Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

In New Jersey Family Court, Are Children of Married Parents Treated Differently Than Non-Married Parents?

As I wrote in my recent piece, “Are Palimony Claims Still Valid Under New Jersey Law?” over the past 20 years of my practicing as a New Jersey divorce attorney, it is clear that less and less Americans are getting married.  My Google research clearly supports my theory.  To that end, I have further observed and concluded as a New Jersey child custody lawyer that children of marriage are treated much differently than children born of “relationship” in New Jersey family courts.  As I shall discuss below, the children of divorce are treated much better and justly than children of relationship. 

The New Jersey Family Court system is very unique. Not only can families contest custody in a divorce action (which is an “FM” docket number), but they can also contest custody in a non-dissolution action (an “FD” docket number).  Now, before we go into the specific dissimilarities between FM and FD cases, let’s take a look at the legal history of New Jersey child custody laws.

What is the history of children of unmarried parents in New Jersey?

Ever since 1907, New Jersey case law has dictated that a child born in wedlock is assumed to be the lawful child of the husband and wife. However pursuant to English common law, if the couple was not married, the child born was considered an illegitimate child, the son of none—filius nullius. Since the child was not lawfully the child of the unmarried couple, he/ she had no legal rights. The child was not entitled to inherit property or be supported by a father through child support payments.

Ultimately, the child was viewed as a bastard in the eyes of the law. In these cases where illegitimate children were born, the mother almost always retained sole custody of the children. However, New Jersey recognized that this common law doctrine was insensitive, and officially abolished it in 1986 in this case of Matter of Estate of Calloway, 206 N.J. Super. 377 (App. Div. 1986).

In 1983 before the Calloway case was decided, New Jersey began to repeal the common law doctrine. On May 20th, the Parentage Act was enacted. The Act established the principle that all children should be treated the same, regardless of whether they were born to married or unmarried parents. Additionally, under the Act the mother of an illegitimate child could now petition a court for child support from the natural father.               

How are FDs treated differently than FMs?

Although the Parentage Act and Calloway decision were efforts to equalize children of married and unmarried couples, litigation procedures involving the children are still governed by different court dockets as previously mentioned. One distinction between FD and FM cases involves child custody. In FM cases, the married parents are required to attend a Parent Education Seminar. Pursuant to N.J.S.A. 2A: 34-12.3(c), the purpose of the program is to “promote cooperation between the parties and to assist parents in resolving issues which may arise during the divorce or separation process, including, but not limited to the following:” 

1.     Understanding the legal process of a divorce and its associated costs

2.     Understanding monetary support obligations for children

3.     Understanding how to adjust and interact with the children during and after the divorce

4.     Understanding how children may react to the divorce and how to respond

5.     Understanding how to help children cope with the divorce

6.     Understanding how to help children adjust after the divorce

7.     Understanding that cooperation is probably not necessary if the case involves domestic violence

On the contrary, unmarried parents in FD cases are not legally required to attend such a seminar. In FD cases involving custody disputes, the court can require that the parents attend a Parent Education Seminar, but it is not always the outcome. If children of married and unmarried parents are intended to be treated equally, then why is custody over them handled differently depending on their parent’s marital status?

Another way in which FD cases are different than FM cases is when it comes to child support. In FM cases, the parent that is applying for child support must fill out a case information statement. Yet, in FD cases a mere summary of income and assets of the parent is allowed to be presented to the court for evaluation. This is much more informal and less official. While both case types do require the applying parent to disclose some of his or her financial information, FD cases do not require nearly as much to be disclosed as FM cases do. This can be perceived as unfair as well because typically the more financial information disclosed, the more fair and equitable the child support award will be. Just because a couple is not married does not mean that they do not have financial assets and liabilities.

Furthermore, FD and FM cases are procedurally distinct. Pursuant to New Jersey Court Rule 5:4-3(a), in FM cases a party properly served with a complaint has thirty-five days to file an answer or general appearance. Contrarily, in FD cases the Family Division’s Non-Dissolution Operations Manual, 1112 Counterclaim, states that a counterclaim may be filed before a hearing has been held on the original complaint. Additionally pursuant to Rule 5:4-3(b), an answer is not required to be provided. Moreover, if a parent in an FD case wants an opportunity to be heard in court, he or she is not guided by any notice or filing requirements. This increases the risk of being surprised in court because a party is not provided notice of what is about to happen.      

As my office handles both FM and FD New Jersey child custody, child support and related matters, please never hesitate to give us a call if you have any questions or are seeking advise.