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New Jersey Appellate Division Bars the Requirement for a Parent to Admit a Criminal Wrongdoing as a Condition to Seek Parenting Time With One’s Child

On August 15, 2017, the New Jersey Appellate Division approved for publication the decision in the matter of E.S. v. H.A (A-3230-14T2 and A-3256-14T2), in which the Appellate Division addressed whether a parent may be required to admit to a crime as a condition for that parent to be able to make an application for visitation with one’s child.  The Appellate Division concluded that parents cannot be required by the state to forego their Constitutional right against self-incrimination as a condition to seek custody or visitation with their child.

In this case, the parties divorced in 2009, but they had been unable to resolve their custody and parenting time dispute over their son, Richard, by the time of the divorce.  During the litigation, Plaintiff’s two requests for domestic violence restraining orders against Defendant were denied.  During the litigation she reported to the Division of Child Protection and Permanency (DCPP) that Defendant had sexually abused Richard on two occasions, leading to the suspension of Defendant’s visitation.   One month after the divorce, DCPP determined that the “abuse was substantiated for sexual molestation” of Richard by Defendant as to one of the two alleged incidents.  While Defendant pursued an administrative appeal of the DCPP findings, Plaintiff filed an application in the family court seeking to reinstate a suspension of Defendant’s parenting time.  The family court scheduled a hearing to determine whether it was in Richard’s best interest for parenting time with Defendant to resume, and appointed a psychologist to conduct an evaluation.

By the time of the hearing in 2012, Defendant had withdrawn his appeal of the DCPP findings.  The family court in 2013 issued an oral opinion, finding that there was clear and convincing evidence that Defendant had sexually abused Richard.  The court granted Plaintiff sole legal and physical custody of Richard and denied Defendant parenting time.  As recommended by the psychological experts, the court further ordered that if the Defendant (1) admitted wrong-doing; (2) submitted to a psycho-sexual evaluation; and (3) participated in individual therapy, he could apply for a consideration of future parenting time through Therapeutic Management Reunification.

The Appellate Division affirmed the portion of the trial court’s decision, except for the portion that required Defendant to comply with certain requirements suggested by the court appointed psychologist in order to be permitted to make a future application for parenting time with Richard.  The Appellate Division pointed out that the right of a parent to raise and maintain a relationship with one’s child, without undue government interference, is considered a fundamental Constitutional right.  Consequently the law favors visitation.  There are, of course, limits to a parent’s constitutional rights given that the State also has a responsibility to protect children from harm, even when it is a parent inflicting that harm.   Custody can be restricted or terminated if a parent is unfit, or if a parent is harming the child.

Both New Jersey’s state Constitution, and the Fifth Amendment to the United States Constitution are interpreted to allow every person the right to refuse to make incriminating statements in an action that will incriminate him or or expose him to penalty for a crime.    If Defendant has to admit that he sexually assaulted Richard in order to make an application for visitation, he could be criminally prosecuted and exposed to criminal penalty.  The federal and state constitutions are interpreted such that the state cannot force someone to choose between his/her Fifth Amendment rights and another important interest.   The state cannot sanction someone who refuses to surrender his/her constitutional right not to incriminate him/herself.

In this case, the Court reasoned that the trial court’s orders threatened Defendant’s parental rights because he was not permitted to file an application to modify orders so that he could visit his son unless and until he waives his privilege against self-incrimination and admits wrong-doing.   As there were no New Jersey decisions directly addressing the issue, the Court examined out of state decisions to draw a distinction between “compelled self-incrimination – in violation of constitutional rights – and incriminatory statements that might be necessary for meaningful reunification therapy to begin.”

First, the court examined a Minnesota case entitled In re Welfare of J.W., 415 N.W.2d 879, 880-81 (Minn. 1987) where parents challenged an order that required them to undergo psychological evaluations that would require them to explain the circumstances that lead to the death of their two year old child.  The state threatened to terminate their parental rights if they refused.  The Minnesota court concluded that this provision violated the litigants’ Fifth Amendment rights.  The out-of-state court reasoned that the state could compel the parents to undergo treatment but not to compel the parties to incriminate themselves. Their therapy may be ineffective if they did not make those incriminating disclosures in therapy, and that ineffective therapy may then hurt the parents’ chances of regaining custody of the children, but that consequence is outside the protection of the Fifth Amendment.

Next, the Appellate Division examined a decision in Vermont in the matter of In re M.C.P., 571 A.2d 627 (Vt. 1989), in which the trail court required that a child be held in the custody of the state’s child welfare agency until the parents “got over the extreme denial of any abuse and seek counseling to overcome those problems”.   The Vermont Supreme Court interpreted this decision to require that the parents waive their Fifth Amendment privilege and struck that requirement from the order.   The Vermont Court reasoned that courts cannot require parents to admit criminal misconduct in order to be reunited with their children.  The parents have to establish that it’s in the child’s best interest to return custody to them in the face of serious misconduct.  The court cannot mandate that the only path to reunification is for a parent to abandon his/her right against self-incrimination.   Courts cannot bar parents who do not admit wrongdoing from showing that they are good parents and that it is in the best interest of the child to be reunified with them.  A court can compel parents to participate in treatment, counseling or reunification services, “the success of which might hinge on the admission of abuse”, but parents cannot be required to admit to committing a crime.

The Appellate Division was persuaded by these two out of state decisions on this issue.  The trial court had conditioned the ability for Defendant to make any future application for visitation with Richard on whether he admitted to wrong-doing.  He had to admit that he sexually abused Richard in order to seek visitation with him.  Thus, the trial court required Defendant to waive his Fifth Amendment privilege in order to seek visitation with his son.   Although Defendant did not challenge the trial court’s other requirements and conditions for him to complete before he could make an application for visitation, those requirements were also struck down by the Appellate Division.  The Appellate Division did not want the trial court to deny Defendant access to the courts even though the parties’ case had already been “protracted, contentious and, on occasion, unnecessary.”  The other conditions established by the trial court to be permitted to make a future application violated defendant’s right to invoke the equitable powers of the family court.   It is possible that any future application for visitation could fail if Defendant does not address the issues that the psychological experts thought were necessary for parenting time with Richard to resume, but the trial court erred by restricting Defendant’s right to at least seek further review of the court.