Marriage Equality- How does it affect us?

By:  Deena L. Betze, Esq.

This week, the United States Supreme Court held that the 14th Amendment of the U.S. Constitution requires states to recognize and grant marriages between same sex couples in Obergerfell, et al. v. Hodges, Director, Ohio Department of Health, et. al., recognizing marriage as a fundamental constitutional right for same sex couples as well as opposite sex couples.

How does this landmark decision affect our lives?

There are two equally correct and opposite answers to this question from my perspective:

1. Not at all:

The arguments against our nation finally recognizing marriage equality mostly revolve around the suggestion that same sex marriage somehow diminishes the sanctity of heterosexual marriage. To the contrary, the plaintiffs in Obergefell sought recognition of their unions based on their belief in the institution of marriage, as well as their need for the rights, dignities and benefits bestowed upon married couples. Far from devaluing marriage, these plaintiffs sought to honor and uphold the institution. If this has any effect at all upon heterosexual married couples, it is to support the concept of a lifelong commitment between two loving adults and promotion of the family unit that marriage represents. It does not in any way detract from the institution of marriage so many hold sacred or otherwise affect the rights or liberties that previously existed for opposite sex marriages.

2. A whole lot:

This is a fundamental civil rights issue that affects us all. Any time there is a landmark civil rights decision in this country it reminds me of how amazing our system of law and government can be, and makes me proud to be an American. This decision represents a victory for equal rights for all Americans. On this 4th of July week, I am reminded of other groundbreaking SCOTUS decisions deemed controversial in their time, which also redefined and recognized equality and civil rights, such as Loving v. Virginia, which struck down individual state’s bans on interracial marriage.

Do these musings sound strange coming from a divorce attorney?

Not at all, from my perspective, which is based on the concept that our role as family law attorneys is to help and guide our clients through one of the most difficult transitions they will face in their lifetimes, and do our best to preserve their families in the process.

As an adoption attorney, I rejoice for the many children whose families can now be complete and equal to their peers.

This decision promotes and preserves family units, equality and freedom of choice. On the eve of the 4th of July weekend, let us remember and reflect upon the freedoms, both of religion and personal choice, upon which this great country was based, and rejoice in this breakthrough decision that celebrates and upholds those principles.

Primary Custodial Parent – A Higher Duty

By:  Deena L. Betze, Esquire

My clients with children are often faced with a barrage of custody and parenting terms that are ambiguous, confusing, and sometimes meaningless to them. Joint custody, sole custody, shared parenting, primary physical custody, joint legal custody… In most instances, their real concern is protecting their children from the damage that can be inflicted upon them by a contentious divorce and traumatic transition when their parents separate. First, a quick primer on some of the terms used in New Jersey custody and parenting time matters:

• Joint Legal Custody: the parents consult and attempt to agree on major decisions affecting the health, education and welfare of the children.
• Sole Legal Custody: one parent has the ability to make major decisions affecting the children’s health, education and welfare.
• Parenting Time: the time a child spends in the care of a parent.
• Shared Parenting: generally, this is an equal or close to equal parenting time arrangement, with the child spending approximately the same amount of time with each parent.
• Joint Physical Custody: the children spend time living with both of their parents.
• Sole Physical Custody: the children reside only with one parent.
• Primary Physical Custody: the parent with whom the children reside most of the time and have their official address is the primary custodial parent.

In many cases, although the parties share joint legal custody, one parent is designated as the parent of primary residence. The children reside with that parent and have parenting time with the other parent. I try very hard to educate my clients on what I call the “higher duty” of the primary custodial parent to foster and encourage the children’s relationship with the other parent, which they are in a uniquely powerful position to influence. I give all of my clients with children a copy of the “Children’s Bill of Rights” promulgated by the New Jersey Superior Court and reprinted below:

CHILDREN’S BILL OF RIGHTS

1. The right not to be asked to choose sides between their parents.

2. The right not to be told the details of a bitter, nasty divorce.

3. The right not to be told bad things about the other parent’s personality or character.

4. The right to privacy when talking to either parent on the telephone.

5. The right not to be cross-examined by one parent after visiting or talking with the other.

6. The right not to be asked to be a messenger from one parent to the other.

7. The right not to be asked by one parent to tell the other parent untruths.

8. The right not to be used as a confidante regarding the divorce proceedings by one parent or the other.

9. The right to express feelings, whatever those feelings may be.

10. The right to choose not to express certain feelings.

11. The right to be protected from parental warfare.

12. The right not to be made to feel guilty for loving both parents.

I cannot stress strongly enough how important it is for a parent to abide by these rules—even (and often, especially) if the other parent is not. Moreover, I tell my clients who are primary custodians that they have a responsibility to encourage their children’s relationship with the other parent and to ensure that they feel comfortable expressing their love of the other parent without fear of being disloyal to the parent with whom they live.

