Sexual Abuse, Self-Incrimination, and Parenting Time in New Jersey
September 8, 2017
In a recent New Jersey child custody case, a couple separated in 2008, after a period in which the wife claimed there was domestic violence. The marriage ended in a consent judgment of divorce, although the couple couldn’t resolve their parenting and custody issues before the judgment was entered.
In 2009, the mother contacted the child services division, making claims about the father’s improper and sexual conduct. The Division investigated to see whether the father sexually abused the child, and a temporary restraining order was put in place. The father’s parenting time was suspended.
The court dismissed the domestic violence allegations. However, the wife successfully got an order to show cause so that the judge could review the sexual abuse investigation. The judge reviewed and got rid of the restraints, ordering that the father could resume parenting time. However, the Division told the father that the investigation found the son had been sexually abused, and the father was to blame. The finding of abuse related to one incident was overturned, but a second finding of abuse as to another incident stayed in place.
The plaintiff asked for a reconsideration of her request to suspend parenting time. No hearing took place. The judge entered an order to set a hearing on the issue of whether it was in the child’s best interests to have the father’s parenting time be put in place again. There was no hearing, and issues and disputes came up about expert witnesses. A psychologist was appointed as an expert, and she was charged with evaluating what would be in the son’s best interests.
Ultimately, the judge prohibited the father from contacting the son, except for supervised visits. The father withdrew his administrative appeal regarding the abuse finding. A new judge determined that by clear and convincing evidence, the father had sexually abused the son. He ordered the mother to have sole legal and physical custody of the son and denied the father parenting time.
In order to resume parenting time in the future, the court mandated that the father comply with the requirements stated in testimony, including admission of wrongdoing, psychosexual evaluation, and therapy. The order also provided that if the defendant completed those requirements, he could apply for the court to reconsider parenting time by undergoing therapeutic management of reunification.
The father was ordered to pay attorneys’ fees and costs. He moved for reconsideration but was denied. On appeal, he argued that the orders requiring him to admit wrongdoing violated his constitutional right against self-incrimination. He also argued that the opinions expressed by the psychologist lacked sufficient merit to warrant discussion. The psychologist had testified that if a perpetrator wasn’t willing to admit to the abuse and get services needed to prevent recurrence, there shouldn’t be visitation.
The defendant didn’t raise a constitutional challenge at the lower level. However, because of the importance of the issue, the court agreed to review the issue. It reasoned that a matter is incriminating when it’s part of a crime or is a situation that would form grounds under which it could be reasonably inferred a crime had been committed.
The admission requested was one in which the defendant would admit he sexually assaulted his son. The appellate court reasoned that it didn’t matter whether the proceeding was a criminal prosecution because the Fifth Amendment was violated if the State compelled testimony by threatening to inflict sanctions unless the constitutional privilege was given up.
The appellate court found that the orders conditioning parenting time on the father’s admission of wrongdoing compelled him to waive his privilege against self-incrimination and violated his Fifth Amendment rights. The appellate court vacated those portions of the orders that violated his rights. The rest of the orders were affirmed.
If you are considering a divorce in Bergen County, and you are concerned about alimony or visitation, it is important to retain an experienced and aggressive attorney to seek an appropriate outcome. Contact the lawyers of Leopold Law at (201) 345-5907 or through our online form. We have attorneys available who can handle all aspects of a divorce.