Tuesday, March 21, 2017

New Jersey Probate & Estate Litigation: Compelling Production of a Last Will & Testament

Any interested party may file an Order to Show Cause and Verified Complaint to compel production of a purported Last Will and Testament or information as to its existence of whereabouts. Pursuant to the New Jersey Probate Code (N.J.S.A. 3B:3-29):
The Superior Court shall have jurisdiction to compel discovery as to the existence or whereabouts of any paper purported to be a will of any decedent who died a resident of the county, which has not been offered for probate, and to require the paper to be lodged with the surrogate of the county for probate.
Pursuant to the Rules Governing the Courts of the State of New Jersey, the Court may order any person possessing the Will, or who has knowledge of the Will’s existence or whereabouts, to appear before it and make discovery as to his or her possession or knowledge of the Will or, upon the return date of the Order to Show Cause, enter such Order and take such further proceedings as may be deemed appropriate under the circumstances.

Generally, an interested party must allege in the Verified Complaint that:
  1. He or she believes that somebody has in his or her possession, or has knowledge of the existence of whereabouts of a paper writing purported to be the Will of the decedent;
  2. That the Testator or Testatrix of the Will passed away a resident of the county where filed; and
  3. That the individual has neglected or refused to file the Will with the Surrogate of the county.
Under New Jersey case law, the designated executor or executrix in possession of a Will has a duty to either probate the Will or renounce his or her office. It is also worth noting that certain improper conduct with respect to Wills may be a disorderly persons offense or a crime of the third degree in the State of New Jersey. Specifically, N.J.S.A. 2C:21-3 provides:
a. Fraudulent destruction, removal or concealment of recordable instruments. A person commits a crime of the third degree if, with purpose to deceive or injure anyone, he destroys, removes or conceals any will, deed, mortgage, security instrument or other writing for which the law provides public recording.
b. Offering a false instrument for filing. A person is guilty of a disorderly persons offense when, knowing that a written instrument contains a false statement or false information, he offers or presents it to a public office or public servant with knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office or public servant.
Because estate litigation and Will contests require specialized knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, the probate process, administration of an estate or trust, the elective share of a surviving spouse, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved


Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe Township, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Holmdel, Cliffwood Beach, Keyport, Keansburg, Middletown, Lincroft, Manalapan, Englishtown, Marlboro, Freehold, Colts Neck, Rumson), Union County (Rahway, Elizabeth), Ocean County, Somerset County, and Burlington County.

Probate / Estate Practice Specialties: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, caveats, the elective share, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

http://timothyjlittlelaw.com/
http://timothyjlittlelaw.com/new-jersey-probate-estate-litigation-compelling-production-of-a-will/
http://timothyjlittlelaw.com/firm/attorneys/justin-m-smigelsky-esq/

Thursday, March 9, 2017

New Jersey Probate & Estate Litigation: Contesting a Will for Improper Form or Execution

In determining whether grounds exist to challenge the validity of a Last Will and Testament, an analysis must be made as to whether the purported Will was prepared and executed in conformance with the New Jersey Wills Act. Pursuant to N.J.S.A. 3B:3-2, a Will must be:
  1. In writing;
  2. Signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; and
  3. Signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the Will or the testator’s acknowledgment of that signature or acknowledgment of the Will.
In the alternative, pursuant to N.J.S.A. 3B:3-2(b) and N.J.S.A. 3B:3-3, a noncompliant document may suffice if the signature and material portions of the document are in the testator’s handwriting or if the proponent of the document can establish that the decedent intended the document to constitute his or her Will. However, as stated in In the Matter of Will of Ranney, 124 N.J. 1 (1991), the execution of a Last Will and Testament remains a “solemn event,” and a careful practitioner must observe the formalities surrounding the execution of Wills.

