Thankfully, sexual abuse allegations against parents do not often arise in the context of a divorce typical. However, when those scenarios do arise, they bring lawyers, litigants and judges alike in to unchartered territory where they sometimes have to sift through various accounts to get at the truth of the matter.
This case is an example of a tragic but recurring dilemma in certain family court cases involving allegations of child sexual abuse. On the one hand, there are clearly cases of imagined or even fabricated charges against a parent, especially when raised during the pendency of divorce proceedings. For a parent to stand accused of such an offense is devastating both to that individual, and to the child’s lifelong relationship with the parent. On the other hand, proof of such abuse, especially involving a very young child, is rarely clear, and the potential danger to a child from a reoccurrence, if the suspicions and accusations are well-founded, is enormous.
[P.T. v. M.S., 325 N.J. Super. 193, 198 (App. Div. 1999)].
In a subsequent case several years later, the Appellate Division in Segal v. Lynch, 413 N.J.Super. 171 (App. Div. 2010) even carved out a cause of action wherein one parent can sue the other for money damages on the grounds of parental alienation when one makes false sexual abuse allegations against the other:
[W]e are not blind to scenarios in which one parent intentionally or recklessly imbues a child with such calumnious accounts of the other parent, so wicked in their intent and so destructive in their effect, that the situation necessitates civil redress. For example, a case in which one parent falsely and intentionally accuses the other parent of sexually abusing the child is so despicable on its face and so destructive in its effect on the innocent parent that it cries out for compensation which is not available in the Family Part or even in the criminal courts. The same can be said of cases involving parental abduction, where one parent, unlawfully and without the knowledge or consent of the other parent, removes the child to a foreign jurisdiction with the intent of frustrating any lawful means for returning the kidnapped child to the aggrieved parent. In such cases, sound public policy demands that the aggrieved parent and, by extension the innocent abducted child, be given compensation beyond just reunification. Id. (emphasis added).
The recent published decision of E.S. v. H.A., A-3230-14T2 and A-3256-14T2, speaks to a different kind of scenario involving sexual abuse; one where the allegations have been sustained and the parent-child relationship hangs in the balance.
In E.S. the parties had a long history of contentious litigation, involving various domestic violence claims, motions, and the like. Ultimately, the Division of Child Permanency and Placement (DCPP) became involved with the family when allegations were made of sexual abuse against the father as to the parties’ child, Richard.
After various proceedings by the DCPP, at least some of the sexual abuse allegations against the father were sustained. Thereafter, the mother moved for a suspension of the father’s parenting time.
Following a hearing, the trial court found, by clear and convincing evident, that the father had sexually abused Richard, granted the mother sole legal and physical custody of Richard and denied the father parenting time. The resulting order further required the father to “comply with certain requirement prior to making any application for parenting time with his some”, including the following:
a. Admission of wrongdoing;
b. A psychosexual evaluation by a professional specializing in same; and
c. Individual therapy.
The father’s subsequent appeal primarily concerned the above requirement that the be required to make an “admission of wrongdoing” prior to making an application for parenting time. The father argued that requiring him to do so would violate the right against self-incrimination.
Indeed, the right against self-incrimination, although not protected by the New Jersey constitution, is deeply rooted in our jurisprudence and codified in N.J.S.A. 2A:84A-19, which states that every person in New Jersey “has a right to refuse to disclose in an action…any matter that will incriminate him or expose him to penalty…”
Both the United States Supreme Court and our New Jersey courts have consistently held that the state may not force an individual to choose between his or her Fifth Amendment right and another important interest because such choices are deemed to be inherently coercive. It does not matter whether the particular proceeding is itself a criminal prosecution. Rather, “the Fifth Amendment is violated ‘when a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered.'” State v. P.Z., 152 N.J. 86, 106 (1997).
After a full examination of the case law and surrounding circumstances, the Appellate Division in E.S. reversed the trial court’s decision requiring the father to admit to the sexual abuse allegations prior to making an application for parenting time. Its reasoning was as follows:
Here, the November 2013 and January 2014 orders conditioned any future request by defendant for parenting time upon his admission of “wrongdoing,” which we presume, based on [the expert’s] testimony, means defendant must admit that he sexually abused Richard. Such a requirement compels defendant to waive his privilege against self-incrimination and violates his rights under the Fifth Amendment and our State Constitution.
The Appellate Division further vacated the remaining preconditions that the trial court imposed on the father “prior to any application for parenting time”, reasoning that, “imposition of these other preconditions violated defendant’s right to invoke the equitable powers of the Family Part to modify its order denying him any parenting time.” While the Appellate Division noted that these application may fail absent the father’s efforts to address the issues that the court saw as vital to the reintroduction of parenting time, it made clear that the court should not reach that conclusion in advance of such a request.
Cases involving sexual abuse pose special problems and considerations for our courts. But this decision makes clear that it is important to note that our judiciary is required to preserve and protect the due process rights of everyone involved in the litigation.
Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or firstname.lastname@example.org.