this matter were divorced in 1991 while the husband, John Howell, was serving in the Air Force.  As part of their divorce decree, the wife, Sandra Howell, was awarded 50% of her husband’s military pension upon its commencement.  The husband retired from the Air Force in 1992 and the wife thereafter began to receive benefits from her husband’s military pension.   

The Department of Veterans Affairs (VA) was notified thirteen (13) years later that the husband was 20% disabled due to a service-related injury.  As a result of same, the husband elected to partially waive his military retirement pay which compelled him to forego approximately $250.00 of the $1,500.00 in pension benefits that he previously shared with his wife in order to begin receiving disability.  This waiver by the husband consequently reduced the wife’s portion of his pension by $125.00.  

Due to the wife’s pension decrease, she petitioned an Arizona family court to enforce the original divorce decree and requested that her one-half share of the retirement pension be restored.  The family court held that the original divorce decree had given the wife a vested interest in the pension such that she was entitled to receive her 50% of the military pension notwithstanding any future offset due to the husband’s disability.  

This decision by the family court was ultimately affirmed by the Arizona Supreme Court who found that the order by the family court was proper in that it did not require the husband to rescind his waiver or direct him to pay any disability benefits to his wife.  Rather, the Arizona Supreme Court made clear that the order simply required that the husband reimburse the wife for reducing her share of his retirement pay.  Additionally, the high court indicated that because the husband made his waiver after the divorce decree was entered, the federal law as promulgated in Mansell was not controlling and thus the family court’s reimbursement order was valid.  

The U.S. Supreme Court accepted certiorari in this matter and reviewed the applicable case law in addition to the findings which were made by the lower courts.  In its concurring opinion, the U.S. Supreme Court reversed the decision by the Arizona Supreme Court by a vote of 8-0 and concluded that the order to reimburse the wife for her portion of the military retirement benefits did not pass constitutional muster as it improperly pre-empted federal law.

In addressing its reasons for reversal, the Court noted that the effort by the Arizona Supreme Court to distinguish the Mansell case from the instant matter was uncompelling.  In Mansell, the husband and wife had divorced in California.  The parties’ property settlement agreement provided that the husband would pay 50 percent of his total military retirement pay including any portion that would be waived in the future in the event that husband was eligible to receive retirement benefits.  

Although the Arizona Supreme Court thought it to be highly relevant that the husband in Mansell declared his waiver of benefits before the divorce decree was entered compared to the present matter where the husband waited thirteen years after the divorce was finalized, the U.S. Supreme Court made clear that Mansell did not stand for the proposition that the wife’s portion of the benefits would be vested or guaranteed at the time that the divorce was entered.  Rather, the Court clarified that the wife’s share of military benefits would simply be subject to a future contingency in which a portion of her benefits may be reduced.

The U.S. Supreme Court further added in its opinion that the order to reimburse the wife for her lost share of benefits is effectively no different than awarding her a portion of the husband’s disability benefits.  While the purpose behind the reimbursement order is to indemnify the wife so as to restore her claim to property which was previously awarded, the U.S. Supreme Court emphasized that States cannot usurp federal law by vesting property which they do not have the authority to give.  The Court concluded that reimbursement and indemnification orders incorrectly supersede the federal rule and stands as an impediment to the policies and objectives of Congress.   

Observation:  Retirement pay from the Department of Defense is taxable; disability pay from the VA is not taxable (which in part justified the veteran’s decision to take disability pay).  The receipt of disability pay causes the reduction in retirement pay.  Federal retirement pay is property that may be divided in a divorce action.  Federal law prohibits VA disability pay from being divided.  The Supreme Court now holds that a state court may not order a veteran to indemnify a divorce spouse for the loss in the divorce spouse’s portion of the veteran’s retirement pay caused by the veteran’s waiver of retirement pay to receive disability benefits.


