Christmas Parenting Conflicts

GEO CASUAL

Christmas is supposed to be the happiest time of the year, but we know that for some it is a lonely, regretful time, remembering the sorrows of seasons past.

In homes divided by separation and divorce, the areas of conflict arise from the dynamics of struggling to ensure you see your children, and the difficult discussions between former spouses about sharing their children’s holiday time.

When former spouses remarry and introduce new partners into the family, it is not unusual to hear complaints of resentment and  recrimination focused on the new stepmother or stepfather.

Perhaps one of the most annoying irritants is hearing  8-year-old Johnny call his father’s new partner “Mom”.  An unkinder cut is hard to imagine for newly divorced parents.

One parent was so disturbed she asked a judge to intervene to stop her young son from calling her ex-husband’s fiancee “Mom”.  She was also opposed to her ex’s girlfriend having increased input into her son’s life.

In this case the parents shared legal custody but Johnny lived primarily with his father. New Jersey Judge Lawrence Jones found that both parents and father’s fiancee contributed to Johnny’s well-being, but noted that while the fiancee’s opinions were welcome, it was up to Johnny’s biological parents to make decisions for Johnny.

However,  the Judge declared that it was up to Johnny to decide how he wished to refer to his parents and his father’s fiancee, mainly because the young boy was mature enough to decide for himself. The Court said:

“At this challenging point in his growth and development, he certainly does not need his parents, or a stepparent, or the court, hoisting further unnecessary burdens upon his fragile shoulders by micromanaging his words and thoughts, or commanding him how to address his stepparent in order to please his mother or father.”

I’m sure Johnny’s mother thought the decision was unfair to her, but the reality is that it is not about her feelings, it’s about her son’s self-determination and development.

Lawdiva aka Georgialee Lang

 

 

 

 

 

 

 

Guest Post: Abduction by Adoption

Could your teenage child be secretly adopted without your knowledge? If New Jersey sets the example, then the answer looks like yes.

The New Jersey horror story started out typically enough. Parents of three children got a divorce. To make the transition as easy as possible on their children, these parents agreed to custody arrangements outside of court.

The children would remain in the family home with their father. The mother moved into a home 15 minutes away and the two parents shared parenting duties and privileges as well as parents from two households can. Things went well, and the parents never needed the courts to intervene to enforce any of their arrangements.

It was the good divorce that we want and expect should our marriages fail.

A few years later, when the eldest was a young teenager, the mother remarried. The new couple began holding the children at their house.  It was not a power play as much as a bid for control. The new husband came from a fatherless home. The mother was adopted. Together, they had a view of fathers as replaceable, and it would make their life so much easier to simply cut the ex-husband away.

As they worked to cut the father’s connections with his children, one time even snatching them from the lawn, the father had to resort to the courts to enforce their custody agreements. There were multiple hearings, interviews, and appeals. By 2015 the court had issued various orders upholding the shared custody plan and instructing the stepfather not to interfere with any of the father and child relationships.

Things got so bad that the judge even openly entertained the idea of awarding sole physical custody to the father so he would have more enforcement options. (As many divorced parents know, states have various laws and assumptions about equal legal custody, but in practice custody agreements mean as much as the parent with physical custody wants them to mean.)

The mother and step-father did not like this development. They did not want to abide by the custody agreements or have to appear in court when they ignored the agreements. Therefore, when the eldest daughter turned 18 the step-father used an odd adoption provision in New Jersey law and petitioned for an adult adoption in another court. It was granted.

The Adoption Loophole

The adult adoption provision is typically used for inheritance issues. For instance, prior to the legalization of same sex marriage, one member of a homosexual couple might adopt the other so they would have tax advantaged inheritance rights.  It is a simple process. The adopting parent petitions for the adoption and certifies that there are no obstacles to the adoption.

