NJ & CT News

NEW JERSEY

Guns Seized Based on Domestic Violence Order: Did the State Go Too Far?

In the case of State v. Harris, A-111-10, New Jersey's Supreme Court will decide the question whether weapons confiscated to prevent an accused abuser from harming a person seeking court-ordered protection may later be used as evidence in a criminal prosecution. The court heard arguments in early January in the case of a Trenton man whose guns were seized in 2009 after his girlfriend filed a domestic abuse complaint, prompting a judge to issue a warrant under the Prevention of Domestic Violence Act permitting the police to confiscate any weapons in the man's possession. One of the guns taken from the accused turned out to be stolen; this was the basis for two criminal charges against him. The criminal court judge suppressed the gun evidence, concluding that “special needs” warrants issued based on domestic-violence complaints are intended not to acquire evidence of a crime but to protect the potential victim. The accused man's attorney, John Furlong, of Furlong & Krasny in Ewing, applauded the ruling, saying that allowing the police to seize items under a domestic-violence warrant and then permitting them to use those items in an unrelated criminal prosecution “would be among many temptations the police could use as a mechanism to get into someone's house.”

Stay-Away Orders Must Be Specific

In State v. S.K., A-1488-10, an appellate court determined that the language in a restraining order prohibiting a man from going near his ex-wife's home, workplace or “any other place where [she] is located,” was too broad. New Jersey's Prevention of Domestic Violence Act permits courts to issue restraining orders requiring a person to stay away from “the residence, property, school, or place of employment of the victim or of other family or household members of the victim” as well as “any specified place that is named in the order and is frequented regularly by the victim or other family or household members.” However, apart from the home and workplace, the order at issue in State v. S.K. did not name specific places that were off limits, putting the ex-husband in jeopardy of violation if he happened upon his ex-wife, wherever she might be. In reversing the man's conviction for going too near his ex-wife ' when both parents attended their child's soccer game ' the court held that the restriction imposed by the order was “virtually impossible … to obey at all times,” and was therefore invalid.

Custodial Parent Cannot Unilaterally Change Children's Names

New Jersey's Appellate Division ruled in Emma v. Evans, A-2303-10, that the decision to change a child's surname does not automatically fall to the divorced parent with primary custody of the children; any dispute between the parents on this matter must be decided based on a determination of the children's best interests. The case involved a couple whose children were born during their 10-year marriage (in 2006 and 2007) and took their father's name at birth. The couple divorced in 2010. Later that same year, the mother ' with whom the children primarily resided ' unilaterally changed her children's last name by hyphenating her ex-husband's and her own surnames. When the ex-husband sought a court order preventing her from doing this, the court relied on the cases of Ronan v. Adely, 182 N.J. 103 (2004), and Gubernat v. Deremer, 140 N.J. 120 (1995), to find that this decision was to be left to the parent with physical or sole custody. The appeals court interpreted those cases differently, however, concluding that they primarily espoused considering the children's best interests, even though they ultimately said that the parent with physical custody should have the final say. The difference here, the appeals court concluded, was that in Ronan and Gubernat, the parents involved were not in a long-term, committed, relationship. “The presumption [that the primary custodian may choose a child's surname] applies less logically or fairly in cases where the parents entered into a committed relationship of significant duration, where the children were originally named by a marital partnership ' rather than one parent ' undoubtedly with the intent that the designation remain permanent,” stated the court.

CONNECTICUT

Mediation Confidentiality? Apparently, It's Not So Important

In a Jan. 10 decision, the U.S. Bankruptcy Court for the District of Connecticut ordered a mediator in an abandoned divorce matter to turn over the couple's financial records to the Bankruptcy Trustee handling the husband's bankruptcy matter. In re Goldberg, 2012 Bankr. LEXIS 61. The court made this decision after balancing the Trustee's duty to obtain all pertinent debtor financial information against the duty of participants in mediations to preserve confidentiality, as codified in Conn. Gen. Stat. ' 52-235d. That statute provides, inter alia, that oral and written communications produced and obtained in the course of mediation are not to be disclosed unless “(4) the disclosure is required as a result of circumstances in which a court finds that the interest of justice outweighs the need for confidentiality, consistent with the principles of law.” In Goldberg, a divorcing couple had abandoned their Connecticut mediation and instead obtained a quick divorce in the Dominican Republic. That divorce decree contained no financial information. Noting that the husband had admitted to taking part in a long-running Ponzi scheme to defraud investors, the court determined that “the Trustee has both the duty to search for assets and cause to question the credibility of the Goldbergs' claims regarding their assets.” On the other end of the scales was the aim of encouraging full disclosure in mediation proceedings. The Bankruptcy Court quickly dismissed this concern, finding the rights of the creditors outweighed it. This was especially true, said the court, because this particular mediation had been abandoned by the debtor and his wife, and so would not be affected.