In Ranney, the New Jersey Supreme Court highlighted the significance of the statutory formalities for the preparation and execution of Wills and commented that:
The primary purpose of those formalities is to ensure that the document reflects the uncoerced intent of the testator. Requirements that the will be in writing and signed by the testator also serve an evidentiary function by providing courts with reliable evidence of the terms of the will and of the testamentary intent. Additionally, attestation requirements prevent fraud and undue influence. Further, the formalities perform a “channeling function” by requiring a certain degree of uniformity in the organization, language, and content of wills. Finally, the ceremony serves as a ritual that impresses the testator with the seriousness of the occasion.
Although the doctrine of substantial compliance may permit a defect in formality to be cured in certain instances, failure to carefully comply with the statutory requirements for execution of a Will may result in a Will contest or challenge.

Because estate litigation and Will contests require specialized knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, the probate process, administration of an estate or trust, the elective share of a surviving spouse, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved


Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe Township, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Holmdel, Cliffwood Beach, Keyport, Keansburg, Middletown, Lincroft, Manalapan, Englishtown, Marlboro, Freehold, Colts Neck, Rumson), Union County (Rahway, Elizabeth), Ocean County, Somerset County, and Burlington County.

Probate / Estate Practice Specialties: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, caveats, the elective share, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

Monday, March 6, 2017

New Jersey Probate & Estate Litigation: Lack of Capacity as Grounds for Will Contest

The validity of a purported Last Will and Testament may be challenged for many reasons, including that the testator or testatrix lacked the mental capacity to make the Will. Generally, for purposes of a Will contest, the contestant has the burden of proving that the testator or testatrix did not have the requisite mental capacity at the time the Will was executed.

Pursuant to the New Jersey Probate Code (N.J.S.A. 3B:3-1), any person over the age of eighteen (18) years old, who is of sound mind, may make a Will. Generally, a testator or testatrix has the necessary capacity to make a Will if he or she:
  1. understands the general nature of the business in which he or she is engaged and the particular distribution he or she is effecting;
  2. recollects the property of which he or she means to dispose and the persons who naturally are the objects of his or her bounty; and
  3. comprehends the interrelation of these facts.
As can be imagined, the analysis is very fact-sensitive, and will ordinarily require expert testimony. As indicated above, only a minimal degree of capacity is necessary to make a Will. Furthermore, a very low degree of intelligence suffices for testamentary capacity – pursuant to New Jersey case law, even if the testator or testatrix is childish, “feebleminded,” a “drunkard,” an addict, suffering from memory lapses, or even classified as insane, he or she may still have the necessary capacity to make a Will.

Although the validity of a Will may be challenged for a certain period of time after it has been admitted to probate (generally, four months), a properly filed caveat may prevent the executor or executrix from receiving letters testamentary. Depending on the circumstances of each particular case, it may be advantageous to prevent the probate of a doubtful Will by filing a caveat, rather than seeking to challenge the probate judgment after the Will has been admitted.

Because estate litigation and Will contests require specialized knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, caveats, the probate process, administration of an estate or trust, the elective share of a surviving spouse, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved


Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe Township, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Holmdel, Cliffwood Beach, Keyport, Keansburg, Middletown, Lincroft, Manalapan, Englishtown, Marlboro, Freehold, Colts Neck, Rumson), Union County (Rahway, Elizabeth), Ocean County, Somerset County, and Burlington County.

Probate / Estate Practice Specialties: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, caveats, the elective share, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

http://timothyjlittlelaw.com/new-jersey-probate-estate-litigation-lack-of-capacity-as-grounds-for-will-contest/
http://timothyjlittlelaw.com/firm/attorneys/justin-m-smigelsky-esq/
http://timothyjlittlelaw.com/practice-areas/estate-administration-and-litigation/

Thursday, February 23, 2017

New Jersey Estate Litigation: Old Bridge Funeral Home v. Pruckowski, et al., and the Importance of Naming a Funeral Agent in Your Will

By: Justin M. Smigelsky, Esq.
 