Adopting a step-child is an entirely different matter and New Jersey law has provisions for step-parent adoptions. As common sense suggests, those adoptions require notice to the biological parent and a waiver of parental rights, as well as background assessments of the adopting party. The law knows — the public knows — that adoptions of children are not to be taken lightly.

In the New Jersey case, the mother and stepfather waited until the eldest girl turned 18 so they could use the adult adoption provision. The step-father did not inform the new court about the many and current restraints set to keep him from interfering with the father and daughter relationship.  He simply verified there were no controversies and adopted the eldest daughter away from her father.

The father was never notified. He even continued paying child support, un-aware that legally, according to the State of New Jersey his daughter was no longer his. The next time he tried to enforce the custody arrangements the adoption rendered them meaningless.

Such is the tale told by the pleadings in the New Jersey Supreme Court where the father has asked the court to vacate the adoption of his daughter.

In addition to this new use of the adult adoption statute, the ultimate interference with the father and child relationship, and the lack of notice to the father and protections to the child, the court must also consider the implications of letting this adoption stand. Custody agreements will mean nothing if one parent can simply find someone, anyone, to adopt a child away from a biological parent. It’s a custody loophole, abduction by adoption.

According to Alice M. Plastoris, attorney on the Board of Directors of the New Jersey Association for Justice and Chair of the Matrimonial Committee, “This is not how the legislature intended for this statute to be used and the courts have cautioned against using the adult adoption provisions without notice.”

In a surprise move, the New Jersey Court denied the petition last month while agreeing to hear a related case. Another New Jersey couple’s divorce decree stated that neither parent could move the children out of state — and then the mother promptly moved the couple’s children to Utah. A parent’s ability to rely upon custody agreements is clearly in question in New Jersey. The father in the adoption case has asked for reconsideration.

If the New Jersey courts allow these events to stand, then what comfort could any divorced parent take in child custody agreements? The agreements can be ignored by legally or physically removing the children from one parent. And thus, New Jersey could set a new standard in child custody: the first parent to capture the kids wins.

AUTHOR: LESLIE LOFTIS,  LAWYER AND WRITER: Her writing typically covers feminism, law, politics, parenthood, and pop culture, particularly where they intersect. A member of LEADING WOMEN FOR SHARED PARENTING.

NOTE: In British Columbia an adult may be adopted based on the criteria in section 44 of the Adoption Act.

44 (1) One adult alone or 2 adults jointly may apply to the court to adopt another adult.

(2) The court may make the adoption order without the consent of anyone, except the person to be adopted, as long as the court

(a) is satisfied that that person, as a child, lived with the applicant as a member of the family and was maintained by the applicant until the person became self supporting or became an adult, and

(b) considers the reason for the adoption to be acceptable.

(3) An adoption order made with respect to an adult has the same effect as an adoption order made with respect to a child.

Lawdiva aka Georgialee Lang

 

 

Mother Jailed 8 Years for Child Abduction Now Released

B9316548187Z-1.1_20150314202542_000_GFTA6A1QO.1-0One of the most litigious child abduction cases may have finally come to a conclusion.

Victoria Innes was five-years-old when her mother, Marie Carrascosa kidnapped her, taking her from the United States to Spain, despite a court order that prohibited each of her battling parents from removing her from the United States without the consent of the other parent.

To buttress this order, and as a precaution, the Court also said that Victoria’s passport must be held by her mother’s lawyer and not released.

A series of unexpected events unfolded when Ms. Carrascosa changed lawyers. Her new lawyer, Madeline Marzano-Lesnevich, was unaware of the court order regarding Victoria’s passport. She released the passport to her client whereupon Ms. Carrascosa fled with Victoria to Spain, where her parents lived and where she was qualified as a lawyer.

Distraught father, Peter Innes, took immediate legal action to have Victoria returned to the State of New Jersey, obtaining an American court order for custody, however, the Spanish courts ignored the order.

Later Ms. Carrascosa returned to New Jersey without Victoria to continue the legal battle, apparently confident that the Spanish courts had jurisdiction and taking comfort in an order of the Spanish court that  barred Victoria from leaving Spain until she was 18-years-old.

