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By the time of the hearing in 2012, Defendant had withdrawn his appeal of the DCPP findings.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.