United States: Appellate Division Seeks To Protect The Parental Bond

Last Updated: December 31 2013
Article by Robert A. Epstein

Highly acrimonious custody disputes abound for countless reasons, many of which are tied to the specific facts and circumstances of a given case.  A determination of the most appropriate custody arrangement (joint or shared legal and residential custody) and parenting time schedule can be a difficult process, especially when multiple custody evaluators are retained to render his or her own recommendations as to what is in the best interests of the child – the governing standard relied on by family judges.  Ultimately, the goal espoused by the New Jersey legislature through its governing laws is to ensure that each parent enjoys a relationship with the child that is in that child's best interests.

Following that line of reasoning, the Appellate Division in S.M. v. K.M. a recently published (precedential) decision, reversed a trial court decision denying a father any contact with his two children until criminal charges against him were resolved.  The Appellate Division also remanded to the trial court for a hearing involving the prosecutor, criminal defense attorney, and family lawyers, to address the issue of parenting time while criminal charges are pending.  While the specific facts of the case are interesting, it is the Court's broader statements that merit greater attention in their application to many of the custody disputes that we encounter – especially when allegations of alienation or, more simply, a lack of enforcement to address parenting time violations are involved.

As the factual and procedural history is long and complicated, I provide a brief breakdown of the highlights.  In November 2011, Dad was served with a temporary restraining order based on allegations that he was abusive to one of the kids and to Mom.  As the allegations involved Dad's use of weapons, the police went to the home and discovered a legally registered handgun.  Also discovered, however, were illegal hollow point bullets, which led to Dad being charged with a weapons offense.  Shortly thereafter, Dad filed a complaint for divorce and a January, 2012 order reflected the parties' consent to Mom retaining temporary custody of the children and Dad being prohibited from any form of contact with Mom.  Mom voluntarily dismissed her restraining order.  Importantly, the order also provided that Dad "shall have visitation with the minor children of the marriage in accordance with the dictates of the Morris County Prosecutor's Office and/or the Court[.]"  A custody expert was appointed, and Dad consented to undergoing a drug and alcohol assessment.  Shortly thereafter, the Division of Child Protection and Permanency (DCPP) issued a letter concluding that the allegations of abuse against Steve were substantiated, but it took no further action.

The custody expert's report conveyed that the situation largely involved he said/she said allegations between Mom and Dad.  Notably, the report conveyed Mom's statement that the children wanted no relationship with Dad, and were "traumatized and fearful of him."  Mom also expressed how it would not be in the kids' best interests to even have supervised parenting time with Dad.  Telling of Mom's potential involvement of the children in the litigation, the children, when meeting with the expert, referred to their opinions of their relationship with Dad as "we."  The expert noted, as a result, that it was difficult to tell if the children were expressing their own views, or those shared by Mom.  The report's concluding sentiment was that the goal for the family was for the children to have a positive relationship with Dad.  As a result, he recommended that the kids see a therapist or counselor with expertise in "high conflict divorce cases", and that Dad should join the sessions once the children develop a rapport with the counselor.  Depending on how those sessions went would then help guide next steps in the relationship.

Shortly thereafter, the criminal judge maintained the "no contact" condition of Dad's bail, explaining that he would follow the family judge's ruling on the issue.  The family judge then denied Dad's request for "therapeutic visitation", finding that it would be contrary to the children's best interests.  Approximately two months later, in November, 2012, Dad was indicted for second-degree endangering the welfare of a child, second degree possession of a weapon for an unlawful purpose, and fourth degree aggravated assault.

In March, 2013, the substance evaluator determined that Dad was a "consistent blackout drinker to a degree much greater than he is aware and/or willing to admit."  Among other recommendations, the expert agreed with the custody expert's parenting time recommendations.  The following month, Dad again filed a motion for therapeutic visitation with the children, certifying therein that he had not seen the kids since November 2011 – almost a year and a half earlier.  Dad added that he would undergo therapy and that he should have parenting time in accordance with the experts' recommendations.  The family judge, however, denied Dad any contact with the kids – and decided as much without any oral argument on Dad's motion, which is pretty astonishing considering the issues that were before the court.  The only reason given in the written decision for denying contact was that "the Court is not convinced that granting Plaintiff's request for supervised therapeutic visitation would be in the best interest of the children during the pendency of the criminal proceedings against plaintiff."

While motions for leave to appeal are often not granted during a divorce proceeding, the issues here were of such an emergent nature that the Appellate Division granted Dad's application.  In its decision, the Appellate Division reasoned that such relief was appropriate:

because depriving children of all contact with their father is an extreme measure that, if improperly imposed and maintained for a lengthy period of time, could cause severe injury to the children.

The importance of preserving the parent/child bond came through loud and clear in the Court's decision:

Not only do parents have a constitutional right to enjoy a relationship with their children, In Re Guardianship of K.H.O., 161 N.J. 337, 346 (1999), children likewise have the right to visit with their parents after they have been removed from the parent's home. N.J.S.A. 9:6B-4A(e). This is so even if the children verbalize a desire not to see the parent, as happened here.  The Children's Bill of Rights states that a child has the right "to visit with [his or her] parents or legal guardians . . ." or to "otherwise maintain contact with [his or her] parents or legal guardian. . . ." Ibid. A child's best interests are generally fostered when both parents are involved with the child, assuring the child of frequent and continuing contact with both parties. Finamore v. Aronson, 382 N.J. Super. 514, 523 (App. Div. 2006).

Relying upon such precedent, the dictates of Rules 5:12-6 and 3:26-1(b) (addressing a family judge's authority to restrict contact between a parent and child while a criminal part "no contact" order is in place as a condition of bail), and directives issued by the Administrative Office of the Courts (designed to protect victims of domestic violence while ensuring the effective handling of situations where there exists both a pending child protective services action and a criminal complaint against a parent), the Appellate Division noted that the family judge failed to properly include the prosecutor and criminal defense attorney in a hearing to determine whether and what type of parenting time is appropriate for the accused parent.  On remand, the judge was also required to determine if such a hearing was necessary, since, apparently, neither parent requested such relief, or whether oral argument, alone, would suffice.

While the facts and circumstances of this precedential decision are tied, in great part, to the criminal issues and related procedures, the Court's intent on ensuring the preservation of a child's relationship with both parents is telling of how carefully it will scrutinize a situation such as this to ensure that the best interests of the children are being properly served and appropriately determined.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Robert A. Epstein
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