L.C. v. M.A.J., 451 N.J. Super. 408 (App. Div. 2017)

Issue: Did the trial court err in violating the due process rights of the plaintiff by summarily granting a motion in limine by the defendant to dismiss the underlying domestic violence complaint?

Holding: Yes.  The procedures employed by the trial court mandate reversal as the plaintiff was denied due process by not having an opportunity to be heard on the domestic violence complaint and an opportunity to file responding papers to the dismissal application which was filed at the time of final hearing.

Discussion: On May 16, 2016, the plaintiff, ex-wife, filed a domestic violence complaint against the defendant, ex-husband, and subsequently obtained a TRO.  The allegations set forth in the complaint indicated a history of domestic violence including past physical abuse and harassing conduct.  

At the time of the FRO hearing in this matter, the defendant filed a motion in limine seeking to dismiss the domestic violence complaint of the plaintiff, ex-wife.  Although the motion did not cite to a particular rule warranting a dismissal, counsel for the defendant presented the application to the trial judge as a motion to dismiss.  The gravamen of the defendant’s motion did not address whether the plaintiff had pleaded all the required elements to sustain a cause of action under the Prevention Against Domestic Violence Act, N.J.S.A. 2C:25-17.  Rather, the defendant’s motion only addressed the facts alleged by the plaintiff and argued that the communications at issue regarding parenting time did not give rise to harassment under the statute.

 The court proceeded to hear brief arguments from the attorneys regarding the merits of the in limine dismissal application but did not take testimony from the parties and did not grant a continuance in order to allow the plaintiff’s counsel to prepare a written submission opposing the application.  Upon conclusion of the arguments by the attorneys, the trial judge granted the defendant’s motion and dismissed the complaint.

On appeal, the dismissal ruling by the trial judge was reversed and the TRO was reinstated by the Appellate Division as the decision in the lower court denied the plaintiff her due process rights to have a fair opportunity to challenge the claims raised in the in limine motion.  The Appellate Division noted that there were multiple procedural and substantive defects with regard to filing this type of application.  From a procedural standpoint, courts strongly disfavor filing dispositive motions at the time of a trial or final hearing.  The appellate panel explained that in limine motions that are brought on the eve of trial are only acceptable if they seek to address preliminary or evidentiary issues.  In this case, it was without question that the purport of this motion was to dismiss the claims set forth by the plaintiff in a summary fashion rather than contest the admissibility of evidence sought to be introduced at trial.  Accordingly, consideration of the in limine dismissal application on these grounds was procedurally improper.  

The Appellate Division further pronounced that even if dismissal of the plaintiff’s domestic violence case was appropriate, the time to consider such an application by the trial court should have been at the conclusion of the plaintiff’s case in chief in which the defendant would move for an involuntary dismissal.  However, because the trial judge abruptly extinguished the case before any testimony was elicited and a fact-finding hearing was conducted, the trial court denied the plaintiff of due process and her opportunity to meet her burden at final hearing.  

In further finding fault with the defendant’s in limine motion, the Appellate Division explained that the trial court also misapplied the law as it related to R. 4:6-2.  While the trial court viewed the defendant’s application in the context of this court rule as a motion to dismiss for failure to state a claim, the court abused its discretion in that it evaluated the plaintiff’s case based on weight of the evidence and the ability of plaintiff to prove the allegations in the complaint.  The Appellate Division emphasized in this case that this type of motion is not decided based on the substance of the evidence but whether facts have been pled which give rise to a cognizable cause of action.  The panel adds that the trial judge made assumptions about the plaintiff’s allegations on a factually absent record without any testimony elicited or evidence admitted and failed to accord any factual inference in a light most favorable to the plaintiff as required when reviewing a motion to dismiss.  

Observation:  L.C. v. M.A.J. makes clear that you cannot file a motion in limine to dismiss a domestic violence complaint.  However, practitioners should be aware of another procedure for an expedited hearing under the Prevention of Domestic Violence Act especially useful when it can be established that the TRO is patently without merit.  N.J.S.A. 2C:25-28(i) provides that any TRO “is immediately appealable for a plenary hearing de novo not on the record.”