NEW JERSEY

Guns Seized Based on Domestic Violence Order: Did the State Go Too Far?

In the case of State v. Harris, A-111-10, New Jersey's Supreme Court will decide the question whether weapons confiscated to prevent an accused abuser from harming a person seeking court-ordered protection may later be used as evidence in a criminal prosecution. The court heard arguments in early January in the case of a Trenton man whose guns were seized in 2009 after his girlfriend filed a domestic abuse complaint, prompting a judge to issue a warrant under the Prevention of Domestic Violence Act permitting the police to confiscate any weapons in the man's possession. One of the guns taken from the accused turned out to be stolen; this was the basis for two criminal charges against him. The criminal court judge suppressed the gun evidence, concluding that “special needs” warrants issued based on domestic-violence complaints are intended not to acquire evidence of a crime but to protect the potential victim. The accused man's attorney, John Furlong, of Furlong & Krasny in Ewing, applauded the ruling, saying that allowing the police to seize items under a domestic-violence warrant and then permitting them to use those items in an unrelated criminal prosecution “would be among many temptations the police could use as a mechanism to get into someone's house.”

Stay-Away Orders Must Be Specific

In State v. S.K., A-1488-10, an appellate court determined that the language in a restraining order prohibiting a man from going near his ex-wife's home, workplace or “any other place where [she] is located,” was too broad. New Jersey's Prevention of Domestic Violence Act permits courts to issue restraining orders requiring a person to stay away from “the residence, property, school, or place of employment of the victim or of other family or household members of the victim” as well as “any specified place that is named in the order and is frequented regularly by the victim or other family or household members.” However, apart from the home and workplace, the order at issue in State v. S.K. did not name specific places that were off limits, putting the ex-husband in jeopardy of violation if he happened upon his ex-wife, wherever she might be. In reversing the man's conviction for going too near his ex-wife ' when both parents attended their child's soccer game ' the court held that the restriction imposed by the order was “virtually impossible … to obey at all times,” and was therefore invalid.

Custodial Parent Cannot Unilaterally Change Children's Names

New Jersey's Appellate Division ruled in Emma v. Evans, A-2303-10, that the decision to change a child's surname does not automatically fall to the divorced parent with primary custody of the children; any dispute between the parents on this matter must be decided based on a determination of the children's best interests. The case involved a couple whose children were born during their 10-year marriage (in 2006 and 2007) and took their father's name at birth. The couple divorced in 2010. Later that same year, the mother ' with whom the children primarily resided ' unilaterally changed her children's last name by hyphenating her ex-husband's and her own surnames. When the ex-husband sought a court order preventing her from doing this, the court relied on the cases of Ronan v. Adely , 182 N.J. 103 (2004), and Gubernat v. Deremer , 140 N.J. 120 (1995), to find that this decision was to be left to the parent with physical or sole custody. The appeals court interpreted those cases differently, however, concluding that they primarily espoused considering the children's best interests, even though they ultimately said that the parent with physical custody should have the final say. The difference here, the appeals court concluded, was that in Ronan and Gubernat, the parents involved were not in a long-term, committed, relationship. “The presumption [that the primary custodian may choose a child's surname] applies less logically or fairly in cases where the parents entered into a committed relationship of significant duration, where the children were originally named by a marital partnership ' rather than one parent ' undoubtedly with the intent that the designation remain permanent,” stated the court.

CONNECTICUT

Mediation Confidentiality? Apparently, It's Not So Important

In a Jan. 10 decision, the U.S. Bankruptcy Court for the District of Connecticut ordered a mediator in an abandoned divorce matter to turn over the couple's financial records to the Bankruptcy Trustee handling the husband's bankruptcy matter. In re Goldberg, 2012 Bankr. LEXIS 61. The court made this decision after balancing the Trustee's duty to obtain all pertinent debtor financial information against the duty of participants in mediations to preserve confidentiality, as codified in Conn. Gen. Stat. ' 52-235d. That statute provides, inter alia, that oral and written communications produced and obtained in the course of mediation are not to be disclosed unless “(4) the disclosure is required as a result of circumstances in which a court finds that the interest of justice outweighs the need for confidentiality, consistent with the principles of law.” In Goldberg, a divorcing couple had abandoned their Connecticut mediation and instead obtained a quick divorce in the Dominican Republic. That divorce decree contained no financial information. Noting that the husband had admitted to taking part in a long-running Ponzi scheme to defraud investors, the court determined that “the Trustee has both the duty to search for assets and cause to question the credibility of the Goldbergs' claims regarding their assets.” On the other end of the scales was the aim of encouraging full disclosure in mediation proceedings. The Bankruptcy Court quickly dismissed this concern, finding the rights of the creditors outweighed it. This was especially true, said the court, because this particular mediation had been abandoned by the debtor and his wife, and so would not be affected.