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

If I Reside Out Of The Country, Am I Allowed To Have Contact With My Children In N.J.?

            Generally speaking, yes.  Under New Jersey child custody laws, courts seek to promote contact between parents and their children unless a lawyer proves in court that this would be against the best interests of the child.  If there has been a period of time that one parent did not see or communicate with the children (or did so sparingly), our attorneys often seek an order for reunification therapy in order to rehabilitate the relationship.  Often Skype communications are essential.  Next you will find a New Jersey decision that breaks down how a judge of a New Jersey Family Court examines these types of child custody and parenting time matters.

            In M.S. v. J.S., father J.S. appealed an order of the Superior Court of New Jersey, Family Part of Bergen County, dated May 28, 2015, that suspended his two year therapeutic reunification process with his daughter conducted over Skype, without any explanation. The record at hand did not support the termination of the Skype therapeutic reunification sessions. As such, the New Jersey Appellate Division held that the entire May 28, 2015 should be reversed. The New Jersey Appellate Division stated that all parents have a right to contact with their children, even those convicted of crimes. Furthermore, not only is there a constitutional right for parents to enjoy a relationship with their children, but children also have a right to visit their parents. A good relationship between the children and their father would only positively contribute towards their mental health. The best interests of a child are generally fostered when both the parents are involved in the child’s life, which assures the child of frequent and continuing contact with both parents.

            M.S. and J.S. were married in 1999. J.S. is English and M.S. in Canadian. The family lived together in England until M.S. moved to America with their two daughters in 2007. J.S. stayed in England where he still lives to this day. J.S. was incarcerated for financial frauds for two and a half years, and was on parole thereafter.

            While J.S. was imprisoned, he threatened M.S. on the phone. Consequently, a final restraining order was entered against him under New Jersey Statute 2C:25-17 to -35, under the Prevention of Domestic Violence Act, on December 1, 2010. An amended ordered was issued in January 2012 that allowed contact between J.S. and his children through letters, and directed that reunification visitation therapy should start. This resulted in Skype sessions between J.S. and his daughters. Paul Dasher, Ph.D. was appointed as the reunification therapist on April 12, 2012. Moreover, in 2013 J.S. started his own psychiatric treatment. Dr. Dasher recommended face to face visitation, through visits to either England, the United States, or Canada, on April 3, 2014. However no action was ever taken to accomplish Dr. Dasher’s recommendation.

            At first, Dr. Dasher was allowed to record the Skype sessions and share them with the parents and their lawyers, however that eventually stopped. The children stated that they were not comfortable with being photographed by J.S. during their Skype sessions. On March 1, 2015, M.S. brought the children to Dr. Dasher’s office for a regularly scheduled Skype visit, but before the session started she told him that she was reading a report made by J.S.’s therapist in which he commented that he watched a recording of one of the Skype sessions between J.S. and the daughters. That day’s scheduled session did not happen. J.S. later stated that he recorded that one Skype session because he wanted to show it to the therapist to get some comprehensive guidance about how to communicate with his daughters. No Skype sessions ever took place after that. While there was no order in place that prevented him from recording the sessions, he did so without getting anyone’s permission. J.S. immediately agreed not to record any future sessions.

            In 2012, the judge ordered J.S. to submit detailed information about his sentence and convictions at M.S.’s request. The judge’s reasoning for doing so was not included in the factual record. When asked to explain the reason for the order at oral argument, J.S.’s attorney said that the request for information was intended to build trust. In the coming three years, M.S. filed 12 motions to compel more and more discovery relating to the sentence, charges, and parole status. As a result of all these motions, J.S. was ordered to pay M.S. $ 24,011.50 in attorney’s fees. The New Jersey Appellate Division found that nothing in the record explained why these discover orders were entered. The judge never explained his reasoning for suspending the therapeutic visitation sessions on May 28, 215 either.

            On appeal, J.S. challenged the ongoing discovery demands about his prior convictions and sentence, the suspension of his Skype therapeutic reunification sessions, the attorney’s fee, and a $10,000 sanction against him.

            The New Jersey Appellate Division started its opinion by stating that a Family Part court’s factual findings are binding on appeal as long as they are supported by substantial, adequate, and credible evidence. With that said, the Family Part’s interpretation of law, and the legal consequences that flow from established facts are not given the same deference.  According to Rule 1:7-4(a), a judge has the responsibility to make findings of fact and conclusions of law on every motion he or she decides, by a written order that is appealable. Failing to perform that duty  is a disservice to the litigants, the attorneys, and the appellate court, and could be a valid grounds for reversal.

            In M.S. v. J.S., that record before the appellate panel did not contain any findings of fact or conclusions of law reached by either of the two judges who entered discovery orders requiring J.S. to submit detailed documentation regarding his sentence and convictions. This is not a standard practice in Family court. The New Jersey Appellate Division did not see any connection with J.S.’s 2010 white collar convictions and contact with his children. This was not based on any established case precedent, fact in the record, or findings of fact or conclusion of law that Rule 1:7-4(a) requires. Therefore, the appellate panel reversed.

            Furthermore, the New Jersey Appellate Division stated that all parents have a right to contact with their children, even those convicted of crimes. Furthermore, not only is there a constitutional right for parents to enjoy a relationship with their children, but children also have a right to visit their parents. Here J.S., a loving parent, wanted to see his children to thrive emotionally. A good relationship between the children and their father would only positively contribute towards their mental health. The best interests of a child are generally fostered when both the parents are involved in the child’s life, which assures the child of frequent and continuing contact with both parents. The appellate panel found that once J.S. agreed to no longer recording any session, the Skype reunification sessions should have continued normally, towards the goal of face to face contact when therapeutically possible. Moreover, the record at hand did not support the termination of the Skype therapeutic reunification sessions. Therefore, the New Jersey Appellate Division held that the entire May 28, 2015 should be reversed. This reversal basically returned the parents to the original visitation status quo, which was the Skype therapeutic visitation program. The appellate panel ordered the attorneys to promptly notify Dr. Dasher to contact the parents to once again begin the therapeutic visitation program, in a manner he considers most effective after the long two year hiatus.

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