R.G. v. R.G., 449 N.J. Super. 208 (App. Div. 2017)

Issue: Did the trial court lack jurisdiction under the Prevention Against Domestic Violence Act, N.J.S.A. 2C:25-19, to issue a final restraining order against the defendant?

Holding: No.  The court possessed jurisdiction to hear the case as the domestic violence statute was amended in 2015 to cover situations where a victim was subjected to abuse by a person who was a household member.  Since the plaintiff and defendant were brothers who resided together during childhood, the court was entitled to address the alleged conduct as a domestic violence matter under the act.

Issue: Did the trial court err in issuing a final restraining order (FRO) against the defendant based on its findings that the conduct between the parties constituted domestic violence?

Holding:  Yes.  The plaintiff failed to meet the two indispensable criteria of Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), as the conduct alleged did not constitute predicate acts of domestic violence and there was no evidence of immediate danger based on the nature of the dispute.    

Discussion:  The plaintiff and the defendant were brothers who originally grew up together in New Jersey.  The defendant thereafter moved to Long Island, New York and has been residing there for thirty-six years.  While the relationship between the parties was previously on good terms, discord began to arise upon their mother’s health beginning to deteriorate.  

In spring 2015, the parties’ mother contracted pneumonia which subsequently caused medical complications.  As the plaintiff had been appointed the attorney-in-fact to handle his parents’ affairs, he had proposed that their mother be placed in a care facility to provide for her needs.  Although the defendant expressed a desire for the plaintiff to explore alternative options so that their parents could remain in the same home, the plaintiff thereafter sent the defendant an email indicating that he permanently moved their mother to a care facility.  

As a result of the plaintiff’s decision, the defendant sent a series of offensive and vulgar text messages to the plaintiff conveying his disappointment and displeasure about the situation involving their mother.  Several of these text messages also reveal the defendant’s demands to obtain financial documentation and to pursue legal action against the plaintiff.  In a text message that was sent in response to an earlier message by the plaintiff, the defendant stated that he loved to harass the plaintiff since he was afraid to speak to him.

On September 5, 2015, the defendant and his wife travelled to the New Jersey care facility to visit his parents.  Upon arriving at the facility, the defendant confronted the plaintiff during which time the parties engaged in a heated argument.  After the plaintiff asked the defendant whether he would hit him in front of their parents, the defendant proceeded to shove the plaintiff who was knocked over and had his glasses fall off.  The police were eventually summoned to the facility and the defendant was charged with simple assault.  

The plaintiff thereafter filed an application with the family court seeking a restraining order against the defendant.  At the FRO hearing, the trial judge found that there were predicate acts of domestic violence as the text messages sent by the defendant were indicative of harassment and the defendant’s shoving of the plaintiff at the facility amounted to simple assault.  The court found that while immediate danger was not “self-evident,” the plaintiff ultimately met his burden for a FRO based on prior acts of violence being introduced at trial between the defendant and his son and the escalating threats made by the defendant.  

Defendant filed an appeal challenging the FRO that was issued by the family court.  As part of his appeal, the defendant claimed that the Family Part lacked jurisdiction to adjudicate the plaintiff’s complaint, considered inadmissible evidence of an incident involving the defendant and his son, and incorrectly found an immediate danger warranting a FRO.  

Judge Lihotz writing for the Appellate Division overturned the ruling of the lower court, finding reversible error on multiple grounds.  However, before addressing the basis for the reversal, the court rejected the defendant’s claim that the Family Part lacked jurisdiction to decide this matter under the New Jersey Prevention Against Domestic Violence Act.  The Appellate Division noted that the statute was recently amended in 2015 to address acts of abuse by household members.  Thus, the relationship between the plaintiff and the defendant, brothers who previously grew up together in New Jersey, clearly fell within the scope of the act.  Moreover, it was determined that the legislative intent behind the amendments was to broaden the reach of the domestic violence statute.

