PROTECTING YOUR RIGHT TO
HAVE THE CHILDREN STAY

IS THAT A DETECTIVE OR TEACHER?

Although the Supreme Court gives students the constitutional protection in the classroom, these rights have diminished. The need for warrants before searching a students belongings and probable cause have been replaced with “reasonable” grounds as a standard for search. Today, public schools and police duties are overlapping resulting in schools being extensions of law enforcement. Public schools are required to develop procedures to initiate and conduct searches of students, their property and personal property. Schools must cooperate in conducting undercover operations in schools. Teachers now have a right to search students , interrogate students and to preserve evidence belonging to the student. They must refer all possible criminal matters to the police no matter how trivial. This may sound like a good policy but problems, previously handled by the administration for minor offenses, are now going to juvenile court. Children should be aware of their rights. Get a handbook of students’ rights.

WHO GETS THE DOG?

Judges are not happy when an attorney raises questions regarding the family pet and visitation. Nonetheless, there are some legitimate reasons why they arise. Let’s face it, pets give unconditional love. They are loyal, affectionate and playful. The opposite of how one sees their spouse while divorcing! In 1944, the Court in Ill. found it would be a “tragedy” to give the dog to the wife if the love, affection and loyalty are for the husband. ( I wonder how they proved their case). California looks to whom the pet is registered. Most states regard pets as chattel and distribute accordingly (Imagine!) Rhode Island has a statute as to Guardianship of pets. A Memphis Court held a trial for custody and ruled that the pick up and drop off of the dog was to be at the local kennel. Colorado has awarded dog support. Alaska gave a husband full custody and the wife visitation and said the husband does not have to consult with the wife regarding medical treatment for the dog. Recently, in NJ an attorney reported that a couple decided to participate in binding arbitration to resolve custody of the dog. Mere cost in attorney’s fees....$10,000. My suggestion, as the children go...so goes the family pet. If no children, call me, I’ll mediate!

BATTERED WOMEN’S SYNDROME

In two recently decided cases, the Supreme Court permitted women to rely on this “syndrome” to defend against crimes committed against someone other than their tormentors. In one case, a woman who abused her stepson, claimed that her husband abused her physically and coerced her into performing certain acts to the stepson in his presence. In the second case, the defendant claimed the defense of duress to explain why she stole money for six years. She claimed her son abused her and threatened her.
The end result: Battered women may be found to lack criminal culpability when their batterers force them to commit crimes.

BANKRUPTCY ISSUES IN DIVORCE:

Bankruptcy cases may require application of matrimonial law to:
1.Determine the property of the bankruptcy estate- If a debtor files a bankruptcy petition after the entry of a Judgment of Divorce which requires transfer of property to the non-debtor spouse, the debtor holds the property in a constructive trust and the property is excluded from the bankruptcy estate.
2. Determine the effect of the automatic stay- The filing of a bankruptcy petition “stays” or holds off the determination of the interests of a debtor to the property subject to equitable distribution.
3. Sale of marital property in the bankruptcy-A trustee in bankruptcy may sell property jointly owned by the debtor and non-debtor spouse subject to certain conditions.
4. Treatment of alimony and child support-A bankruptcy discharge does not discharge an individual debtor from any debt owed to a spouse, former spouse or child of the debtor for alimony, support or maintenance.
Caveat: In order to avoid losing retirement benefits, I have had clients earmark the retirement account for child support so it would not be discharged in bankruptcy. It worked!

CASES IN THE NEWS

SALE OF MARITAL ASSETS

In June, 2005, New Jersey courts ruled that a court can order the sale of the marital residence/assets prior to the final divorce. Prior to this, courts could not order the sale of marital assets absent extenuating circumstances. This could allow a spouse to secure money for future housing or education; It can also provide a cushion to help meet unexpected needs during the divorce such as repairs or a much needed vacation!

Domestic Partner Issues:

The non-childbearing mother can now be named as a second mother on the child’s birth certificate. New Jersey is the fifth state to acknowledge a non-biological parent of the same sex, who consents to the partner’s artificial insemination.

A trial judge has decided that same-sex partners registered under the Domestic Partnership Act can win damages for loss of consortium. You can only claim damages after a couple registers under the act.

Pursuant to New Jersey’s Domestic Partnership Act a woman recently sued a county surrogate for refusing to recognize her as her deceased partner’s heir and estate representative. Under the Probate code, a spouse would be able to administer her spouse’s estate, there would be no bond requirement and there would be rights of inheritance. I’ll keep you posted as to the outcome of this case!