On February 17, 2012 the Appellate Division, in an unreported decision, decided Penza v. Penza.  It Appellate Division reversed the trial court because it had denied the fathers motion to enforce the parenting time schedule, “without prejudice, pending the recommendation of the therapist”.  The father took an appeal and ultimately was successful in having the trial court’s decision reversed.

In its decision, the Appellate Division recognized the challenges that Family Part Judges have in deciding custody disputes.  The court cited the Fehnel v. Fehnel decision in stating,

There are obviously few judicial tasks which involve the application of greater sensitivity, delicacy and discretion than the adjudication of child custody disputes, which result in greater impact on the lives of those affected by the adjudication, and which require a higher degree of attention to the properly considered views of professionals in other disciplines. . . . There have been frequent doubts expressed regarding the viability of the traditional adversarial process as an appropriate dispute resolution technique in child custody cases. But as long as we continue to resort to that process, it must be permitted to function consistently with its highest potentials.

The appellate court recognized the use of a psychologist and other mental health professionals is not only commonplace but necessary in determining the best interest of the child or children. However, the court cannot simply defer to the mental health professional. The Court stated,

“… the weighty responsibility of deciding on a parenting arrangement that is in the child’s best interests is still assigned to the judge.”

This decision is not only a reminder to the Family Part Trial Judges but also to family law lawyers.  It is not a good idea to assign or defer ultimate decision making ability to a mental health professional. Rather the better course, and what is supported by the law, is to have input and recommendations from the mental health professionals but ultimately leave the decision making process to the judge. If you or a loved one has questions regarding child custody or parenting time contact the family law lawyers at DeMichele & DeMichele. A confidential consultation is only a phone call away (856) 546-1350.

Even though historians generally believe George Washington’s birthday is February 22, 1732 we officially celebrate it on the third Monday of February.

Why did it happen? A wide variety of issues could lead to license suspension in New Jersey, including:

• Receiving twelve (12) or more points on your driving record
• Being unable to provide proof of valid driver’s insurance during a traffic stop
• Failing to appear in court
• Failing to pay fines or surcharges
• Driving with a license that was already under suspension at the time
• Having certain physical or mental health disqualifications
• Unpaid Child Support or Alimony
• Abandoning your motor vehicle on a public highway
• Being assigned fault for a fatal traffic accident

Your head is swimming with questions when the New Jersey Motor Vehicle Commission revokes your license by simply sending you a letter in the mail. How will you get to work? Attend classes? Pick up your kids from school? Purchase groceries? Visit friends or loved ones?

As bad you may feel when it happens, having your driving suspension ultimately lifted will be an extremely happy occasion for you and everyone in your life that depends on you.

But not so fast! Just because your suspension is technically over does NOT mean that your driver’s license has been automatically restored…

Before getting behind the wheel, you will need to visit your local Motor Vehicle Commission headquarters or service center and pay a “restoration fee” of $100.  Do not attempt to drive until you (1) restore your license and (2) receive a written notice of restoration via the regular mail or you obtain an restoration receipt in person.

Driving with an unrestored driver’s license in New Jersey, even after your suspension period is already over, could result in additional fines and even jail.

The stakes are clearly high if you are in danger of losing your driver’s license or it has already been suspended for one or more of the aforementioned reasons. You need experienced counsel to explain the process, and help you restore your driving privilege and protect your legal rights.

If you or someone you know is facing the suspension of their driving privileges in New Jersey, contact the municipal court defense lawyers at DeMichele & DeMichele today. You can also reach us by telephone (856) 546-1350.

In the recent case of New Jersey Motor Vehicle Commission v. Larissa A. Gethard, the Appellate Division affirmed the New Jersey Motor Vehicle Commission’s (“MVC”) suspension of Defendant’s New Jersey driver’s license for ninety days because she was convicted of driving while her ability was impaired “DWAI” in the State of New York.

The Defendant  was charged in New York State with driving while intoxicated, and she was convicted of the lesser-included offense of driving while impaired.  The New York authorities notified the MVC of the conviction, as required by the interstate compact, the MVC notified the Defendant, that her New Jersey driver’s license would be suspended for ninety days because of her New York conviction.

