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FD jurisdiction case

  • 1.  FD jurisdiction case

    Posted 05-08-2017 12:50 PM
    There is a seminal case on when the Family Part has jurisdiction. I think it was trial level, Judge Locascio, but I'm not sure. It held, in essence, that for the Family Part to have jurisdiction in an FD member, there must be a child in common, or jointly owned property, or (other?). I need it as a trial judge preliminarily said that it doesn't think it has jurisdiction when unmarried parents still live together. I'm trying to address it -- one of those "Walking mud" moments when a quick point needs to be made and I can't find the authority I know is out there. I think it's also in the terms of the Parentage Act and the court rules, but I was looking to cite the case that reviews it.

    Anyone know the case off the top of their head?

    Thanks


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  • 2.  RE: FD jurisdiction case

    Posted 05-08-2017 12:58 PM

    Major v. McGuire - NJ 2016 - FD case (grandparents case) - jurisdiction and procedure in FD Case.

     

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  • 3.  RE: FD jurisdiction case

    Posted 05-08-2017 01:05 PM
    Dave-  See R. 5:1-2(a), In re Estate of Roccamonte, 174 N.J. 381, 398-99 (2002); and Dey v. Varone, 333 N.J. Super. 616 (Ch. Div. 2000) all noting that actions arising out of a family-type relationship should be filed in Chancery Division- Family Part.

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  • 4.  RE: FD jurisdiction case

    Posted 05-08-2017 01:13 PM

    David

    This may help

     

    "Although distribution of individually owned assets is improper under the rubric of "equitable distribution" where unmarried cohabitating parties are involved, such persons who have engaged in a joint venture to purchase property in which they reside, are entitled to seek a partition, see Olson v. Stevens, 322 N.J.Super. 119, 730 A.2d 432 (App.Div. 1999), and the Family Part is the appropriate forum for the resolution of such issues. See In re Estate of Roccamonte, 174 N.J. 381 , 398-99, 808 A.2d 838 (2002); Olson, supra, 322 N.J.Super. at 123, 730 A.2d 432 ; Dey v. Varone, 333 N.J.Super. 616 , 756 A.2d 652 (Ch.Div. 2000). Mitchell v. Oksienik, 380 N.J. Super. 119, 127 (N.J. Super. App. Div. 2005)

     

     

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  • 5.  RE: FD jurisdiction case

    Posted 05-08-2017 01:16 PM

    I had a similar case. Same sex couple, no children. Needed to allocate house sale proceeds. Filed it as an FD. The court referenced an AOC directive that removes such a case from the family part if no children, no "support" issues, etc.

     

    Sandy

     

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  • 6.  RE: FD jurisdiction case

    Posted 05-08-2017 06:01 PM
    Thanks for all the responses, on-list and off.

    There's nothing I'm seeing (nor have I ever heard of) a requirement that unmarried parents not be living together before there's jurisdiction. Neither wants to move out and establish a status quo as to custody - they're willing to attend mediation (or evaluations, etc). If either tried to leave with the children, it'd cause fireworks (not to mention trauma to the kids). I can't believe a court would require something like this before it'd hear custody and parenting time? I was hoping a case addressed it, but -- no go. Anyone ever heard of this? I think just citing the rule, the parentage act, and the cases should do it?



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    David Perry Davis, Esq.
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  • 7.  RE: FD jurisdiction case

    Posted 05-09-2017 07:26 AM
    If you have a same-sex couple and there are no children and no support issues (or palimony claim) and the parties were not married, in a Civil Union, or Domestic Partnership, but have jointly titled property, it would generally be a partition action in chancery.   If someone then cross-filed for some other support/family type issue, the court could (and I've had them do it) move it to FM.

    As to unmarried parents, that would be in FD (sort of precisely what FD was built for, no?)

    Jo

    Jodi A. Argentino, Esq.
    Managing Partner - Custody & Dissolution Team
    Guston & Guston, LLP
    (201) 447-6660




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  • 8.  RE: FD jurisdiction case

    Posted 05-09-2017 08:14 AM
    Jodi is right 




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  • 9.  RE: FD jurisdiction case

    Posted 05-09-2017 05:39 PM
    They're the biological parents of the child at issue. The judge found there's no jurisdiction because they still live together - that's the issue. I've never heard that there's no FD jurisdiction because parties still live together, and can't find anything in the statute(s), rule, or case law that holds this. Without using names, it's a much, much older judge on recall. I think said judge is thinking of back before no-fault divorce and it's inapplicable.

    Anyone disagree? Anyone think there's no FD jurisdiction because the unmarried parents still live together?

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    David Perry Davis, Esq.
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       www.FamilyLawNJ.pro
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    112 West Franklin Avenue
    Pennington, NJ 08534
    Voice: 609-737-2222
    Fax:    609-737-3222

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  • 10.  RE: FD jurisdiction case

    Posted 05-11-2017 04:24 PM
    <<The judge found there's no jurisdiction because they still live together and dismissed the FD complaint -- that's the issue.>>

    For anyone else following this... I got it - the exact language.  Yes, the court has jurisdiction to address custody / parenting time / support "when the parents of a minor child live separately, or are about to do so,
    ..." NJ Rev Stat § 9:2-3 (2013). But, but - this would mean the judge was wrong. How could that be? :-)


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  • 11.  RE: FD jurisdiction case

    Posted 05-11-2017 05:15 PM

    Thanks Dave – very helpful.

     

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