In reaching the conclusion that the plaintiff did not meet his burden at trial to warrant a FRO, the Appellate Division examined the two prongs in Silver.  Specifically, the Appellate Division first noted that the disturbing text messages and shoving caused by the defendant were insufficient as predicate acts of harassment and simple assault under the domestic violence statute.  As part of its reasoning, the court emphasized that the context and circumstances in which the actions by the defendant occurred must be given consideration.  In this case, the fact that the defendant reacted harshly and emotionally to the plaintiff’s decision to move his parents into a care facility was more akin to an ordinary dispute amongst family members rather than an act of domestic violence.  The court was not persuaded that the spirit of the domestic violence act was designed to protect against this type of conduct.  

Furthermore, the appellate panel declared that the evidence which was introduced before the trial court did not establish that the conduct alleged would lead to immediate danger.  The court noted that it was an abuse of discretion of the trial judge to consider prior bad acts between the defendant and his son as part of the “immediate danger” analysis because they were irrelevant to the domestic violence case with the plaintiff.  Moreover, the Appellate Division also determined that the context and circumstances in which the escalating threats and conduct occurred did not sufficiently implicate the public policy concerns of the Legislature to justify the entry of a restraining order.

Observation:  In one of her final published family law opinions, Judge Lihotz makes clear that Silver and the two-pronged test required for proving domestic violence is still good law.  In A.M.C. v. P.B., 447 N.J. Super. 402 (App. Div. 2016) the Appellate Division reversed a trial court decision that denied entry of an FRO because although the predicate act of domestic violence had been committed, it was deemed that the FRO was not necessary to protect the victim.  In reversing the trial court, the Appellate Division in A.M.C. held that based on the nature of the act (i.e. physical violence), entry of the FRO was “perfunctory and self evident.”  This ruling called into question the second prong of Silver in cases involving an assault.  R.G. v. R.G. makes clear that the second prong of Silver remains a viable defense to domestic violence complaints even where physical violence occurs when you can demonstrate that the FRO is not needed to protect the victim from further acts of domestic violence.


T.M.S. v. W.C.P., 450 N.J. Super. 499 (App. Div. 2017)

Issue: May a trial court reinstate a Final Restraining Order (FRO) sua sponte where it is clear that the plaintiff received invalid service of the defendant’s Carfagno application seeking to dismiss the FRO?

Holding: No.  After the trial court makes a determination at a Carfagno hearing to vacate a FRO, the restraints for a FRO cannot be reinstated by a court on its own accord and may only be reinstated if there are sufficient grounds based on the aggrieved party filing a formal motion under R. 4:50-1.   

Discussion: The plaintiff in this action initially obtained a Temporary Restraining Order (TRO) against the defendant stemming from a domestic violence incident on October 31, 2006. Shortly thereafter, the defendant admitted to an act of domestic violence and an FRO was entered against the defendant on November 29, 2006.  

The defendant attempted to lift the restraints on two occasions by filing a Carfagno application in the Family Part.  Although the defendant’s first application was denied by the court, the plaintiff did not appear at the hearing in connection with the defendant’s second application.  Upon finding that service of the plaintiff’s application was valid at that time, the court granted the defendant’s unopposed application on December 8, 2014.

As a result of the FRO being dismissed, the defendant then moved for a hearing in order to request the return of weapons which he had previously forfeited due to the restraining order.  During the weapons forfeiture hearing on December 15, 2015, the court which heard the previous Carfagno motion reversed its initial determination that the plaintiff had been validly served with the defendant’s dismissal paperwork.  The decision was based in part on the representation of the plaintiff’s counsel who indicated that the plaintiff had never been noticed of the dismissal application despite no proof that the regular mail had been retuned.  Although the court observed that the plaintiff had not bothered to update her contact information that was on file, it proceeded to reinstate the FRO against the defendant sua sponte and order another Carfagno hearing.  