Estate litigation includes, among numerous other potential claims, claims related to funeral arrangements, burial, and disinterment. Most disputes in this regard must be resolved by determining the authorized person to make such decisions. In a recent unpublished decision of the Appellate Division, Old Bridge Funeral Home, LLC v. Pruckowski, et al., the importance of designating a funeral agent in the Last Will and Testament was discussed. The relevant facts of the case were as follows:
  • The decedent executed a Last Will and Testament directing the executor to pay her “just debts and funeral expenses.”
  • The three children of the decedent were intentionally omitted from the Will.
  • Despite funeral arrangements having been made by the executor at a funeral home in Union, the decedent’s children wanted a funeral closer to Old Bridge, where the decedent’s family and friends lived.
  • The decedent’s son “booked” the funeral with Old Bridge Funeral Home for $30,789.00, and executed a “Payment Policy.”
  • The children executed a contract/promissory note to guarantee payment.
  • The funeral home filed suit for breach of contract when payment was not made, naming the children, the executor, and the estate as defendants.
The Appellate Division interpreted, and highlighted the significance of, N.J.S.A. 45:27-22(a) in reaching its decision. Pursuant to the statute, a testator/testatrix may appoint a person in his or her Will to control his or her funeral and disposition of human remains. It is not necessary that the appointed funeral representative be the executor/executrix of the Will, and the designated representative may act prior to the Will being admitted to probate. In the event that the decedent fails to make such a designation, or in the event that he or she died intestate (without a Will), the right to control the funeral and disposition, unless otherwise ordered by the Court, is set forth by statute in the following priority:
  1. Surviving spouse (unless an active restraining order exists or an intentional killing of the decedent by the surviving spouse has occurred);
  2. Majority of surviving adult children;
  3. Surviving parent(s);
  4. Majority of siblings;
  5. Other next of kin according to degree of consanguinity; and
  6. If no known relative, any representative providing written authorization.
As the decedent in Old Bridge Funeral Home, LLC v. Pruckowski, et al. did not designate a funeral agent in her Will, the statutory hierarchy applied – “as the surviving adult children of the decedent, the children had a higher priority right to control the funeral than [] the Executor.” Furthermore, the Court reasoned that “nothing in the statute [provides] that the statutory hierarchy shall be modified based on whether the children inherit under the Will.” The Court noted that it is the obligation of an executor to settle and distribute the estate in accordance with the Will and, therefore, to pay funeral expenses; however, the Court was clear that, when a third person makes funeral arrangements for a decedent at the expense of the estate, the expenses incurred must be reasonable. Ultimately, the Appellate Division remanded the matter to the trial court for the sole issue of determining what funeral expenses were reasonable, taking into account any applicable credit for the estate’s settlement with the funeral home.

Because estate and trust administration and litigation requires specialized knowledge, you may wish to consult with an experienced attorney if you are either a fiduciary or beneficiary of an estate or trust. Specifically, you may wish to contact an attorney if you have questions regarding burial or disinterment of a loved one, the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved


Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe Township, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Holmdel, Cliffwood Beach, Keyport, Keansburg, Middletown, Lincroft, Manalapan, Englishtown, Marlboro, Freehold), Union County (Rahway, Elizabeth), Ocean County, Somerset County, and Burlington County. If you have any questions or concerns regarding estate planning, estate administration, or estate litigation, contact the experienced estate attorneys at Timothy J. Little, P.C.

Estate Practice Specialties: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, caveats, the elective share, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

http://timothyjlittlelaw.com/new-jersey-estate-litigation-old-bridge-funeral-home-v-pruckowski-et-al-and-the-importance-of-naming-a-funeral-agent-in-your-will/
http://timothyjlittlelaw.com/firm/attorneys/justin-m-smigelsky-esq/
http://timothyjlittlelaw.com/practice-areas/estate-administration-and-litigation/

Wednesday, February 15, 2017

New Jersey Probate & Estate Litigation: Undue Influence as Grounds for Will Contest

By: Justin M. Smigelsky, Esq.
 
The validity of a purported Last Will and Testament may be challenged for many reasons including undue influence. Undue influence is defined as mental, moral, or physical exertion resulting in the destruction of the free agency of the testator. Despite the popular misconception, undue influence may be accomplished by either violent or peaceful means, including truthful statements or moral or psychological pressure on the testator.

