NJ & CT News

Is Prenatal Drug Use Per Se Evidence That a Mother Is Unfit?

The State Supreme Court is currently considering whether a mother's use of illicit drugs while pregnant is per se evidence that she is an unfit parent. The case is DYFS v. A.L., A-28-11, where a mother had her newborn child taken from her custody when it tested positive for trace amounts of cocaine soon after birth. The lower court was unconvinced by the mother's explanation: that she had inadvertently inhaled some cocaine after a bag of the substance, belonging to a friend, exploded in the car in which they were riding after she snatched it from its owner. It did not help the mother's case that she had tested positive for marijuana when she sought treatment for an infection when she was five months pregnant. On appeal, the mother's attorney, Glen Rock, NJ, solo Clara Licata, argued that parental unfitness may be found only when a child has been harmed, and no evidence that the child suffered harm due to its exposure to cocaine was shown.

CONNECTICUT

Discussion of Pre-Marriage Relationship Does Not Mean Court Considered It

In Langley v. Langley, 137 Conn.App. 588 (8/21/12), the Appellate Court of Connecticut recently upheld a trial court's calculation of spousal support after finding there was inadequate evidence that the lower court inappropriately based its decision on the duration of the parties' past marriage and period of cohabitation. The case involved parties who met online when the woman was living in Moscow and the man in Connecticut. The woman moved to Connecticut, where the couple cohabited together for part of 2004, before marrying that same year. In October 2006, the husband filed for divorce, then told his wife that she need not do anything in response to the summons and complaint she had received. Believing him, she did nothing, and he obtained a default dissolution of marriage on March 1, 2007. A week later, however, the parties remarried. On Feb. 9, 2009, the husband again filed for divorce, which was granted. He was unhappy this time with the court's financial orders, and appealed, claiming the court erred by considering the periods of the parties' cohabitation and first marriage when calculating his support obligation.

The appeals court noted that trial courts in dissolution matters are not permitted to consider periods of cohabitation or previous marriage when calculating the length of a marriage; however, they may consider events occurring outside of the period of a current marriage if those events bear indirectly on other criteria the court is permitted to consider. In this case, the appeals court found that although the trial court's opinion mentioned the periods in which the couple had cohabited or been previously married, this did not mean that those periods formed part of the basis for the financial determinations. Instead, all indications were that these were discussed merely to explain the factual and procedural background of the case. Because there was no evidence that the trial court abused its discretion in this regard, its decision was upheld.

NEW JERSEY

Bill Would Change Date For Testing Validity of Pre-Nups

New Jersey's Senate has approved a bill that would change the standard for judicial review of prenuptial agreements. Currently, courts may invalidate a prenuptial agreement if it is unconscionable as of the date that enforcement is sought. If passed, the bill, S-2115, would change that so that unconscionablity at the time of execution would be key. Supporters of the proposed legislation point out that the value of prenuptial agreements under the current system is highly limited, as they may be invalidated at a later date due to changed circumstances. One of the co-sponsors of the bill, Sen. Gerald Cardinale, R-Bergen, went so far as to say in a hearing on the question that a lawyer who advises a client to sign a prenuptial agreement in New Jersey should be sued, unless the bill passes, because it is a “kind of legal malpractice” to advise a client to enter into an illusory contract.

Is Prenatal Drug Use Per Se Evidence That a Mother Is Unfit?

The State Supreme Court is currently considering whether a mother's use of illicit drugs while pregnant is per se evidence that she is an unfit parent. The case is DYFS v. A.L., A-28-11, where a mother had her newborn child taken from her custody when it tested positive for trace amounts of cocaine soon after birth. The lower court was unconvinced by the mother's explanation: that she had inadvertently inhaled some cocaine after a bag of the substance, belonging to a friend, exploded in the car in which they were riding after she snatched it from its owner. It did not help the mother's case that she had tested positive for marijuana when she sought treatment for an infection when she was five months pregnant. On appeal, the mother's attorney, Glen Rock, NJ, solo Clara Licata, argued that parental unfitness may be found only when a child has been harmed, and no evidence that the child suffered harm due to its exposure to cocaine was shown.

CONNECTICUT

Discussion of Pre-Marriage Relationship Does Not Mean Court Considered It

In Langley v. Langley , 137 Conn.App. 588 (8/21/12), the Appellate Court of Connecticut recently upheld a trial court's calculation of spousal support after finding there was inadequate evidence that the lower court inappropriately based its decision on the duration of the parties' past marriage and period of cohabitation. The case involved parties who met online when the woman was living in Moscow and the man in Connecticut. The woman moved to Connecticut, where the couple cohabited together for part of 2004, before marrying that same year. In October 2006, the husband filed for divorce, then told his wife that she need not do anything in response to the summons and complaint she had received. Believing him, she did nothing, and he obtained a default dissolution of marriage on March 1, 2007. A week later, however, the parties remarried. On Feb. 9, 2009, the husband again filed for divorce, which was granted. He was unhappy this time with the court's financial orders, and appealed, claiming the court erred by considering the periods of the parties' cohabitation and first marriage when calculating his support obligation.

The appeals court noted that trial courts in dissolution matters are not permitted to consider periods of cohabitation or previous marriage when calculating the length of a marriage; however, they may consider events occurring outside of the period of a current marriage if those events bear indirectly on other criteria the court is permitted to consider. In this case, the appeals court found that although the trial court's opinion mentioned the periods in which the couple had cohabited or been previously married, this did not mean that those periods formed part of the basis for the financial determinations. Instead, all indications were that these were discussed merely to explain the factual and procedural background of the case. Because there was no evidence that the trial court abused its discretion in this regard, its decision was upheld.