At this hearing, which was conducted by a different court, the defendant’s request to dismiss the reinstituted FRO was denied.  After the defendant’s Motions for Reconsideration were denied on July 1, 2016, the defendant brought the issue before the New Jersey Appellate Division.  Specifically, the defendant claimed that the Prevention Against Domestic Violence Act (PDVA), in accordance with N.J.S.A. 2C:25-29(d), does not allow the court to reinstate an FRO on its own motion.    

On appeal, the Appellate Division vacated the ruling of the trial court and found that the court abused its discretion in reinstating the FRO against the defendant.  In arriving at this conclusion, the Appellate Division reviewed the State of New Jersey Domestic Violence Procedure Manual which provides for the court to provide reasonable notice to the plaintiff when responding to a dismissal application and allows the plaintiff to reopen a TRO or FRO only upon filing a notice of motion pursuant to R. 4:50-1.  The Appellate Division emphasized the importance of reasonable notice being given to the plaintiff as it evokes the principle of due process which is consistent with the PDVA.  

In the instant matter, it was clear to the Appellate Division that the during the initial Carfagno hearing, the trial court was satisfied that the plaintiff had been properly served with the defendant’s dismissal application.  The issue of service only arose during the weapons forfeiture hearing, long after the Carfagno hearing had concluded and the trial court had issued detailed findings of fact warranting the dismissal.  Although it was also unclear whether the plaintiff was served with the dismissal papers by certified and ordinary mail, there was nothing in the record to suggest that the regular mail had been returned and that the plaintiff did not have notice of the filing.

The Appellate Division further stated that it was improper for the court to deviate from the requirements of the PDVA by reinstating restraints sua sponte as it essentially precluded the defendant from challenging whether service was proper.  It referenced R. 5:4-4(b)(1) which mandates that service must be effectuated via certified and regular mail under the PDVA.  The appellate panel accorded significant weight to the fact that despite reinstating the FRO, the trial court could not unequivocally determine whether the regular mail had been returned.  The Appellate Division found equally compelling the fact that while the plaintiff was aware of the defendant’s unopposed Carfagno application by at least the time of the weapons forfeiture hearing in December 2015, she had not made any application to the trial court to reinstate the FRO.  

Observation:  Judge Mawla raises an important concern by this opinion.  Remember, domestic violence FROs have no sunset provision and last forever unless vacated.  If a defendant seeks to come to court ten (10) years or twenty (20) years after entry of the FRO to vacate the restraints – how is notice to be perfected on the plaintiff?  As defendant is not allowed to have contact with the plaintiff and especially if the parties do not have a child in common, defendant may not know where the plaintiff resides.  Should plaintiffs be required to periodically update their address with the Family Division so long as an FRO remains in effect?  The matter is not insignificant as there are over 100,000 FROs in existence and over time courts will be called upon more frequently to address applications to dissolve these restraints without the consent of the victim.


K.A. and K.I.A. v. J.L.., _____ N.J. Super. ____ (Ch. Div. 2017)

Issue: Can a New Jersey trial court assert personal jurisdiction over an out-of-state defendant based upon service of an Order to Show Cause and Complaint via Facebook?

Holding: Yes.  The trial court determined that where the conduct of a defendant is directly targeting the forum state via the internet and where the manner of service cannot be effectuated through conventional means yet would protect the defendant’s due process rights, personal jurisdiction can be established by service of process via Facebook.  

Discussion: The underlying issue in this action arose as a result of improper communications that were initiated by the defendant to Z.A., the plaintiffs’ adopted child, and images that were allegedly published online by the defendant about Z.A.’s biological family.  Specifically, the plaintiffs alleged that the defendant first attempted to contact Z.A. by sending a friend request through Facebook.  Upon Z.A. denying this request, the plaintiffs claimed that the defendant utilized other social media platforms, such as Instagram, in order to notify Z.A. that he had been adopted and to identify himself as Z.A.’s biological father.  The plaintiffs further maintained that the defendant allegedly informed Z.A. that he knew the location of Z.A.’s birth and revealed the identity of Z.A.’s birth mother.  In addition to this conduct, the plaintiffs stated that the defendant proceeded to post several photographs online depicting Z.A. as one of his children.