Generally, the caveator or contestant of a Last Will and Testament has the burden of proving that a testator has been subjected to undue influence; however, a presumption of undue influence is raised where (1) there exists a confidential relationship between the testator and the person alleged to have exerted undue influence; and (2) suspicious circumstances exist as to the Will. Pursuant to New Jersey case law, if the Will benefits one who stood in a confidential relationship to the testator and if there are additional ‘suspicious’ circumstances, the burden shifts to the proponent of the Will to prove that the Will is valid. As explained in the landmark Haynes case,
The burden of proving undue influence lies upon the contestant unless the Will benefits one who stood in a confidential relationship to the testatrix and there are additional circumstances of a suspicious character present which require explanation. In such a case the law raises a presumption of undue influence and the burden of proof is shifted to the proponent.
(See the 1981 New Jersey Supreme Court decision of Haynes v. First Nat’l State Bank)

A confidential relationship may include guardian, power of attorney, partner, business agent, business associate, legal counsel, medical adviser, physician, nurse, and spiritual advisor. In regards to family relationships, a confidential relationship may be found where trust and confidence exist. In regards to “suspicious circumstances,” the suspicious circumstances need be no more than slight. As set forth in New Jersey case law,
Circumstances suggestive of inequality, unfairness, imposition, or overreaching give rise to a presumption of undue influence, and there is cast upon the proponent the burden of coming forward with evidence in quality and force sufficient to dispel the presumption…[i]n a confidential relation slight circumstances may shift the burden.
(See the 1956 New Jersey Supreme Court decision of Blake’s Will)

The following are some examples from New Jersey case law as to circumstances or actions of the influencing party deemed “suspicious”:
  • Where the Will provides for an unnatural disposition;
  • Initiation of the preparation of the Will;
  • Attending to the execution of the Will or selection of the drafting attorney or witnesses;
  • Where someone in a position of trust drafts the Will or causes it to be drafted;
  • Attempts to procure inter vivos gifts from the testator;
  • Where attempts are made to isolate or exclude the testator;
  • Efforts to conceal the Will or the fact that it has been drafted;
  • Taking possession of the Will;
  • Lying or spreading false stories about the natural beneficiaries;
  • Embittering the testator or creating fear, paranoia, or prejudices; or
  • Where the testator is mentally weak.
Because estate litigation and Will contests require specialized knowledge, you may wish to consult with an experienced attorney if you have questions regarding a loved one’s or your own Last Will and Testament, the probate process, administration of an estate or trust, the elective share of a surviving spouse, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved


Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe Township, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Holmdel, Cliffwood Beach, Keyport, Keansburg, Middletown, Lincroft, Manalapan, Englishtown, Marlboro, Colts Neck, Rumson, Freehold), Union County (Rahway, Elizabeth), Ocean County, Somerset County, and Burlington County.

Probate / Estate Practice Specialties: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, caveats, the elective share, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

http://timothyjlittlelaw.com/new-jersey-probate-estate-litigation-undue-influence-as-grounds-for-will-contest/
http://timothyjlittlelaw.com/firm/attorneys/justin-m-smigelsky-esq/
http://timothyjlittlelaw.com/practice-areas/estate-administration-and-litigation/

Monday, February 13, 2017

New Jersey Probate & Estate Administration: The Refunding Bond and Release

By: Justin M. Smigelsky, Esq.
 
