New Jersey Transgender Name Change Case

Posted on July 13, 2017 by admin

Should a transgender minor be allowed to change his or her name without the consent of one of his or her parents? New Jersey broke new legal ground in a custody case that asked just this question. A child named Veronica wanted to be known as Trevor. The mother supported the decision and the father did not. New Jersey decided the issue by examining all of the available social science data, ultimately allowing the name change.

Changing the name of a child falls under custody law. Unless emancipated, a child’s parents are required to consent to changes to a child’s school, medical care, and name. If the parent’s do not agree, they have to go to court to obtain an order allowing a change. When that happens, the court will apply the “best interests of the child” analysis.

An analysis of the best interests of a child can take into account many different factors. In a case such as this, where the child desires to have a name that matches the gender that they identify with, the court has little to go on. The standard analysis does not touch on issues such as identity, at least not at the deep level that is involved in transgender issues. The New Jersey Superior Court listed these elements as part of its analysis:

(1) The age of the child;
(2) The length of time the child has used the preferred name;
(3) Any potential anxiety, embarrassment or discomfort that may result from the child having a name he or she believes does not match his or her outward appearance and gender identity;
(4) The history of any medical or mental health counseling the child has received;
(5) The name the child is known by in his or her family, school and community;
(6) The child’s preference and motivations for seeking the name change;
(7) Whether both parents consent to the name change, and if consent is not given, the reason for withholding consent.

These were compared to the best interest analysis of names changes that already existed in the case law of New Jersey. These included the following: How long the child has had the name, identification with a family, potential anxiety or embarrassment caused by having a different surname from the custodial parent, child’s preference, parental misconduct, community respect or disrespect attached to a name, motivations for the change, sibling relationships, whether mother intends to change her name upon marriage, and effect on the relationship between parent and child. (Gubernat v. Deremer, 140 N.J. 120 (1995)).

The difference between the regular analysis and the analysis in the case of a transgendered individual is very similar. The main difference is the addition of the effect of having a name that does not match the gender with which the individual identifies. For example, numbers three and four both show respect for the new understanding that the field of mental health has given our society. There is also a shift towards having the court make a legal reality what the individual, family and friends actually practice every day. If the individual is known with a name that belongs to the opposite gender in our society, then the court seems to be suggesting that it will make it official.

The court stated that the most compelling reason for granting the name change was the effect of having a name at odds with the individual’s identity. The court cited several studies of bullying and of the effect of validating the gender identity of a transgender individual as grounds for its decision.

Other differences have been simplified in this case. Gubernat looked at the motivations of the parents, misconduct and the view of the community towards the name. All of these elements in the Gubernat analysis come in under different elements in this case. Misconduct and motivations would fall under the final element, which says, “…if consent is not given, the reason for withholding consent.” In other words, if you have a good reason to object to the name change, you may present it to the court. If there was misconduct by the party objecting, then that misconduct would weigh against the court accepting the party’s argument.

Clearly the emphasis is on the effect of the name change on the minor who is requesting it, and if the mental health records and need for a new identity are in the best interests of the minor, the parent’s motivations and misconduct are of secondary importance. Since the analysis is the best interests of the child, it is hard to argue with the court’s decision.

Read more here: http://www.judiciary.state.nj.us/attorneys/assets/opinions/trial/Sacklow-v-Betts.pdf

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Custody Battles with a Horrible Added Twist…

Posted on April 27, 2014 by admin

If custody battles can get ugly, custody battles where one parent with ties to another country and runs away with the children can be even worse. It isn’t just in America. Here is an article that appeared last month in the Ottawa Citizen.

Countries that signed onto the Hague Convention on International Child Abduction supposedly will return children who have been unlawfully removed to within their borders, but it is a complicated process.

If the country has not signed on, no set process exists and so it can be even more difficult. Read the article here.

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Supreme Court defines domestic violence broadly, upholds denial of guns

Posted on March 28, 2014 by admin

The U.S. Supreme Court has recently handed down a decision that strengthens the laws against domestic violence by giving a broad definition to the word “violence.” A Tennessee resident named Castleman pleaded guilty to a misdemeanor domestic violence offense. The charge did not require any kind of physical force.

The federal authorities sought to deny Castleman the right to bear arms under the federal state found at 18 U.S.C. section 922(g)(9), which denies such right to anyone convicted of “misdemeanor crime of domestic violence.” As every lawyer knows, justice requires that the definitions of one statutory scheme must be compared to, or synchronized with, the definitions of any related statutory scheme.