The Defendant challenged the suspension of her driving privilege in New Jersey. The court held that pursuant to the interstate compact, a state is required, where a non-resident commits a motor vehicle offense, to report that offense to the driver’s home state.   The Appellate Division went on to say that the licensing authority in the home State (New Jersey), shall give the same effect to the conduct reported, as it would if such conduct had occurred in the home state (New Jersey).  In analyzing the offense, if the law of another state does not describe an offense in precisely the same words the law shall be construed to apply to “violations of a substantially similar nature.”

In this case the Court found that a conviction in New York for driving-while-ability-impaired (“DWAI”) was substantially similar to New Jersey’s law prohibiting “driving a motor vehicle while under the influence of intoxicating liquor (“DWI”).”

The Court decided that even though New York law provides that evidence of a blood-alcohol content of more than .05 but less than .07 is relevant evidence, it is not dispositive of whether a driver’s ability to operate a vehicle was impaired.  Thus, a DWAI conviction in New York may not necessarily be solely based upon blood-alcohol content.

However, the Court found that The Defendant was not able present “clear and convincing proof” that the New York’s “DWAI” offense was based “exclusively” on a blood alcohol content (“BAC”) of less than 0.08%  and not based upon observations or other proof of impairment. Thus, the MVC suspension was upheld.

Before you plead guilty to a DWI in New Jersey or an alcohol related driving offense in another state contact the DWI defense lawyers at DeMichele & DeMichele.  Our lawyers have worked as municipal court prosecutors and public defenders in several South Jersey towns.  A confidential free consultation with an experienced DWI attorney is just a call away (856) 546-1350.

Enjoy the Day!  We will be back tomorrow with more law related information.

Many people believe expungements in New Jersey only apply to criminal convictions and arrests. However, medical records can be expunged too.  When considering an expungement petition the court must follow the standard set forth in the statute.  The New Jersey Medical record expungement  statute states:

“Any person who has been, or shall be, committed to any institution or facility providing mental health services, or has been determined to be a danger to himself, others, or property, or determined to be an incapacitated individual as defined in N.J.S.A. 3B:1-2, by order of any court or by voluntary commitment and who was, or shall be, discharged from such institution or facility as recovered, or whose illness upon discharge, or subsequent to discharge or determination, is substantially improved or in substantial remission, may apply to the court by which such commitment was made, or to the Superior Court by verified petition setting forth the facts and praying for the relief provided for in this act.”

The Appellate Division recently reversed and remanded a denial of a medical record expungement.  In the case In Re M.L., Petitioner for Expungement the trail court denied a former police officers petition for expungement.  The officer voluntarily admitted himself for psychiatric treatment after an incident involving an unloaded gun and his estranged wife.  After being discharged from the institution the former police officer, in an attempt to get a fireams card, sought an expungement of his medical records.

The trial court denied the expungement because it found expungements were appropriate only when the medical records would be a source of “embarrassment,” and their content “would not impact” the decision to be made by a court or agency.  However, in making this finding the trial court disregarded the medical expungement standard which states,

“If the court finds that the petitioner will not likely act in a manner dangerous to the public safety and finds that the grant of relief is not contrary to the public interest, the court shall grant such relief for which the petitioner has applied and, an order directing the clerk of the court to expunge such commitment from the records of the court.”

Ultimately, the appellate court determined the trial court’s review was deficient as it failed to comply with the requisites of the statute. The trail court’s order was reversed and remanded for consideration by a different Law Division judge.

If you or a loved one needs a medical record or criminal record expungement we may be able to help. Contact the New Jersey Expungement Lawyers at DeMichele and DeMichele at 856-546-1350 for a free and confidential consultation. We offer fixed and flat fees for our services. We except Visa and MasterCard and payment plans are available.

In representing clients in family law cases we are often asked, “Do we have to follow the New Jersey child support guidelines?”  The short answer is yes, but there are exceptions.  One such exception is if the child is over 18 years old and attending college or other post-secondary education.