But the New Jersey courts didn’t see it that way. Ms. Carrascosa was tried and sentenced in New Jersey to fourteen years in prison for contempt of court and interfering with child custody.

In the meantime, Mr. Innes launched a lawsuit against attorney Madeline Marzano-Lesnevich who was ordered to pay compensation of $950,000 to him for her negligence in releasing the passport to Ms. Carrascosa.

Typically a term of imprisonment tends to  eventually persuade an individual to comply with the law, but not in Ms. Carrascosa’s case. In her zeal to ensure her ex-husband would have no contact with Victoria she remained in prison year after year, depriving her daughter, not only of a father, but a mother as well. Victoria was in the care of her maternal grandmother in Spain.

Ms. Carrascosa’s continued defiance of the court orders and her lengthy incarceration became a legal problem for the State court who expected compliance sooner rather than later. At a hearing in 2007 appellate Judge Donald G. Collester said “She cannot be held forever. At some point in time, she will be out of jail. What are you going to do then?”

In 2014 Ms. Carrascosa received parole for the child abduction conviction but was immediately transferred to local  Bergen County jail for refusing to return Victoria to New Jersey.

It was the entreaties of her daughter to court and correctional authorities and the consent of her former husband, Mr. Innes that resulted in her final release in 2015.

Mr. Innes said:

“I know Victoria wants her mother back, and for that reason only, I support her release. I am confident that once our daughter gets to know her mother, she’ll begin to see the reality of this sad situation. It’s been 10 long years since my daughter was taken, and there’s only one thing I am sure of — no one wins in cases like this.”

No person should suffer the torment of child abduction and Peter Innes’ consent to his ex-wife’s release is proof that he understands that it should be all about what is in his daughter’s best interests, a concept that has eluded the self-centred Ms. Carrascosa.

Mr. Innes maintains a website “victoriainnes.com” and has not given up hope that one day he and his daughter will be reconciled.

Lawdiva aka Georgialee Lang

One in a Billion: Twins are Actually Half-Brothers

GEO#1If you ask most people they will say that twins must have the same father, but that’s not actually true. There have been several recent cases where a woman had sexual intercourse with two men within a few days of the other, and when her twins arrived they were nothing like each other.

Charlotte Hilbrandt of Denmark was divorced from her husband and jumped back into the dating game. She met a man she fancied and they were sexually intimate. Meanwhile her ex-husband never gave up the notion they may reconcile and a few days later, on New Year’s Day, the couple reconnected and ended up in bed together.

Some weeks later Charlotte discovered she was pregnant and would have twins. Deciding honesty was the best policy she told her husband Michael and her new boyfriend Tommy of the situation and admitted she did not know who the father of her twins was. Michael was delighted hoping that the addition of twins to the family would cement a reconciliation and Tommy had longed to be a father and was equally receptive to the prospects of fatherhood.

The healthy twin boys were born 48 minutes apart in 2005 and to her surprise, one strongly resembled Michael and the other her boyfriend Tommy, however, the whirlwind of new twins delayed any DNA testing.

Charlotte, Michael and Tommy were shocked when the DNA results showed each of them was the father of a twin! Charlotte was told that her situation was a one in a billion scenario and that her odds were far better of winning a lottery. She was also told that her twins were only the third known incident of twins being genetic half-brothers.

Fast forward to New Jersey in 2015 where yesterday Judge Sohail Mohammed of Passaic County Superior Court ruled that as a result of DNA testing, Mr. A.S. would pay child support for one of two twins as he was not the biological father of twin #2.

The twins’ mother, T.M. had applied for government benefits for her and the children and as is routine, social workers asked her to identify the father of her children so they could bring a court application to obtain child support from him. T.M.was in a relationship with A.S. and named him as the father. However, later she advised the court that within the same week she had sexual relations with another man.