Pursuant to the New Jersey Probate Code, the personal representative of an estate (executor, executrix, administrator, or administratrix) is required to “take a refunding bond” upon making a distribution to a beneficiary of the estate. Specifically, N.J.S.A. 3B:23-24 states:
A personal representative shall, on paying a devise or distributive share or on delivering an instrument of distribution to the person entitled, take a refunding bond therefor, to be filed in the office of the surrogate of the county wherein he received his letters or in the office of the clerk of the Superior Court, if he received his letters from the Superior Court.
Furthermore, pursuant to N.J.S.A. 3B:23-26, the Refunding Bond must be conditioned substantially as follows, for devisees and distributes, respectively:
That if any part or the whole of the devise shall at any time thereafter be needed to discharge any debt or debts, devise or devises, which the personal representative may not have other assets to pay, he, the devisee, will return his devise or that part thereof as may be necessary for the payment of the debts, or for the payment of a proportional part of the devises
Or, as to distributees,
That if any debt or debts, truly owing by the intestate, shall be afterwards sued for and recovered or otherwise duly made to appear, and there shall be no other assets to pay, he shall refund and pay back to the administrator his ratable part of the debt or debts, out of the part and share so allocated to him.
In modern practice, the personal representative of an estate will usually combine a Refunding Bond document with a Release document (jointly referred to as the “Refunding Bond and Release”) and, once properly executed by each beneficiary, file same with the county surrogate. In sum, the Refunding Bond and Release document serves a dual purpose: (1) the person or entity receiving a distribution from the estate agrees to refund out of his or her share the ratable part of any unpaid debts owed by the decedent for which no other assets are available for payment, and (2) to discharge the personal representative of the estate of his or her duties upon distribution to the beneficiary of his or her share. Generally, the personal representative should not make distributions to beneficiaries until a properly executed Refunding Bond and Release is secured from each beneficiary.

Because estate and trust planning, administration, and litigation requires specialized knowledge, you may wish to consult with an experienced attorney if you have questions regarding your estate plan, the probate process, administration of an estate or trust, Medicaid liens asserted against an estate, the elective share, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.

Justin M. Smigelsky, Esq. /  Timothy J. Little, P.C.  –  2017  –  All Rights Reserved


Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Aberdeen, Matawan, Hazlet, Holmdel, Cliffwood Beach, Keyport, Keansburg, Middletown, Lincroft, Manalapan, Englishtown, Marlboro, Freehold), Union County (Rahway, Elizabeth), Ocean County, Somerset County, and Burlington County (Chesterfield, Bordentown, Beverly, Florence, Medford, Mansfield, Maple Shade, Bass River). If you have any questions or concerns regarding estate planning, estate administration, or estate litigation, contact the experienced estate attorneys at Timothy J. Little, P.C.
 
Estate Practice Specialties: Drafting of Wills and Trusts, appointment and removal of fiduciaries, probate procedures, intestacy, fiduciary duties and obligations, fiduciary accountings and exceptions, fiduciary compensation, marshaling of assets, insolvency petitions, will contests and disputes, caveats, the elective share, Power of Attorney abuse, ejectment and eviction, Refunding Bonds and Releases, New Jersey Transfer Inheritance Tax (IT-R), New Jersey Estate Tax (IT-Estate)

http://timothyjlittlelaw.com/new-jersey-probate-estate-administration-the-refunding-bond-and-release/
http://timothyjlittlelaw.com/firm/attorneys/justin-m-smigelsky-esq/
http://timothyjlittlelaw.com/practice-areas/estate-planning/probate-and-estate-administration/

Wednesday, February 8, 2017

New Jersey Child Custody: Removal of a Child from New Jersey

By: Justin M. Smigelsky, Esq.
 