Since the New Jersey child support guidelines apply to the vast majority of child support applications is routine in common for the courts to calculate child support using the guidelines for all child support cases.  In the unreported decision Clement vs Clement, the Appellate Division set aside the trial court’s child support award because it was improperly based upon New Jersey Child Support Guidelines.  The court held,

We agree further that the trial court erred in applying the Child Support Guidelines to determine a new support obligation for plaintiff. Paragraph 18 of Considerations in the Use of Child Support Guidelines, states, in pertinent part:

These child support guidelines are intended to apply to children who are less than 18 years of age or more than 18 years of age but still attending high school or a similar secondary educational institution. For the reasons set forth below, the Appendix IX-F support schedules shall not be used to determine . . . the amount of support for a child attending college. The child support guidelines may be applied in the court’s discretion to support for students over 18 years of age who commute to college.

Pursuant to the New Jersey’s Child Support Statute N.J.S.A. 2A:34-23(a) the trial court should have based it’s award of child support on the following factors:

(2) Standard of living and economic circumstances of each parent;

(3) All sources of income and assets of each parent;

(4) Earning ability of each parent . . .;

. . . .

(8) Responsibility of the parents for the court-ordered support of others;

(9) Reasonable debts and liabilities of each child and parent; and

(10) Any other factors the court may deem relevant.

This case was ultimately sent back to the trial court for further proceedings consistent with the decision of the Appellate Court.  While in cases the use the New Jersey child support guidelines the amount of the child support obligation is usually very predictable in this case the amount of the child support obligation is less than clear. The Clement case is an example of a situation where the child support guidelines do not apply. If you have questions involving the calculation of a child support obligation contact the South Jersey child support attorneys at DeMichele and DeMichele. Please call 856-546-1350 to schedule your confidential consultation with an experienced child support and family law attorney.

DeMichele & DeMichele is pleased to announce that Richard A. DeMichele, Jr. was reappointed as municipal prosecutor for the Borough of Lawnside.  His term extends through December 31, 2012. You can read Resolution No.-FY2012 by clicking here: Lawnside Reappointment Resolution 2012[pdf].

Mr. DeMichele has served as Lawnside’s Municipal Prosecutor 2009.  Prior to that he served as the municipal prosecutor in Hammonton, NJ.  ”I am honored to have the opportunity to serve the people of Lawnside as their municipal prosecutor”, said DeMichele.  In this role Mr. DeMichele will, not only continue to  interact with the Lawnside Police Department, but also with the New Jersey State Police.

Due to the In re Clark decision, Mr. DeMichele does not represent any criminal defendants in Camden County. His criminal practice is limited to defending clients accused of crimes and traffic offenses outside of Camden County.  The firm’s other attorneys (Greg DeMichele and Matt Rooney) continue to represent those charged with crimes and traffic offenses throughout New Jersey including Camden County.

Unfortunately, some New Jersey residents celebrated a bit too much and got behind the wheel. According to the New Jersey State Police’s Twitter feed, DWI arrests and fatalities on state police-patrolled roads were significantly up over this weekend in 2008 (the last time the Giants won the Super Bowl):

The penalties for a DWI Conviction in New Jersey are severe, so you should never just plead guilty.

But don’t despair: just because you were charged with a DWI does not mean you will automatically be convicted…

The attorneys at DeMichele & DeMichele have helped numerous clients with beating or minimizing the penalties associated with a New Jersey DWI.  Our lawyers regularly represent individuals who been arrested for Driving While Intoxicated throughout South Jersey in towns including: Pennsauken, Haddonfield, Cherry Hill, Washington Township, Vineland, Mt. Laurel, Marlton, Waterford, Evesham, Gloucester Township, Collingswood, Waterford, Voorhees, Winslow Township.

You need a skilled attorney to challenge the state’s evidence, and the available defenses to the state’s evidence vary and can be quite complex.

For example, just because the breath test machine gave a reading above the legal limit does not mean you are guilty.  The lawyers at DeMichele & DeMichele know the issues and problems associated with the Alcotest breath test machine.

So before you plead guilty to a DWI in New Jersey and lose your driving privilege, pay a substantial fine, pay surcharges, pay increased automobile insurance premiums and possibly go to jail, contact the DWI defense lawyers at DeMichele & DeMichele.

