Family Law

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Overview

Family law generally concerns domestic relations and family-related matters such as marriage, civil unions, domestic partnerships, adoptions, paternity, guardianships, domestic abuse, surrogacy, child custody, child abduction, the dissolution of marriage and associated issues. According to U.S. Census data the make-up of the American family has been changing. For instance, the 2000 Census revealed that less than a quarter of American families are married couples with minor children compared with 45% of such households in 1960.

A large percentage of marriages end in separation or divorce. When a couple decides to terminate their marriage, one of the parties will petition the court for a divorce. Besides seeking a legal termination of the relationship, the couple will also ask the court to divide the marital assets, grant child custody to one or both parents, and impose child and spousal support obligations, if applicable.

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  • Rule - State Parent Locator Service; Safeguarding Child Support Information

    Child Support Enforcement Office
    Rule
    State Parent Locator Service; Safeguarding Child Support Information
    ,
    11879-11880 [E9-6165]
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Administration for Children and Families Office of Child Support Enforcement 45 CFR Parts 302, 303 and 307 RIN 0970-AC01 State Parent Locator Service; Safeguarding Child Support Information AGENCY: Office of Child Support Enforcement (OCSE), Administration for Children and Families (ACF), Department of Health and Human Services. ACTION: Delay of effective date. SUMMARY: In accordance with the memorandum of January 20, 2009, from the Assistant to the... [read document]
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  • Rule - State Parent Locator Service; Safeguarding Child Support Information

    Child Support Enforcement Office
    Rule
    State Parent Locator Service; Safeguarding Child Support Information,
    56422-56446 [E8-22054]
    Part V Department of Health and Human Services Administration for Children and Families Office of Child Support Enforcement 45 CFR Parts 302, 303 and 307 State Parent Locator Service; Safeguarding Child Support Information; Final Rule DEPARTMENT OF HEALTH AND HUMAN SERVICES Administration for Children and Families Office of Child Support Enforcement 45 CFR Parts 302, 303 and 307 RIN 0970-AC01 State Parent Locator Service; Safeguarding Child Support Information AGENCY: Office of Child Support... [read document]
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  • Proposed Rule - Computerized Tribal IV-D Systems and Office Automation

    Child Support Enforcement Office
    Proposed Rule
    Computerized Tribal IV-D Systems and Office Automation,
    33048-33064 [E8-13042]
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Office of Child Support Enforcement 45 CFR Parts 309 and 310 RIN 0970-AC32 Computerized Tribal IV-D Systems and Office Automation AGENCY: Office of Child Support Enforcement (OCSE), Administration for Children and Families, Department of Health and Human Services (HHS). ACTION: Notice of proposed rule making (NPRM). SUMMARY: This proposed rule would enable Tribes and Tribal organizations currently operating a comprehensive Tribal Child Support Enforcement... [read document]
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  • Proposed Rule - Tribal Child Support Enforcement Program

    Child Support Enforcement Office
    Proposed Rule
    Tribal Child Support Enforcement Program,
    32668-32669 [E8-13073]
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Office of Child Support Enforcement 45 CFR Parts 309 and 310 Tribal Child Support Enforcement Program AGENCY: Office of Child Support Enforcement, Administration for Children and Families, Department of Health and Human Services. ACTION: Notice of open consultation. SUMMARY: Notice is hereby given for the dates and locations for one informational meeting and three Tribal consultations on the Computerized Tribal IV-D Systems and Office Automation Notice of... [read document]
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  • Your most important asset

    Going through a divorce is tough, especially for the children. It is a transition time for everyone, and the children need special consideration. I recently read an article about how to help children through a divorce. I do not know Sue Atkins or endorse her products, but I thought her article had some good points. It can be found here: http://sueatkinsparentingcoach.com/14071/