In this case, Castleman raised an issue with the definitions of violence found in the statute to which he pleaded guilty and the federal statute which was used to deny his gun rights. His argument was that the Tennessee statute includes all sorts of behaviors within its definition that are not physically violent. Therefore, one might conclude that the state definition is too broad to be used fairly under the federal statute. Or to put it another way, the federal definition of domestic violence should require some element of physical violence before denying anyone the right to bear arms.

The judges who heard this case were truly divided on the proper standard to use. The District Court trial judge held that “violent contact with the victim” was required. The majority of appeals judges for the Sixth Circuit held that the standard for physical force should be the same as for violent felonies under federal law. One dissenting justice argued for the broader definition found in the Tennessee statute.

Justice Sotomayor wrote for the majority. She interprets Congress’ intent based upon the common law definitions, and therefore decided that “force” in this case should be interpreted as “offensive touching.”

This is a much broader definition and covers many more behaviors, which Sotomayor suggested would not be considered violence in a non-domestic setting. She defined the term violence as “a substantial degree of force,”  and domestic violence as “a term of art encompassing acts that one might not characterize as ‘violent’ in the nondomestic context.”

She goes on to include in the definition hitting, slapping, shoving, grabbing an arm so hard as to cause a bruise, and other physical acts, non of which alone would be given a second thought but that, over time, add up to domestic violence. This definition is an attempt to define domestic violence according to findings of the social sciences on this topic.

Justice Scalia concurred, meaning he agreed with the decision of the majority but for his own reasons. He argued that federal cases had rejected the common law definition of battery but that Tennessee’s definition of misdemeanor domestic violence still fit the federal definition. Pointing to the definition of physical force that Sotomayor rejected, Scalia pointed out that under federal law, the physical force definition was a felony and that the federal government specified misdemeanor domestic violence. Under Johnson, misdemeanor violence would be “force capable of causing physical pain or injury, serious or otherwise.” So by Scalia’s standard, Castleman was still guilty. But Scalia’s standard was narrower than the majority’s definition, which used the phrase, “term of art” to define domestic violence.

The majority’s definition can include any behaviors that would not be violence except in the domestic setting. It seems to be discretionary under this definition as to what adds up to domestic violence. Scalia’s definition sets out a clearer rule of law. However, either way, this decision clearly moves the country towards better protections for the victims of domestic violence.

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Tough decision in Rutherford child custody case

Posted on March 23, 2014 by admin

A judge’s ruling sends two American children to France to live with their father in the Rutherford child custrody case. This case shows how difficult it is to make a decision as to the best interests of the children in a child custody case. Although this article is highly critical of the judge’s decision, the judge’s reasoning is typical of child custody cases where the custodial parent and noncustodial parent live far apart. The judge here ruled as she did based upon several key factors. First, she seemed to feel that the mother and father had been raising the children in both the American and European cultures, so the children would fit in in either country. Second, the mother tipped off the feds about the father’s shady business dealings to get him deported, thus showing a hostile attitude towards the father’s parental rights. Finally, mother commutes between NYC and LA, so the children were not being pulled out of a stable social situation and would not miss friends and teachers. She decided to send the children to France where they would go to school and mother could visit. This would give the parents as close to 50-50 time as possible.

The judge clearly focused on the facts that she found most compelling, such as the fact that father could not visit his children in America, but mother could visit them in France. This is important because both parents are important to a child. Fathers play just as important a role in a child’s life as mothers.

But as the article points out, this father has questionable business dealings. No one knows exactly what they are except him, but they got him deported. Is this the kind of father who will play an important role in his children’s lives? He would not even testify as to what his business dealings are. This is the one of the most important facts that has everyone questioning the judge.

Another important question is whether pulling children out of their native culture and language is really in their best interests. Why not send them to father over the summer vacation and several holidays such as Christmans-New Year’s every year? Wouldn’t that equalize parenting time? I myself find it hard to believe that such a radical change in life style would be in the children’s best interersts, even if they were introduced to the culture by the parents in the past.

This case is a perfect one for discussion of child custody issues. It has all of the big questions.

http://abcnews.go.com/blogs/entertainment/2012/09/two-american-kids-shipped-to-france-in-one-of-the-worst-custody-decisions-ever/

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Warning About Debt-Buying Companies: You may not have to pay them a cent!

Posted on March 13, 2014 by admin

A lot of companies now sell debts that they cannot or do not want to collect. Usually the sale is for pennies on the dollar. But the way that they operate is the amazing thing here.