I tell my clients all the time that their child’s mother and father are each a part of them and tied into their identity. Making disparaging remarks about a child’s other parent is perceived by that child as a personal attack on them and can be internalized. “If my Dad is stupid, I must be stupid too.” The way the custodial parent talks about and treats their children’s other parent is observed very closely and often modeled by the children. If you want your children to be confident, respectful adults, you must treat their other parent with respect and respect the importance of their time with your children and their role in your children’s lives. Remember, all things being natural, you are going to have to have a relationship with your child’s other parent for the rest of your life. It will be nicer for everyone, especially your children, if that relationship is based upon mutual respect.

It is also important to make the time children spend with their other parent as routine and non-negotiable as possible. I often remind parents that they do not negotiate whether their children attend school, soccer practice or piano lessons. Time with their other parent should be the same. This will have the added benefit of making a child feel more relaxed about transitioning between homes.

In every divorce I have handled involving children, my clients, without fail, tell me that safeguarding their children from the trauma and damage divorce can cause is the most important goal they have. I tell them that if that is the case, they must do everything they can to make their children feel safe expressing their love for the other parent, which often means putting aside their own emotional frustrations. Doing so will go a long way toward minimizing the negative impact separation and divorce can have on a child. The parent with whom the children live is by far the most influential person in their lives and has a higher duty to ensure the children have a healthy relationship with the non-custodial parent.

Why adopt in New Jersey?

By Deena Betze, Esq.

New Jersey is known nationally as an “adoption friendly” state. Families from all over the country come to New Jersey adoption agencies to place and adopt their children in this state. Why is New Jersey considered one of the best places to adopt? New Jersey statutes, case law and public policy all favor adoption and the best interests of the child. The best interest of the child is the standard by which New Jersey courts must base all adoption decisions. Thus, New Jersey laws strive to promote finality of family arrangements for the child being placed for adoption.

That policy translates to a more “user friendly” and streamlined process for prospective adoptive parents. In New Jersey, if a birth mother signs a surrender of her parental rights from an approved agency at least 72 hours after the birth of the child, that surrender of parental rights and consent to adoption is irrevocable. There is no waiting period during which she could change her mind. The only way to contest an agency surrender is to prove duress, misrepresentation or fraud on the part of the agency in taking the surrender. State approved agencies are under the strict supervision of the state and are closely regulated and monitored. Of course, it is always important to make sure the agency you are working with is licensed, state approved and in good standing. If you are adopting internationally, you should know whether the agency you are working with is Hague accredited.

In addition, birth mothers in New Jersey are not required to name or identify the birth father. The adoption agency must attempt to undertake a diligent inquiry to identify and notify the biological father, unless they cannot because the birth mother refuses or is unable to identify him. If an identified birth father is notified of the proposed adoption and does not respond to the agency’s notification, or if the agency is unable to identify or locate a birth father, the birth father has an affirmative obligation to assert his parental rights; if he fails to assert his rights, he will lose his opportunity to contest the adoption. If, within 120 days of the birth of the child, the biological father does not seek to amend the birth certificate to add his name, or attempt to establish his paternity by filing a complaint with the Surrogate’s Office, he will not receive any further notice of the adoption proceedings. In those circumstances, when the complaint for adoption is filed by the adoptive parents, they are not required to serve the birth father. In other words, if the biological father does not take specific steps to assert his parental rights within the first four months of the child’s life, his parental rights may be terminated without his participation in the adoption proceedings. In many cases like that, it is no longer necessary to pursue separate termination proceedings against the biological father, which are still required in many states.

Finally, while there are still many states which discriminate against parents wishing to adopt based upon marital status or sexual orientation, no such discrimination exists in New Jersey. There are no restrictions on who may adopt in New Jersey based upon gender, marital status, or sexual orientation. In New Jersey, not only can married couples adopt children, but also gay and lesbian couples, as well as single parents.

An attorney’s role in New Jersey really does not begin until after a child has been placed for adoption, at which time, certain statutory requirements and timelines must be met before the adoption complaint can be filed. These requirements differ depending on whether the child was placed through an approved agency or through a private placement. They will be detailed in a future article. If you are interested in learning more about agency adoptions in New Jersey, here are some helpful links:

  1. http://www.jointcouncil.org/
  2. http://www.goldencradle.org
  3. http://www.irs.gov/taxtopics/tc607.html

New Jersey is an adoption friendly state, with adoption laws that focus on the best interests of the child, open to all adults interested in adopting children born in any state or in some foreign countries.