In response to the defendant’s contact with Z.A. and postings on the internet, the attorney for the plaintiffs sent cease and desist notices to the defendant by certified and regular mail at his last known addresses in Pennsylvania.  Although the regular mail had not been returned to sender, the certified mailings were ultimately sent back as a result of being unclaimed.  In an effort to prevent what was perceived as inappropriate conduct, the plaintiffs filed an Order to Show Cause seeking immediate restraints to enjoin further contact by the defendant with the plaintiffs and Z.A. and to compel the defendant to remove pictures online which the plaintiffs believed to be harmful and emotionally damaging to Z.A.  However, based on the plaintiffs’ difficulty in notifying the defendant of the allegations by mail, they sought leave from the court to effectuate substituted service of process of the Order to Show Cause and accompanying Complaint via Facebook.

Upon reviewing the merits of plaintiffs’ application to serve defendant by Facebook, the court noted that the first step which must be addressed is to ascertain whether it has sufficient personal jurisdiction to hear this matter for which the balance of the conduct occurred online involving a defendant who resides out-of-state.  In order to determine whether personal jurisdiction existed, the court relied on the “effects test” which applies when an out-of-state resident purposely directs and targets conduct in the forum state.  In the present matter, the trial court was convinced that personal jurisdiction was properly established as the defendant used his social media accounts to contact members of the plaintiffs’ family who were New Jersey residents.  Thus, any harm caused by the defendant through his online communication was purposely directed towards New Jersey, allowing personal jurisdiction to be conferred.

As an added element of the personal jurisdiction analysis, the trial court declared that the plaintiffs had adequately availed themselves of complying with the service rules under R. 4:4-4.  It was clear to the trial court that service to the defendant either personally or by mail could not be effectuated as the last known addresses, which were obtained by the plaintiffs, were not valid.  Furthermore, service by publication would be impracticable based on the urgent nature of this action and the fact that the defendant would need to actually receive the pleading in order to ensure that the harm would be stopped.  

Accordingly, the trial court concluded that service by Facebook was the only viable alternative to reasonably ensure that the defendant would be put on notice with regard to his conduct.  In reaching this result, the trial court reasoned that service via Facebook would be “consistent with due process” under the service rules as it was evident that the Facebook and Instagram accounts were the primary channels of the purported harm.  The trial court added that based on the defendant’s recent activity on Facebook, there was enough proof to establish that the account remained active and that receipt of the plaintiffs’ documents in this matter would be likely.

Observation:  Welcome to the 21st century…service by Facebook when personal service is unavailable and a valid address for the defendant cannot be obtained.  Isn’t service by social media a major upgrade from service by publication?

This opinion was written by Judge Hansbury in the Spring of 2016 but was approved for publication in May of 2017.  That suggests that while it is only a trial court opinion, the case is likely to have influence beyond Morris County.

Service of process via social media has been accepted by courts in Australia, Canada, New Zealand, and the United Kingdom.  In 2014, it was accepted by a family court in New York.  For those of us old enough, think of it as akin to the rulings which lead to accepting a faxed signature as the real thing.          


Sacklow v. Betts, 450 N.J. Super. 425 (Ch. Div. 2017)

Issue: What standard and factors must New Jersey family courts apply when confronted with a name change application for a transgender minor child?

Holding: The best interests test is the appropriate standard for family courts to apply when addressing a petition to change the name of a transgender minor child.  Although this is a case of first impression in New Jersey, courts are to examine the following factors regarding the merits of a transgender name change petition: 1.) the age of the child; 2.) the length of time the child has used the preferred name; 3.) any potential anxiety, embarrassment, or discomfort that may result from the child keeping the current name; 4.) the history or any medical or mental health counseling the child has received; 5.) name the child is known by in his or her family, school, and community; 6.) the child’s preference and motivations for the name change; and 7.) whether both parents consent to the name change, and if consent is not given, the reason for withholding consent.  