I switched from T-Mobile years ago. Apparently there was a $30 charge left on the account that neither my wife nor I remember being billed for after the switch.

A company called me and tried to pass themselves off as T-Mobile. I can smell a bogus collection attempt, however. When I asked for more information about who the caller was and who he represented, he admitted he worked for a debt buying company.

Naturally I asked for confirmation of the debt – after all, how do I know whether they had purchased the debt or not? Someone calls you up out of the blue on a debt from three years ago, will you really just send money to the person without any kind of confirmation?

So the debt collector asked me how he could have known about the debt if they hadn’t bought it. Wow! Great legal argument!

When I asked what would stop T-Mobile from trying to collect the debt after I paid him, he said that they wouldn’t do something like that. Really?

I said that I wanted proof of the purchase of the debt, same thing that he would have to prove in court if he sued on the debt, as well as proof that I really owed the $30, which I may have, and he shouted, “Oh, come on!”

They called me about ten more times, with me asking the same question. I haven’t heard from them now in years.

Know your rights and what any company would have to show in court to prove a debt, and demand information accordingly.

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Custody and Pornography

Posted on March 8, 2014 by admin

The Salt Lake Tribune reports on a bill currently before Utah’s senate that would allow judges to consider exposure of children to pornography in child custody disputes. Apparently some cases have been heard before judges where a father told a son to watch pornography and “be a man.” Click here to read article. Utah judges are currently not allowed to consider such evidence in determining child custody.

Pennsylvania judges may consider anything that effects a child’s well-being. Something like this would be discretionary. If evidence was offered that showed the ill effects of a parent forcing a child to watch pornography, which to me seems obvious, the judge could go so far as to order only supervised visitation. Depending upon the facts of the case, such behaviors by a parent could be abuse or simply be a consideration of the well-being of the child. These can be found at 23 Pa.C.S. 5328(a)(2) or 5328(a)(9).

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Important Decision For Fathers

Posted on March 7, 2014 by admin

What happens if mom suddenly decides to give her child to a family member to adopt? When the mother did just that, a CO father had to endure a six year legal struggle to get the partial custody that he should have had all along. Read by clicking here. This is an important victory for father’s rights. The court could have decided that the child had been with the adoptive parents so long that she should simply stay with them, but instead, the father won his parental rights. The could did award partial custody to the adoptive parents.

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Having trouble with your custody time/ You should have studied physics!

Posted on March 7, 2014 by admin

Physicists like to use math to solve problems, but they usually leave it at the office. Not this physicist. According to this Scientific American article, when he had trouble working out a parenting plan, he turned to what he knows best. Read here.

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Jewish Extortion Ring: For When Your Husband Refuses a Get

Posted on March 7, 2014 by admin

Here is an interesting news article. A ring of extortionists faces federal charges for extorting divorces from Jewish men. Apparently they could be hired by Jewish wives, for a price.
Read article one here and article two here.

An Orthodox Jewish divorce is known as a “get” and has to be initiated by the husband. NJ law allows a Jewish wife to file for divorce and then motion the court to force the husband to grant a get. Apparently NJ has not been successful in doing so, and the extortion ring was called in. Is this acceptable under Jewish law? Apparently so. In First Things, Mark Movsessian looked into the issue and found that precedent exists under Jewish law for taking drastic steps to force a man to grant a get. Read here.

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NJ’s Interesting Take on Supporting Children

Posted on March 7, 2014 by admin

The news agencies have been publishing stories about the NJ teen who is suing her parents for support. She doesn’t like their house rules so she has moved out but still wants to go to college on their dime. Click here. The interesting thing about this case is not the idea of suing your parents, it is the fact that she could win this suit if her parents were divorced. Several NJ family law attorneys have suggested that divorced parents are regularly required to pay college costs while parents who are not divorced are not. The idea is that parents who are not divorced would support their children and it is unfair to children of divorce to let their divorced parents off the hook. The children didn’t do anything, after all. Click here. Bari Weinberger, a prominent NJ divorce attorney, says that there is very little precedent supporting what the daughter of these non-divorced parents wants.

Compare this with a recent case in which a father who agreed in the property agreement to support his estranged daughter through law school, apparently thinking that she would go to a less expensive school like Rutgers law. He now has to come up with $112,000 so she can go to pricey Cornell. Tagged , , | Comments Off on NJ’s Interesting Take on Supporting Children