Emma v. Evans - Law Offices of Lynda L. Hinkle, LLC

The New Jersey Supreme Court is slated to hear the case of Emma v. Evans 424 N.J.Super.36 (App. Div. 2012).?this term, in which the mother, who is the Parent of Primary Residence (PPR) sought to change the children?s last name from the father?s to a hyphenated version of her birth name and the father?s name. The Superior Court permitted the change, but it was remanded on appeal (meaning they sent it back for the trial court to reconsider the facts and make a new decision with the guidance of their interpretation of the law). The Appellate court?s opinion included, in addition to the remand on fact specific issues, commentary indicating that deciding these cases the way the state had previously done, under a case called Gubernat v Deremer, 140 N.J. 120 (1995) that gives a preference in favor of the wishes of the parent of primary residence in naming issues for young children, would cause a gender bias against men since 82% of primary custodial parents are women.

There is little question among practicing family law attorneys that there can be an anti-father bias in many family law cases. Our culture has presumptions about parenting and what rights, interests and responsibilities fathers ought to be ascribed in raising children. ?In this particular case, an acrimonious divorce has given way to an acrimonious argument over the names of children too young to make the decision for themselves. Even in the event that the Supreme Court agrees that the reasoning of the Appellate Court was specious, the children have now for several years been operating under a different name, and upon remand to the trial level what judge will comfortably agree that it is in the child?s best interests to rename them AGAIN? ?The Appellate Court?s reasoning does not properly consider that the proper standard here IS the best interests of the children, not the best interests of either the father or the mother in this battle. ?The children, who are young, have had no say in this process and the Appellate Court did nothing to advance their interests or concerns in making this decision.

The argument here goes very deep into the heart of some bitter issues in family law. ?It?s really an argument about who has the power over what is in the best interests of children after a divorce. ?New Jersey has made strides in trying to equalize and remove gender considerations from parenting and custody decisions in theory, but in practice what makes family law both great and terrible is that the individual preferences, wisdom and applied common sense of the judge is the final arbiter of many important decisions of what is in the best interests of children?and in a culture full of gender biases that damage both men and women, this can be problematic.

The Parent of Primary Residence does hold more power, even in joint legal custody situations, by New Jersey law. They have the power over every day decisions, and deference is made to their input in the best interest analysis when an issue erupts between the parents over a major decision. This makes some sense, since in many cases the Parent of Primary Residence is so named because they have significantly more time with the children. This is not always true, however. Some parents share significant amounts of the duties, responsibilities and time with the children and yet whoever is so named the Parent of Primary Residence (as the Appellate Court properly pointed out, more often the mother) definitely has an advantage.

In the trenches of family law, I see fathers and mothers every day that are dedicated to their children and who feel they have no voice. I see both mothers and fathers who use the power of their relationship with the children to harm one another, both in and out of court, in wild disregard to what is truly in the best interests of their children. ?The children?s voices are silent, but for the opinion of judges which is sometimes made on the sole basis of the testimony of two arguing parents.

In Emma v. Evans, the New Jersey Supreme Court has an opportunity to carefully review what powers the Parent of Primary Residence ought to have, why and under what circumstances. It is likely they will view the question much more narrowly than that, and from a judicial perspective they are right. ?However, these questions and issues must be grappled with over the next decade as cultural circumstances demand.

Some reforms that would help to mitigate the damage caused by the power struggle of post divorce parenting would be:

Children should have the right to representation by an attorney appointed by the court in matters in which their parents disagree on significant issues that affect the outcome of their lives such as religion, name changing, significant educational and medical decisions, and other such life-changing events in which children have no voice.

Parental alienation laws exist but are rarely enforced. Parents who use their children as pawns, consistently bad mouth their ex in front of children, ?and withhold children ?from the other parent improperly (not for reasons of abuse, neglect, concerns about drug or alcohol dependency, or other such legitimate concerns) because they no longer like that other parent should face consequences and should be required to pay for relational reparation therapy between the other parent and the child.

The courts must find ways to equalize gender inequalities and eliminate presumptions about gender in making decisions about the appropriate placements for children. This includes both presumptions that damage fathers? interests, such as that fathers are non-interested or of secondary importance, and presumptions that damage mothers? interests, such as that mothers ought to bear the majority of child-rearing responsibilities. ?But most importantly, the court must begin to find ways to get more objective, effective and efficient representation of what truly is in the best interests of children when their parents can?t agree.

The New Jersey Supreme Court in Emma v. Evans has a unique opportunity to redirect the state?s thinking on gender inequity and children?s rights in post-divorce parenting power struggles. ?We hope they will lead us to a more equitable state for our children?s sake, at least in dictum if not in their decision.

- by Lynda L. Hinkle, Esq.

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Source: http://lyndahinkle.com/emma-v-evans-the-power-struggle-of-post-divorce-parenting-an-opinion

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