NJ & CT News

Gestational Mother Loses Custody Fight to Biological Father

Superior Court Judge Francis Schultz of Hudson County, NJ, has awarded custody of twins to their biological father, over the objections of the surrogate mother who carried them. The unusual twist to the case of A.G.R. v. D.R.H., HUD-FD-09-1838-07, is that the surrogate mother, who was implanted with fertilized donor eggs, is also the sister of the biological father's same-sex partner, Donald Robinson Holligsworth. (The biological father, Sean Hollingsworth, was married to Robinson Hollingsworth in California, and the two have also been joined in a civil union in accordance with New Jersey law.) The court, following the precedent set in In the Matter of Baby M, 109 N.J. 396 (1988), in which the State Supreme Court held surrogacy contracts unenforceable as a matter of public policy and said custody should be awarded on the basis of the child's best interests, gave the biological father custody of the children. The judge did grant visitation rights to the surrogate mother, but decided it was not in the children's best interests to have her raise them full time, as she and the grandmother who would have babysat the twins daily are adamantly anti-gay and anti-surrogacy. Their views, the court opined, would have been detrimental to the girls' well being, considering the way that they were brought into the world. In addition, other circumstances weighed in favor of granting custody to the biological father, such as his stable and financially comfortable home life, and the fact that he often works from home and can spend more time with the girls.

Visiting Child While on Drugs Is Not Child Neglect

New Jersey's Appellate Division recently issued a precedential ruling in Division of Youth and Family Services v. V.T., A-2571-10, in which it held that a man could not be found guilty for child neglect simply on the basis that he had drugs in his system during a supervised visit with his child. Although the man had tested positive for marijuana and cocaine during two supervised visits, the court determined, under Title 9, that this did not constitute abuse or neglect as a matter of law. The court noted in its opinion that the Division of Youth and Family Services “would be quickly overwhelmed if law enforcement was required to report every individual under the influence who had children.”

CONNECTICUT

Failure to Disclose Income Renders Pre-Nup Unenforceable

The Appellate Court of Connecticut has held, in Oldani v. Oldani, 2011 Conn. App. LEXIS 600 (12/20/11), that a trial court dissolving a couple's marriage should not have enforced the parties' pre-nuptial agreement as the husband did not give a full disclosure of his income to his then-fianc'e prior to her signing. The financial disclosures he provided to her included information about commercial properties in which he owned percentages, but they did not describe the income he received from these. The husband argued that his fianc'e and her attorney could have looked over the figures and extrapolated his income from them, or could have asked more questions of him once they saw his disclosures, but this the court found insufficient, stating, “[T]he law places no duty or burden on either party to inquire as to the requisite disclosure of the other party, only a duty on each to inform.” See Friezo v. Friezo, 281 Conn. 166 (2007). As the husband had failed to comply with the prerequisite duties of disclosure embodied in Conn. Gen. Stat. ' 46b-36g(a)(3), the appeals court determined he could not now enforce the contract over the objections of his wife.

NEW JERSEY

Political Fight Puts Matrimonial Matters on Hold

Citing the ongoing freeze in judicial appointments, Essex County Assignment Judge Patricia Costello informed Essex County Bar Association President Alan Model by letter that matrimonial and complicated civil trials would be suspended as of Dec. 7, 2011. There are 11 vacancies among the 44 judicial positions in the county, which encompasses the City of Newark. No judge has been sworn in to fill any of those vacancies since January 2010 because Gov. Chris Christie refuses to make any judicial appointments until his nominee for commissioner of the Department of Education is approved. Cerf's nomination has been blocked for over a year by Ronald Rice, D-Essex, co-chair of the Legislature's Joint Committee on the Public Schools, who wants to question Cerf about his relationship with Newark Mayor Cory Booker. Gov. Christie opposes any such questioning. At a town hall meeting in Teaneck a day after Judge Costello suspended matrimonial and other complicated civil actions pending more judicial appointments, Gov. Christie was unrepentant, stating, “I'm not agreeing to anything until they agree to everything, and that's the bottom line. The only power I have in this is the power to nominate. They have the power to block and not confirm. OK? So the standoff now is now affecting the citizens of Essex County.”

Gestational Mother Loses Custody Fight to Biological Father

Superior Court Judge Francis Schultz of Hudson County, NJ, has awarded custody of twins to their biological father, over the objections of the surrogate mother who carried them. The unusual twist to the case of A.G.R. v. D.R.H., HUD-FD-09-1838-07, is that the surrogate mother, who was implanted with fertilized donor eggs, is also the sister of the biological father's same-sex partner, Donald Robinson Holligsworth. (The biological father, Sean Hollingsworth, was married to Robinson Hollingsworth in California, and the two have also been joined in a civil union in accordance with New Jersey law.) The court, following the precedent set in In the Matter of Baby M, 109 N.J. 396 (1988), in which the State Supreme Court held surrogacy contracts unenforceable as a matter of public policy and said custody should be awarded on the basis of the child's best interests, gave the biological father custody of the children. The judge did grant visitation rights to the surrogate mother, but decided it was not in the children's best interests to have her raise them full time, as she and the grandmother who would have babysat the twins daily are adamantly anti-gay and anti-surrogacy. Their views, the court opined, would have been detrimental to the girls' well being, considering the way that they were brought into the world. In addition, other circumstances weighed in favor of granting custody to the biological father, such as his stable and financially comfortable home life, and the fact that he often works from home and can spend more time with the girls.

Visiting Child While on Drugs Is Not Child Neglect

New Jersey's Appellate Division recently issued a precedential ruling in Division of Youth and Family Services v. V.T., A-2571-10, in which it held that a man could not be found guilty for child neglect simply on the basis that he had drugs in his system during a supervised visit with his child. Although the man had tested positive for marijuana and cocaine during two supervised visits, the court determined, under Title 9, that this did not constitute abuse or neglect as a matter of law. The court noted in its opinion that the Division of Youth and Family Services “would be quickly overwhelmed if law enforcement was required to report every individual under the influence who had children.”

CONNECTICUT

Failure to Disclose Income Renders Pre-Nup Unenforceable

The Appellate Court of Connecticut has held, in Oldani v. Oldani, 2011 Conn. App. LEXIS 600 (12/20/11), that a trial court dissolving a couple's marriage should not have enforced the parties' pre-nuptial agreement as the husband did not give a full disclosure of his income to his then-fianc'e prior to her signing. The financial disclosures he provided to her included information about commercial properties in which he owned percentages, but they did not describe the income he received from these. The husband argued that his fianc'e and her attorney could have looked over the figures and extrapolated his income from them, or could have asked more questions of him once they saw his disclosures, but this the court found insufficient, stating, “[T]he law places no duty or burden on either party to inquire as to the requisite disclosure of the other party, only a duty on each to inform.” See Friezo v. Friezo , 281 Conn. 166 (2007). As the husband had failed to comply with the prerequisite duties of disclosure embodied in Conn. Gen. Stat. ' 46b-36g(a)(3), the appeals court determined he could not now enforce the contract over the objections of his wife.