  • The common law doctrine of res gestae

    Law Lessons from State v. Zarik Rose, __ N.J. __ (2011), A-111-09, June 8, 2011: There exists confusion and uncertainty about the use of the common law doctrine of res gestae, and its very status as a viable feature of New Jerseys evidence jurisprudence. The doctrine of res gestae has been controversial. Critics of the doctrine have long noted that evidential rulings explained on the basis of res gestae tend to be result-oriented and conclusory, leading to imprecise and discordant admissibility determinations. An incantation that evidence is "res gestae" is said to lack, fundamentally, the analytic rigor, precision, and uniformity that evidential rulings were intended to have under the codified Rules of Evidence. Res gestae translates from Latin as "things done," and from that translation springs its conceptualization both as an independent hearsay exception and as a shorthand reference to intrinsic evidence of a singular transaction or event. See Blacks Law Dictionary 1423 (9th ed. 2009). The term has been traced to 1637, but did not become commonly used until the 1800s. See 6 Wigmore on Evidence § 1767, at 254 & n.1, 255 (Chadbourn rev. 1976). It has since evolved into a term of art that embodies the two aforementioned distinct concepts. Res gestae was conceived of as an exception to the hearsay rule that allowed for the admission of statements that were made at the time that the principal act in issue occurred. 2 McCormick on Evidence, supra, § 268, at 245-46. Over time that conception of res gestae expanded to allow for the introduction of statements that accompanied any act relevant to the case in issue. Id. at 246. The theories behind res gestae as a hearsay exception were twofold. The first was that a witness should be allowed "to tell his or her story in a natural way by reciting all that happened at the time of the narrated incident, including those details that give it life and color." Ibid. The second was that spontaneous statements, by their very nature, exhibit an enhanced degree of trustworthiness and should therefore be admissible. Ibid. The doctrine became an exception to the general prohibition of hearsay evidence, rendering admissible out-of-court statements connected to an act because they were necessary in order to understand the events and had an inherent guarantee of trustworthiness. See, e.g., Robertson, supra, 1 N.J. at 312; Hunter, supra, 40 N.J.L. at 538-39. To be res gestae, the statements had to be "so connected with an act" as to constitute a part of the act. See Hunter, supra, 40 N.J.L. at 537. Uses of res gestae as a hearsay exception are now recognized as the predecessors to the codified hearsay exceptions in the Rules of Evidence. See State v. Schumann, 111 N.J. 470, 479 (1988) ("[T]he res gestae exception may be viewed as a shorthand reference to the principles contained in . . . [the] exceptions to the Rule excluding hearsay evidence[.]"). Hearsay statements once admitted under the generic term res gestae are recognized as being addressed through specific, codified exceptions to the hearsay rule, namely: (1) present sense impressions, see N.J.R.E. 803(c)(1); excited utterances, see N.J.R.E. 803(c)(2); and statements of then-existing mental, emotional, or physical conditions, see N.J.R.E. 803(c)(3). See 2 McCormick on Evidence, supra, § 268, at 245-46; see also Branch, supra, 182 N.J. at 357-58 ("Long before the excited utterance took on a separate identity under our modern rules of evidence, it was grouped along with several hearsay rule exceptions (verbal act, present sense impression, and statement of then existing mental, emotional, or physical condition) under the umbrella of res gestae."). The second concept historically embodied in the term res gestae is its use as an independent evidentiary doctrine to admit evidence of other acts. Under the common law, evidence of a defendants uncharged criminal conduct was not admissible to show criminal propensity. State v. Hendrick, 70 N.J.L. 41, 45-46 (Sup. Ct. 1903). However, res gestae was an exception that was used to admit evidence of other bad acts offered for a nonpropensity purpose. Id. at 46. Evidence of this nature admissible as res gestae can be divided into two categories: (1) bad acts that are intrinsic to the charged crime and (2) separate crimes. In New Jersey, res gestae has been used to admit evidence of other acts if the other act "constitute[s] part[] of the transaction . . . without the knowledge of which the main facts might not properly be understood." Riley v. Weigand, 18 N.J. Super. 