Expert witness Karl-Hans Wurzinger, the laboratory director of Identity Testing Division at Laboratory Corp. of America, testified at the trial noting that in an article he published in 1997 he estimated that one in every 13,000 reported paternity cases involved twins with separate fathers. He obviously did not agree the odds were one in a billion.

Wurzinger also commented that although there is no central registry of births related to the phenomenon, the incidence of twins with separate fathers is believed to be on the increase, due to assisted reproductive technologies, medical stimulation of ovulation, and promiscuity.

If Mr. Wurzinger’s statistics are accurate, there must be many fathers of twins who are not aware only one of their twins is biologically related to them. Interesting?

Class Action Lawsuit Continues Against Family Court Judges

10950859361151CDPA group of fathers in New Jersey have banded together to bring a class action lawsuit against five family court judges. They allege their constitutional rights were violated by orders made by these judges that deprived them of a relationship with their children. They also claim they were not afforded due process or equal protection under the law.

Their main argument is that by basing custody decisions on the “best interests of the child” their rights are violated. They also allege that lack of appropriate notice before a court order is made regarding their children is a breach of due process.

Due process, also called “natural justice”, is the right to have an unbiased hearing with an opportunity to present your evidence in defence to the claim against you.

Surender Malhan is one of the fathers in the class action. He alleges that the mother of his two children provided him with two hours notice she would be seeking sole custody of the children. He was given no real opportunity to organize rebuttal evidence to the allegations he was an unfit parent.

When he spoke to the media about his situation, family court Judge Nancy Sivilli issued a gag order preventing him from speaking publicly about his case. Mr. Malhan’s lawyer is now suing Judge Sivilli for First Amendment (free speech) violations.

The State of New Jersey is fighting back and brought a court application seeking a summary dismissal of the class action suit, arguing the fathers were using their court action to effectively appeal the orders made against them in the Family Court.

Judge Freda Wolfson presided over the State’s application, and refused to dismiss the fathers’ action, relying on a 2013 appellate decision, B.S. v. Somerset County, where the Third Circuit Court of Appeals refused to dismiss an action brought by a mother in Pennsylvania who alleged she lost custody of her daughter in a hearing that did not afford her due process.

The State also unsuccessfully argued that “sovereign immunity” protected New Jersey from this type of lawsuit. Judge Wolfson ruled the individual judges were the focus of the court action, not the State of New Jersey.

The debate over the usefulness of the “best interests of the child” test for determining custody has been simmering for a decade or more. It is often suggested that proponents of shared parenting want to eliminate the “best interests” test. Perhaps some do, but I believe that Courts simply need to embrace the substantial psychological literature that resoundingly reveals that children need a full relationship with each parent and that is what is in their best interests.

Lawdiva aka Georgialee Lang

A Snake in a Suit

10950859361151CDPNew Jersey lawyer Paul Bergrin spent five years working for the “good guys” as a prosecutor in Newark, New Jersey. That is one of the reasons his slide into the ranks of the worst criminals is so astounding.

Bergrin then took up a career as a criminal defence lawyer and was hailed as an aggressive and brash advocate who acted for gang members and drug dealers. His clients also included Oscar-nominated actress/singer Queen Latifah and rapper L’il Kim.

Bergrin gained a reputation as someone who would do whatever it took to get a client acquitted. His reputation first took a hit when he was arrested for running a brothel called NY Confidential whose owner, his former client Jason Itzler, had been incarcerated for money laundering, among other offences.

This brothel gained notoriety with the revelation that New York attorney-general Eliot Spitzer was a frequent flyer of their $1,000.00 per hour services.

If felony charges had been pursued Mr. Bergrin could have served as many as 25 years in prison, however, the matter was heard as a misdemeanor and he received three years probation and a $50,000.00 fine.

But his troubles were far from over. In 2009 Bergrin was charged with conspiracy to murder, witness intimidation and faced RICO charges for racketeering and belonging to a criminal organization. RICO legislation was originally enacted in the US to cripple the Mafia. The RICO charges were later dismissed by a trial judge, but reinstated once the Court of Appeal had its say.