Discussion: The plaintiff and defendant were married for fifteen (15) years during which time they had one child born of the marriage, Veronica.  After their divorce on June 8, 2011, the plaintiff, who was the mother of Veronica, and the defendant, who was the father of Veronica, shared joint legal custody of the child and the plaintiff was designated parent of primary residence.    

The plaintiff commenced the underlying action by filing a Verified Complaint on September 12, 2016 requesting that the court change the name of the parties’ child from Veronica to Trevor.  The plaintiff certified that her request was due to the child identifying himself as a male and having undergone mental health treatment for gender dysphoria for a period of years.  The plaintiff further certified that the child, who was sixteen (16) years old at the time that the action was filed, did not conform to traditional gender norms.  Notably, the plaintiff alleged that the child had suffered from a drastic change in her behavior during puberty which resulted in getting bad grades, lying, and even vandalizing school property.  

In response to the plaintiff’s Verified Complaint, the defendant filed an Answer on October 14, 2016 which primarily requested that a hearing be conducted by the court to determine whether the name change was in the child’s best interests.  The defendant also disputed the allegations raised by the plaintiff that a name change for the child was proper based on the surrounding circumstances.

The court scheduled a hearing date on March 7, 2017 during which time, the court heard testimony from the plaintiff, the defendant, and their transgender child.  Although the defendant ultimately gave his consent for the name change after the defendant cross-examined the child, the court determined that independent findings of fact and conclusions of law were necessary as the consent of the child’s parents represented only one factor of the best interest analysis.

After a careful review of the facts and evidence which were presented, the court granted the plaintiff’s application to legally change the child’s name to Trevor.  In granting the plaintiff’s petition, the court first noted that since Trevor is a minor child, it is obligated to exercise its role parens patriae to evaluate whether the name change is in the child’s best interest.  Although the court also acknowledged that there is no legal precedent in New Jersey regarding the procedure for a transgender name change of a minor child, it relied on prior cases, such as Emma v. Evans, 215 N.J. 197, 215 (2013) and Gubernat v. Deremer, 140 N.J. 120 (1995), which promulgated factors that a court should consider when entertaining a name change application of a minor child.  Based on the criteria developed in those cases, the court could be guided in developing a list of factors to assess the merits of the transgender name change in this case.

The court further found that the factors which it had developed based on the prior name change cases served as compelling ground to grant the plaintiff’s name change application.  First, with regard to the child’s age, Trevor was sixteen years old and the court observed during the child’s testimony that he was clearly capable of expressing a reasoned and intelligent opinion about his desire for a name change.  Second, as to the length of time which Trevor had used his name, the record reflected that Trevor had been known by his chosen name for five years which the court noted was a significant period of time.  Third, the court was extremely concerned about the likelihood of abuse if the name change was not granted and the child’s prior history indicated that he had been previously hospitalized due to suicidal thoughts.  Fourth, regarding medical or mental health counseling, it was clear that Trevor had been receiving treatment for five years in order to address the disconnect with his gender.  Fifth, the evidence supported the notion that the overwhelming majority of the minor child’s friends, family, and community recognized the child as Trevor.  Sixth, the court added that the child’s reason for the name change was purely a personal decision which was not based on defrauding creditors or avoiding criminal prosecution.  Lastly, the court observed that both parents were in favor of the name change application after the defendant consented to the relief sought by the plaintiff during the hearing.

Observation:  Judge Silva writing for the Middlesex County Family Part has received universal praise for this milestone opinion.  The importance of a name change on the well-being of a transgender child cannot be overstated.  From attempting to avoid bullying at school to taking the first step in a process that allows the child to begin full transition into their chosen gender, these cases demonstrate the gravity of the issues that come before our family court judges every day and when they get it right, they should be commended.