Our lawyers have worked as municipal court prosecutors and public defenders in several South Jersey towns.  A confidential free consultation with an experienced DWI attorney is just a call away (856) 546-1350.

Today we will be posting from the ABA Midyear in New Orleans.  We hope to provide live real time coverage for most of the meeting.  Technology willing we will provide continual live updates on the actions of the HOD. (All time stamps are local time and approximate).  You can follow us on Twitter @jerseylegal we will be using the “hash tag” #abamidyear.

Linda Klein, Chair of House of Delegates opened the proceedings promptly at 9:00 am.

9:06        The presentation of the colors by the New Orleans Fire Department.

9:09        Louisiana Associate Supreme court Justice gives the invocation.

9:12        Welcome remarks by the Mayor of New Orleans, Mitchell Landrieu.

The city is grateful that the ABA has returned to New Orleans.  “New Orleans is a great success story”.   The mayor gave a serious speech and was funny and entertaining.

Mayor Landrieu predicts the Saints will be in the Super Bowl in New Orleans next year.

New Orleans ’ gift back to the country will be the city’s progress going forward.

09:28     Laura Farber welcomes new Delegates to the House of Delegates and moves the Roster be the permanent roster of the House.

09:36     Gene Vance, Chair of the Rules and Calendar gave the report of the committee.  There are three state and local bar late resolutions that will be considered at today’s meeting.   There are three late resolutions which have been approved for debate and consideration today.  The rules of limited debate will apply to resolutions without opposition.

09:42     Hon. Cara Lee Neville, ABA Secretary, moved the Summary of Action which was adopted.

As part of the preliminary matter the House recognized deceases members.

09:55     ABA President Bill Robinson gives his remarks.

Lack of funding for state courts is a real problem that denies justice.

Most state judiciaries receive less than 3% of their states budget in funding.

This crisis has a direct effect on the public.  “We are on a disastrous path”

The ABA is committed for the “long haul” to address the lack of state court funding and its impact on justice and our democracy.

10:12     Linda Klein, Chair of House of Delegates gives her report.   She recognizes the committees of the House and reviews House procedure.

10:17     Consideration of Resolutions – Summaries of the resolutions can be found here.

Resolution 10A            Adopted Unanimously

 Resolution 101A          Adopted

Resolution 101B          Adopted

Resolution 101C          Adopted as Amended

Resolution 101D          Adopted

Resolution 101E          Adopted

Resolution 101F          Adopted

Resolution 101G          Adopted as Amended

10:58     Hon. Eric Washington, President of the Conference of Chief Justices, gives remarks.

Language Access to courts is an important issue to judicial administration and judicial independence.

Chronic underfunding of state courts threatens the Rule of Law.

Lack of civics education threatens the judiciary and its role in a democracy.

11:14     Resumption of Consideration of Resolutions

Resolution 113          Adopted.

Resolution 102B        Adopted after opposition and full debate.

11:48     Ethics 2012 Presentation by Carolyn Lamm, Past ABA President

The consideration of Ethics 2012 will be bifurcated over two meetings August 2012 and February 2013.

11:58     Presentation of Lucian T Pera, ABA Treasurer.

The Associations finances are sound despite future economic challenges.

12:12       Lunch

1:30        Meeting resumes

1:32        Report of the Nominating Committee

1:45        Remarks of James Silkenat, President Elect of the ABA

1:58        Report of Archiving ABA Policy

2:02        Resumption of Consideration of Resolutions

Resolution 103        Adopted as amended after opposition and full debate.

Resolution 104        Withdrawn

2:37         ABA Section of Legal Education & Admission - Special Report: Legal Education and Accreditation

2:43         Report of ABA Executive Director Jack Rives

ABA must show the value of membership

3:12        Resumption of Consideration of Resolutions

Resolution 105  Adopted

Resolution 108  Adopted

Resolution 109  Adopted

Resolution 110  Adopted

Resolution 111  Adopted

Resolution 112  Adopted

Resolution 114  Adopted as amended

Resolution 115  Adopted

Resolution 10B  Adopted

Resolution 302  Adopted as amended

Resolution 303  Adopted

Resolution 304  Adopted

4:10      The House of Delegates meeting is Adjourned