Following a divorce, removal of a minor child from the State of New Jersey by the custodial parent is governed by N.J.S.A. 9:2-2, which, in pertinent part, provides:
When the Superior Court has jurisdiction over the custody and maintenance of the minor children of parents divorced, separated or living separate, and such children are natives of this State, or have resided five years within its limits, they shall not be removed out of its jurisdiction against their own consent, if of suitable age to signify the same, nor while under that age without the consent of both parents, unless the court, upon cause shown, shall otherwise order.
The requirement that children of divorced parents are not to be removed from this jurisdiction without either the consent of the non-custodial parent or for cause shown is subject to the exercise of judicial discretion. The task of the Court in achieving the purpose of N.J.S.A. 9:2-2 is to balance the right of the child and the non-custodial parent with the right of a custodial parent to seek a better life and, in striking that balance, the Court must be guided by what is best for the child. An appropriate disposition of a removal application is not necessarily the one that satisfies one parent or even splits the difference between the parents, but the one that will not be detrimental to the child.
Pursuant to the landmark decision of Baures v. Lewis, 167 N.J. 91, 116 (2001), the preliminary question in any case in which a parent seeks to relocate with a child is “whether it is a removal case or whether by virtue of the arrangement between the parties, it is actually a motion for a change in custody.” It is important to note that, in determining the custodial arrangement between the parties, the labels used in the Marital Settlement Agreement or divorce decree are not dispositive.
Where physical custody of the child is jointly shared, the parent seeking to relocate must demonstrate changed circumstances sufficient to warrant obtaining primary physical custody of the child. Where a parent already exercises primary custody, he or she must only demonstrate (1) a good faith reason for the move, and (2) that the move is not inimical to the child’s interests. As set forth in Baures, in assessing whether an application for removal has been made in good faith and whether the move will not be inimical to the child’s best interests, the Court should consider the following factors, with the amount of relevancy and weight given determined by the circumstances of each case:
  1. the reasons given for the move;
  2. the reasons given for the opposition;
  3. the past history of dealings between the parties insofar as it bears on the reasons advanced by both parties for supporting and opposing the move;
  4. whether the child will receive educational, health and leisure opportunities at least equal to what is available here;
  5. any special needs or talents of the child that require accommodation and whether such accommodation or its equivalent is available in the new location;
  6. whether a visitation and communication schedule can be developed that will allow the noncustodial parent to maintain a full and continuous relationship with the child;
  7. the likelihood that the custodial parent will continue to foster the child’s relationship with the noncustodial parent if the move is allowed;
  8. the effect of the move on extended family relationships here and in the new location;
  9. if the child is of age, his or her preference;
  10. whether the child is entering his or her senior year in high school at which point he or she should generally not be moved until graduation without his or her consent;
  11. whether the noncustodial parent has the ability to relocate; and
  12. any other factor bearing on the child’s interest.
In a 2016 reported decision of the Appellate Division, the Appellate Court addressed a non-relocation provision contained within the parties’ recently executed Marital Settlement Agreement and the impact of a spouse’s negotiation for same in bad faith. In Bisbing v. Bisbing, 445 N.J. Super 207, the parties agreed to joint legal custody with primary residential custody to the wife so long as she did not remove the children from the State, to live within twenty (20) miles of each other in New Jersey, and that neither party could remove the children from New Jersey without consent of the other party. However, nine (9) months after the Judgment of Divorce, the wife informed her ex-husband that she desired to relocate the children from New Jersey to Utah. In a well-reasoned decision, the Appellate Division determined that a plenary hearing was necessary and, if the negotiation for the non-relocation provision was in bad faith, the more-stringent best-interests-of-the-child standard would apply, as opposed to the Baures factors. On the other hand, if the party alleging bad faith could not demonstrate that bad faith negotiations took place, one of the following tests would be applied:
  1. If wife could demonstrate a substantial and unanticipated change in circumstances to warrant avoidance of the agreed-upon non-relocation provision, the Baures analysis would be appropriate; or
  2. If wife failed to demonstrate a substantial and unanticipated change in circumstances, the Court must determine the best interests of the children.
This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.  If you have any questions in regards to divorce in New Jersey, alimony, child support, equitable distribution, or family law, you may wish to consult with an experienced family law attorney.

Family Law Practice Specialties: Divorce, equitable distribution of assets and liabilities, alimony, domestic violence, child custody, child support, parenting time, emancipation applications, removal applications, Marital Settlement Agreements, post-judgment enforcement and modification applications

Timothy J. Little, P.C. is a full-service law firm with offices in Woodbridge and Chesterfield, New Jersey. Timothy J. Little, P.C. offers specialized legal assistance to individuals, families and businesses throughout New Jersey including Middlesex County (Old Bridge, Woodbridge, Sayreville, East Brunswick, Spotswood, Perth Amboy, Dunellen, Colonia, Sewaren, Iselin, Avenel, Fords, Keasbey, Menlo Park, Port Reading, South Amboy, Monroe, Edison, Carteret, Cranbury, Helmetta, South River, Milltown, Highland Park, Jamesburg, Laurence Harbor), Monmouth County (Hazlet, Aberdeen, Matawan, Middletown, Freehold), Union County, Ocean County, Somerset County, and Burlington County. If you have any questions or concerns regarding family law or divorce, please contact the attorneys at Timothy J. Little, P.C.
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