S.M. v. K.M.
433 N.J. Super. 552
| N.J. Super. Ct. App. Div. | 2013Background
- Steve seeks supervised therapeutic visitation with his two children amid ongoing criminal charges; the court previously imposed a no-contact order and a no-visit arrangement.
- Two court-appointed experts (Dr. Monday and Benson) recommended supervised visits and treatment for Steve; the family judge denied visitation without a hearing.
- Divisions and proceedings: the Division of Youth and Family Services substantiated child abuse/neglect against Steve; a custody/visitation evaluation was conducted.
- Criminal charges include second-degree endangering welfare of a child, second-degree weapon possession, and fourth-degree aggravated assault; a criminal bail order restricted contact.
- The Court reversed and remanded to hold a Rule 5:12-6 hearing with prosecutors and defense counsel, applying the Administrative Office of the Courts directive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rule 5:12-6 requires a hearing to determine visitation while criminal charges are pending. | Steve argues for therapeutic visitation per experts. | Kim argues against modification during pendency of charges. | Remand for a hearing under Rule 5:12-6. |
| Whether the Directive requires prosecutorial and defense participation in the Family Part visitation hearing. | Plaintiff contends directive requires inclusion of prosecutor. | Defendant contends no special requirement beyond rule; record uncertain if letter was seen by judge. | Remand to conduct hearing with prosecutor and criminal defense lawyer. |
| Whether the initial denial of visitation was appropriate without a plenary hearing. | Unrestricted contact or supervised visits could benefit child welfare; denial was excessive. | No-contact during criminal proceedings can be justified to protect children. | Judicial remand to determine best interests with proper process. |
Key Cases Cited
- In re Guardianship of K.H.O., 161 N.J. 337 (1999) (child's right to visitation; parent-child relationship protected)
- V.C. v. M.J.B., 163 N.J. 200 (2000) (visitation rights; extraordinary presumption against permanent denial)
- Finamore v. Aronson, 382 N.J. Super. 514 (App.Div.2006) (child’s best interests and ongoing parental involvement)
- N.J. Div. of Youth & Family Servs. v. F.M., 375 N.J. Super. 235 (App.Div.2005) (child protective context; importance of continued parental contact)
- State v. Morales, 390 N.J. Super. 470 (App.Div.2007) (administrative directives have force of law)