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NJ Courts Balance Parental Rights Against Children’s Needs for Defense Against Parental Wrongs

In the past 40 years and increasingly, both federal and state court decisions have recognized fundamental constitutional rights of parents to see, spend time with, and raise their children, without undue governmental interference.

There are limits to that doctrine.

New Jersey, as do many states, will assert a right of parens patriae — the government as legal protector of citizens unable to protect themselves, including minor children.

When harm confronts a child, even if it arises in the form of misconduct by a biological or adoptive parent, the State will intervene.

The recently decided C.H.G. v. G.C.R., an unpublished decision of the New Jersey Appellate Division, makes the point well.  In that case, the mother challenged the trial court’s order halting her supervised parenting time with the parties’ sons. The children were removed from the mother’s custody in 2009 and placed in their father’s custody, subject to the mother’s supervised parenting time with the children.  In 2010, the court suspended the mother’s supervised parenting time entirely. In 2012, the mother again moved for parenting time and the family court again ordered supervised parenting time.  Finding little or no progress reuniting the children with their mother, the family court directed the parties to use their own experts and attend further therapy.

At last, the trial judge agreed to interview the two children, then ages 16 and 13, whom he had seen and heard previously in interviews. The children recounted to the judge past abuse by their mother, including rageful behavior and throwing of large objects.  They stated they did not trust her and wanted no contact with her at that time. The family judge found that forced parenting time was not in the best interests of the children.

On appeal, the mother argued that the family court judge had effectively terminated her visitation rights — without a showing that she was unfit or that additional supervised parenting time would cause actual emotional or physical harm to either child, and without a trial. The Appellate Division determined that the mother’s parenting rights were not terminated, but rather the children, of due age to be heard and have their opinions considered, did not wish to see their mother at that time.  The trial court was open for future applications, based on a showing of changed circumstances.  Additionally, said the Appellate Division, the family court properly exercised its discretion and did not abuse that discretion.  The Appellate panel deferred to the trial court’s feel of the case, and upheld the trial court’s decision that parenting time would be harmful to the children based on its familiarity with the case, the children’s interview, and their stated preferences. The Appellate Division relied upon the family court judge’s determination that there was no evidence of improper influence over the children by their father; the children’s preferences, said the trial court, clearly came from them.

Finally, said the Appellate Division, the mother was not entitled to a trial on these issues, because the essential facts were uncontested, and the children’s interviews gave the trial court a sufficient factual basis upon which to rule.

In our experience, different trial court judges can see the same circumstances differently.  One may impose on the custodial parent and children obligations to comply with court ordered transitions to the non-custodial parent or to attend therapy or to cooperate with supervised parenting time.  Another may yield to the stated preferences of the children, if of sufficient age, and not “force” parenting time contacts if the children are not interested.  As long as the trial judge acts with due care, weighs the evidence, and applies the law appropriately, chances are his or her decision will be affirmed.

As experienced family lawyers, we know that family and individual therapy is the key to reuniting parents and children in these cases.   They key to success is whether the parties are in good faith and use their best efforts, with expert assistance, to determine the cause of the disruption and its probable solution.

The custodial parent is often blamed for the children’s refusal to spend time with the other parent, and sometimes that blame is well deserved.  However, there are cases in which the children align themselves with the custodial parent, not at his or her request, but rather because the non-custodial parent was mean, abusive, had an affair that broke the family unit, or suffered from ongoing substance abuse.  The children’s wounds are difficult to heal, under the best of circumstances.  If you add the custodial parent’s blame, bitterness, shaming, and sharing stories and even documents from the divorce file, it may be impossible for the non-custodial parent to bridge the gap with the children, at least until they are fully independent adults, possibly with families of their own.

In our view, generally speaking, children need healthy relationships with both their parents, and their own mental health and well being can be compromised by an unhealed relationship with one or both of them.  On the other hand, if contacts with a parent are destructive for a child, then it is understandable that the other parent and the child him/herself may express a need to cut off contact, except under strict supervision, or, in extreme circumstances, permanently.

If you or someone you know may have a crisis or concern about child custody, parenting time, supervised parenting time, or parental alienation of children, please call the compassionate yet tough Family Law attorneys at Hanan M. Isaacs, P.C.  We will support you in times of distress and need. Call us today at 609-683-7400 or contact us online.  We offer a reduced fee initial consultation at our Central Jersey offices in Kingston. We will listen to your facts, explain the law, and recommend options that are just and reasonable for the children and you.  Call now.  You will be glad you did.

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Hanan M. Isaacs, P.C.
4499 NJ-27
Kingston, NJ 08528

Phone: 609-683-7400
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