Bergrin’s alleged defence tactics were far from the norm and included the provision of sexual services, courtesy of his brothel, to influence jail guards, police officers and informants. Even more unusual was the sudden death of persons who were witnesses in cases where he was defending the accused.

It was discovered that in eight Superior Court cases, witnesses were murdered or paid to give false evidence. One case involved the slaying of a FBI informant and in another, Bergrin hired a hit man to take out a witness against his client. With one dead witness, the only other witness recanted and Bergrin’s client walked away from capital murder charges.

When Bergrin attempted to get bail the State played tapes of conversations that Bergrin had with the alleged hit man, an undercover officer. He was denied bail.

Life has changed for Paul Bergrin. He was in solitary confinement for six months and remains in jail awaiting his trial. He no longer wears the stylish suits he was known for and I am sure he misses his beachside home.

Truly, a snake in a suit.

UPDATE:

On March 18, 2013, a jury convicted attorney Bergrin of all 23 counts on which he was tried, including conspiracy to murder a witness and other racketeering, cocaine and prostitution offenses.

The U.S. Attorney for New Jersey, Paul J. Fishman, announced the verdict saying: “Bergrin’s conduct was a stunning violation of his role as an officer of the court and a betrayal of his roots as a member of law enforcement. Today, the jury returned the verdict compelled by the evidence and imposed the justice he deserved. We take no joy from his tragic fall, but I am extremely proud of the work done by those in my office and agents from the FBI, IRS and DEA that led to this just result.”

Bergrin received a life sentence on Sept. 23, 2013.

Lawdiva aka Georgialee Lang

Update on Teen Who Sued Parents For Child Support

GEO#1Thankfully some common sense has been injected into the situation between New Jersey teen, Rachel Canning, and her parents, Sean and Elizabeth Canning. Rachel is the 18 year-old who didn’t like her parents’ house rules, moved in with a girlfriend, and ended up in a courtroom suing her parents, courtesy of her girlfriend’s father, a local Lincoln Park politician and….wait for it…..lawyer!

Rachel obtained a court order on March 5, 2014 that denied her the child support she was seeking, but set up a court process for the matter to proceed to trial with a pretrial hearing on April 22, 2014. It was reported that her benefactor, lawyer John Inglesino, has already spent $13,000 on legal fees on her behalf.

Judge Peter Bogaard’s order also included the suggestions that the parties be encouraged to explore the option of family counselling…no kidding?

Rachel’s lawsuit turned her into an international media pariah, savaged in the court of public opinion, a situation that greatly distressed her parents, who changed counsel after the original hearing.

It cannot be a coincidence that the Canning’s new lawyer, Angelo Sarno, announced yesterday that Rachel had returned home, much to her family’s joy. Mr. Sarno said “(This case) should never have been brought to the court’s attention. It should never have been brought to the public”.

However, after Rachel returned home, her lawyer, Tanya Helfand, ran into court seeking emergency orders to seal the court file and have a guardian appointed for Rachel, telling the court that Rachel was “pressured” to return home by her parents and was waiving her complaint with no promise of financial consideration.

Judge Bogaard denied Ms. Helfand’s application.

So what you have now appears to be a classic legal conundrum. On one side, a lawyer who supports his clients to leave the legal arena before the damage is so devastating there is no possibility of reconciliation between Rachel, her parents and her two younger sisters; matched with a lawyer who apparently wants to continue and even escalate the litigation.

I still don’t understand lawyers who ignore the future ramifications of court actions involving families…one of the reasons why family law matters need to be steered away from court and into mediation or arbitration, if no compromise can be reached.

Not surprisingly, lawyer Inglesino has also been the subject of derision for interfering with Rachel and her parents in a highly personal matter.

It looks like there is only one lawyer in this piece who is wearing a “white hat”…

Lawdiva aka Georgialee Lang