66, 73 (App. Div. 1952). Second, res gestae has been invoked to admit evidence of separate crimes if the evidence was not offered to show propensity. State v. Sinnott, 24 N.J. 408, 413-14 (1957); see, e.g., State v. Overton, 85 N.J.L. 287, 291 (E. & A. 1913) (admitting separate crime evidence under res gestae to show motive). Prior to the promulgation of the Rules of Evidence, res gestae allowed the admission of evidence of separate acts to prove motive or intent. See, e.g., Sinnott, supra, 24 N.J. at 413-14; Overton, supra, 85 N.J.L. at 291. When codified, the Rules of Evidence incorporated those common law applications of res gestae in the rule specifically addressing bad acts evidence. Rule 404(b) admits evidence of other crimes or bad acts for non-propensity purposes. The examples of non-propensity purposes listed in Rule 404(b) are drawn from res gestae jurisprudence, and incorporate the holdings of cases such as Sinnott, supra, 24 N.J. at 413-14, and Overton, supra, 85 N.J.L. at 291. Because specific hearsay exceptions that would have previously fallen under the umbrella of res gestae have been codified, many courts have concluded that res gestae no longer serves a useful purpose as a free-standing exception to the hearsay rule. See, e.g., Horton v. State, 764 P.2d 674, 677 (Wyo. 1988) (stating that because res gestae hearsay exceptions had been codified in W.R.E. 803, res gestae should be eliminated); Miller v. Keating, 754 F.2d 507, 509 n.1 (3d Cir. 1985) ("Before adoption of the Federal Rules of Evidence, courts applied res gestae with much confusion to hearsay statements of various sorts."); see also infra note 17. Continued use of the moniker of res gestae adds nothing more than an interpretative descriptor that risks clouding an evidence-rule analysis or, worse, avoiding its required rigor through invocation of a result-infused term. The evidence rules that govern exceptions to the hearsay rule comprise a fully integrated doctrine and should be given the fulsome and comprehensive effect that they were intended to have. Moreover, our own case law reflects that the codified Rules incorporated the previous common law exceptions loosely categorized as res gestae hearsay. The notion of "intrinsic evidence" lies in the cross hairs of the intersection of Evidence Rules 401, 402, and 403, on the one hand, and Rule 404(b), on the other. Under Rules 401 and 402, relevant evidence is admissible; however, Rule 403 provides that "relevant evidence [admissible under Rule 402] may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." A different approach pertains under Rule 404(b), which provides that evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute. [N.J.R.E. 404(b).] However, evidence that is intrinsic to the charged crime is exempt from the strictures of Rule 404(b) even if it constitutes evidence of uncharged misconduct that would normally fall under Rule 404(b) because it is not "evidence of other crimes, wrongs, or acts." See 22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5239, at 445 (1978) ("One of the key words in determining the scope of Rule 404(b) is other; only crimes, wrongs, or acts other than those at issue under the pleadings are made inadmissible under the general rule."). Thus, evidence that is intrinsic to a charged crime need only satisfy the evidence rules relating to relevancy, most importantly the Rule 403 balancing test. Thus, characterization of evidence as "intrinsic" significantly affects the calculus because the principle animating Rule 403 is that relevant evidence is admissible unless its probative value is substantially outweighed by a negative feature of the evidence, whereas Rule 404(b) operates from the premise that evidence of other bad acts is inadmissible unless proffered for a proper purpose. It is therefore more likely that evidence of uncharged misconduct will be admitted into evidence if it is considered intrinsic to the charged crime and subject only to Rule 403 than if it is not considered intrinsic evidence and subject to both Rule 404(b) and Rule 403. Whenever the admissibility of uncharged bad act evidence is implicated, a Rule 404(b) analysis must be undertaken. The threshold determination under Rule 404(b) is whether the evidence relates to "other crimes," and thus is subject to continued analysis under Rule 404(b), or whether it is evidence intrinsic to the charged crime, and thus need only satisfy the evidence rules relating to relevancy, most importantly Rule 403. Although Rule 404(b) is often described as one of exclusion, it focuses on a distinct, worrisome category of evidence that, if presented, is only admissible for limited purposes, and the jury must be informed both as to how the evidence may, and may not, be used. The Rule provides an analytical framework through which all potential "other crimes, wrongs, or acts" evidence should be sifted. Hence Rule 404(b) shall be the default starting point for analysis of uncharged bad acts that in the past has been also known as res gestae. New Jerseys Evidence Rules provide the structure by which evidential rulings should be analyzed and explained by trial courts, informed by the paradigm set forth herein. Henceforth, "res gestae" may not be used as an explanation for the admission of evidence, in circumvention of the application of the formal Rules of Evidence. The New Jersey Rules of Evidence must govern the analysis, and support the admission of evidence that heretofore has been referred to as res gestae. Note: There is a print link embedded within this post, please visit this post to print it. NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

