May I Have Sole Custody Of My Child If The Other Parent Is Found To Have Been Sexually Abusive To Our Child?

Yes. While sole custody is rarely granted, in a case involving sexual abuse of the child by one parent should result in your attorneys obtaining sole custody of the child to the other parent. The child custody lawyers at our law firm, located in East Brunswick, New Jersey all take pride in protecting children, especially in the egregious case of sexual abuse at the hands of a child’s own parent. A recent case from the New Jersey Appellate Division illustrates how judges of New Jersey Family Courts handle such difficult and heart-wrenching cases.

In E.S. v. H.A. the parties separated in December 2008. The parties had one child, Richard, born in 2004. After alleged acts of domestic violence, the parties’ marriage ended on September 8, 2009 pursuant to a judgment of divorce (“JOD”). Prior to the JOD, the parties were unable to resolve custody and parenting time issues.

E.S., the mother, contacted the Division of Child Protection and Permanency (“DCPP”) early in 2009 when Richard was exhibiting inappropriate sexual behavior. DCPP began to investigate E.S.’s claim. In April 2009, E.S. and H.A. entered into a consent order restoring H.A.’s parenting time, which had been prohibited during the domestic violence trial. After entering into the consent order, H.A.’s parenting time was suspended again after subsequent domestic violence allegations that resulted in a temporary restraining order. In September 2009, the Superior Court of New Jersey Family Part dismissed E.S.’s domestic violence complaint. At that time, E.S. filed an order to show cause (“OTSC”), which is an order that requires one of the parties to justify or explain something to the court. In her OTSC, E.S. sought to temporarily suspend H.A.’s parenting time until DCPP concluded its investigation. On October 5, 2009, the Family Part judge ordered that H.A. be allowed to resume parenting time with Richard, in accordance with the April 2009 consent order.

On November 10, 2009, DCPP informed H.A. that it concluded that Richard had been sexually abused by H.A. H.A. sought an administrative appeal, which resulted in DCPP overturning its finding of abuse on July 27, 2009. However, DCPP affirmed it’s finding that abuse occurred on July 6, 2009. H.A. then filed a request with the Office of Administrative Law (“OAL”) for further review. During this time, E.S. filed for reconsideration of her request to suspend H.A.’s parenting time. The OAL hearing had not been held as of July 2010, so the Family Part judge set a plenary hearing for October to determine if H.A.’s parenting time with Richard should continue. However, no plenary hearing occurred. In January 2011, the judge appointed a court expert, Dr. Jennifer L. Perry, Psy. D., to evaluate Richard’s best interests regarding parenting time with H.A.

The judge provided the parties’ attorneys with copies of Dr. Perry’s reports in a February 2012 order. On April 2, 2012, the parties appeared in court, and the judge banned H.A. from having any contact with Richard unless it was a supervised visit with Dr. Perry present. The judge also set dates for a plenary hearing in 2012, which never took place. In May 2012, H.A. withdrew his appeal against DCPP. In November 2012, a different Family Part judge took over the case. In January 2013, a plenary hearing began and continued through May 2013.

On November 22, 2013 the judge filed an order and issued an opinion orally. In his order, the judge found that H.A. sexually abused Richard. The judge granted E.S. sole legal and physical custody of the parties’ son, meaning Richard would live with E.S. and E.S. would make all decisions relating to Richard. The judge also prohibited H.A. from having parenting time with Richard. Further, Section 3 of the order required that H.A. admit wrongdoing, undergo a psycho-sexual evaluation by a professional, and individual therapy, before applying for parenting time. Section 4 of the order stated that H.A. could apply for parenting time through Therapeutic Management of Reunification (“TMR”) after completing the requirements in Section 3. The judge also denied the parties’ requests for counsel and expert fees in the order.

E.S. filed for reconsideration of the order, specifically asking that the order state that H.A. sexually abused Richard and that E.S.’s request for attorney’s fees was denied. E.S.’s motion was granted and an order was entered on January 10, 2014 that stated that H.A. sexually abused Richard and that E.S.’s request for attorney’s fees was denied without prejudice. E.S. again requested attorney’s fees and on June 9, 2014, the judge issued an order requiring H.A. to pay $62,488 in attorney’s fees and costs, which were not dischargeable in bankruptcy. H.A. filed a motion for reconsideration claiming he was unable to pay attorney’s fees, and E.S. cross-moved to compel H.A. to pay the fees. On August 29, 2015, the judge issued an order decreasing H.A.’s monthly payment of attorney’s fees to $500 per month. The parties again filed for reconsideration, and on February 4, 2015, H.A. was awarded $2,520 in attorney’s fees.

On appeal, H.A. argued that requiring an admission of wrongdoing violated his constitutional right against self-incrimination under the Fifth Amendment, even though he did not raise this issue previously. The New Jersey Appellate Division noted that appellate courts do not address issues not presented during trial unless the issue involves matters of significant public interest. However, the court stated that if the issue is particularly important to one of the parties or to the general public, the court may consider it.

The Appellate Division stated that the issue H.A. raised on appeal is of substantial importance to H.A. and Richard, and future litigants with similar cases. The court indicated that a child’s relationship with his father is on the line, but also that the potential danger of sexual abuse is huge. The Appellate Division decided that the issue was significant enough for the court to review, especially since H.A.’s constitutional rights were at issue.

The Appellate Division explained that the United States and New Jersey Constitutions protect a parent’s right to raise their children without interference from the state. Furthermore, a parent’s right to raise their children is protected by the First, Ninth, and Fourteenth Amendments; therefore, the law favors visitation. However, a parent’s visitation or custody rights may be limited or terminated because the State has a responsibility to protect children from physical, sexual, and psychological harm, even if that harm stems from the parent. The Appellate Division then explained that under N.J.S.A. 2A: 84A-19 and N.J.R.E. 503, a person has a right against self-incrimination. The court stated that in this case, admitting sexual abuse would expose H.A. to criminal liability, and that individuals are not allowed to be forced to choose between their significant interests, such as parenting time, and their Fifth Amendment right against self-incrimination.

The Appellate Division found that the trial court’s orders threatened H.A.’s rights as a parent because he must incriminate himself in order to petition the court to reinstate his parenting time. The Appellate Division looked to out-of-state decisions to determine that H.A.’s Fifth Amendment right against self-incrimination was violated by the November 2013 and January 2014 orders requiring an admission of wrongdoing. The court, therefore, vacated the trial court’s orders imposing the admission requirement. The Appellate Division also vacated the portions of the orders that required other preconditions before H.A. could apply for parenting time because they violated H.A.’s right to seek modification of the order denying parenting time with the Family Part.

The Appellate Division noted that the trial court was attempting to reduce unnecessary litigation, since the court may deny H.A.’s future motions seeking parenting time. However, the Appellate Division found that the November 2013 and January 2014 orders violate H.A.’s right to apply for reconsideration or modification with the court in the future. Therefore, the Appellate Division vacated Sections 3 and 4 of the November 2013 order. The Appellate Division also vacated sections 4 and 5 of the January 2014. The court held that the remaining sections of the orders remain in effect.