167 A.3d 685
N.J. Super. Ct. App. Div.2017Background
- Parents E.S. (plaintiff) and H.A. (defendant) divorced after contentious DV litigation; their son R.A. was born in 2004.
- DCPP investigated allegations of sexual abuse of R.A.; Division substantiated one incident (July 6, 2009) after administrative review.
- Family Part appointed Dr. Jennifer Perry as court expert to evaluate when/if supervised Therapeutic Management of Reunification (TMR) could resume parenting time.
- After a plenary hearing the judge found by clear and convincing evidence that defendant sexually abused the child, awarded plaintiff sole legal and physical custody, and denied defendant parenting time.
- The November 2013 and January 2014 orders conditioned any future parenting-time application on prerequisites including: (a) admission of wrongdoing, (b) a psychosexual evaluation, and (c) individual therapy; court later awarded plaintiff attorney fees and costs, subject to reduction on reconsideration.
- On appeal the court affirmed most findings but vacated the provisions that required defendant to admit wrongdoing and those that barred him from seeking parenting-time relief until he completed specified preconditions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether conditioning any future parenting-time application on defendant's admission of wrongdoing violates the privilege against self-incrimination | Admission is necessary for effective TMR and in child’s best interests before parenting time resumes | Requirement compels waiver of Fifth Amendment/N.J. privilege and thus is unconstitutional | Vacated: conditioning relief on an admission of wrongdoing violates the Fifth Amendment and state privilege and is unenforceable |
| Whether other preconditions (psychosexual evaluation, therapy, TMR) imposed prior to any application improperly restrict access to the court | Preconditions are reasonable safeguards to protect the child and avoid needless relitigation | Preconditions improperly bar defendant’s right to petition the court for modification/access to judicial process | Vacated those provisions that prevented filing or required completion before any application; court may consider such services but cannot foreclose access |
| Whether appellate review should consider constitutional claim raised for first time on appeal | Plaintiff argued defendant failed to raise the constitutional claim below | Court permitted review because issue is significant, record complete, and a pure question of law | Court considered and decided the constitutional issue on the merits |
| Fee award and subsequent adjustments | Plaintiff sought counsel fees for litigating to restore custody/parenting time | Defendant challenged fee amount and later claimed inability to pay; court reduced payment schedule and offset fees | Appellate court affirmed fee awards in large part and upheld trial court’s fee rulings except as modified below (appellate decision mainly focused on vacatur of precondition provisions) |
Key Cases Cited
- State v. P.Z., 152 N.J. 86 (N.J. 1997) (distinguishes compelled admissions from therapeutic requirements and analyzes coercion in child-welfare contexts)
- State v. Muhammad, 182 N.J. 551 (N.J. 2005) (discusses New Jersey privilege against self-incrimination and its broader protection)
- P.T. v. M.S., 325 N.J. Super. 193 (App. Div. 1999) (describes dilemma in family cases involving child sexual abuse allegations)
- Parish v. Parish, 412 N.J. Super. 39 (App. Div. 2010) (holds that access to courts cannot be unduly restricted absent findings justifying limitations)
- In re Welfare of J.W., 415 N.W.2d 879 (Minn. 1987) (holds courts may not compel incriminating admissions as a condition of reunification)
- In re M.C.P., 571 A.2d 627 (Vt. 1989) (strikes requirement that parents admit criminal misconduct to regain custody; distinguishes therapy participation from compelled admissions)