  • Evidence of other crimes or wrongs

    Law Lessons from State v. Zarik Rose, __ N.J. __ (2011), A-111-09, June 8, 2011: Rule 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute. "The underlying danger of admitting other-crime evidence is that the jury may convict the defendant because he is a bad person in general." State v. Cofield, 127 N.J. 328, 336 (1992). Thus, "the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is introduced for some purpose other than to suggest that because the defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial." Id. at 335-36 (quoting 1 McCormick on Evidence § 190, at 798 (Strong ed., 4th ed. 1992)). Rule 404(b) "seeks to strike a balance between the prejudice to a defendant that is inherent in other-crimes evidence and the recognition that the evidence may be highly relevant to prove a defendants guilt of the crime charged." Barden, supra, 195 N.J. at 388. Thus, evidence of uncharged misconduct would be inadmissible if offered solely to prove the defendants criminal disposition, but if that misconduct evidence is material to a non-propensity purpose such as those listed in Rule 404(b), it may be admissible if its probative value is not outweighed by the risk of prejudice. See ibid. The seminal case in New Jersey on the proper application of Rule 404(b) to evidence of uncharged misconduct is State v. Cofield.10 In Cofield, supra, the Court articulated the following four-part test to determine if evidence of uncharged misconduct is admissible at trial: 1. The evidence of the other crime must be admissible as relevant to a material issue; 2. It must be similar in kind and reasonably close in time to the offense charged; 3. The evidence of the other crime must be clear and convincing; and 4. The probative value of the evidence must not be outweighed by its apparent prejudice. [127 N.J. at 338 (quoting Abraham P. Ordover, Balancing The Presumptions Of Guilt And Innocence: Rules 404(b), 608(b), And 609(a), 38 Emory L.J. 135, 160 (1989)).] To satisfy the first prong of the Cofield test - the relevancy prong - the evidence must have "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." See N.J.R.E. 401 (defining "relevant evidence"). "The standard for the requisite connection is generous: if the evidence makes a desired inference more probable than it would be if the evidence were not admitted, then the required logical connection has been satisfied." State v. Williams, 190 N.J. 114, 123 (2007). The evidence must also bear on a material issue in dispute, such as motive, intent, or an element of the charged offense, and so "the Court should consider whether the matter was projected by the defense as arguable before trial, raised by the defense at trial, or was one that the defense refused to concede." State v. P.S., 202 N.J. 232, 256 (2010). The second prong of the Cofield test is understood as "limited to cases that replicate the circumstances in Cofield." Williams, supra, 190 N.J. at 131. Temporality and similarity of conduct is not always applicable, and thus not required in all cases. See P.S., supra, 202 N.J. at 255 n.4. Moving on to the third prong, the prosecution must establish that the act of uncharged misconduct which it seeks to introduce into evidence actually happened by "clear and convincing" evidence. Cofield, supra, 127 N.J. at 338. The fourth prong of the Cofield test is typically considered the most difficult to overcome. Barden, supra, 195 N.J. at 389. "Because of the damaging nature of such evidence, the trial court must engage in a careful and pragmatic evaluation of the evidence to determine whether the probative worth of the evidence is outweighed by its potential for undue prejudice." Ibid. That standard is more exacting than Rule 403, which provides that relevant evidence is admissible unless its probative value is substantially outweighed by the risk of undue prejudice. Reddish, supra, 181 N.J. at 608. And, "[i]f other less prejudicial evidence may be presented to establish the same issue, the balance in the weighing process will tip in favor of exclusion." Barden, supra, 195 N.J. at 392; see P.S., supra, 202 N.J. at 256. Additionally, in order to minimize "the inherent prejudice in the admission of othercrimes evidence, our courts require the trial court to sanitize the evidence when appropriate." Barden, supra, 195 N.J. at 390 (citation omitted). Finally, limiting instructions must be provided to inform the jury of the purposes for which it may, and for which it may not, consider the evidence of defendants uncharged misconduct, both when the evidence is first presented and again as part of the final jury charge. Ibid. A suitable limiting instruction "explain[s] precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere." Ibid. The second prong of the Cofield test, addressing the similarity and temporality of the evidence, is not found in Rule 404(b), and is not universally required. See, P.S. supra, 202 N.J. at 255 n.4 (citing Williams, supra, 190 N.J. at 131). Turning to the next requirement, prong three of the Cofield analysis requires that the evidence of uncharged acts of misconduct be proven by clear and convincing evidence. See State v. Hernandez, 170 N.J. 106, 119-21, 127 (2001). Finally, the fourth prong of Cofield requires a balancing of the probative value of the evidence as compared to its prejudicial effect, and necessarily implicates an examination into whether less inflammatory sources of evidence that are equally probative are available. Barden, supra, 195 N.J. at 392. All highly probative evidence is prejudicial: because it tends to prove a material issue in dispute. The determinative question is whether the evidence was unfairly prejudicial, that is whether it created a significant likelihood that the jury would convict defendant on the basis of the uncharged misconduct because he was a bad person, and not on the basis of the actual evidence adduced against him. A wide range of motive evidence is generally permitted, and even where prejudicial, its admission has been allowed in recognition that it may have "extremely high probative value." State v. Long, 173 N.J. 138, 164-65 (2002); see State v. Rogers, 19 N.J. 218, 228 (1955) (discussing usefulness and wide admissibility of motive evidence). Note: There is a print link embedded within this post, please visit this post to print it. NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.
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