By Carolyn Daly, Esq., Founder and Managing Partner of Daly & Associates, LLC
It happens all the time: a parent makes an accusation against the other parent and the court has to make a quick decision, based on limited information, on what to do with parenting time for the accused parent. It should be unsurprising that courts faced with this situation will claim they lean toward protecting the child, even if it means a parent’s right to parent their child will be curtailed. Most often, the court’s solution is to restrict parenting time with the accused by either suspending that parent’s parenting time, or instituting supervised parenting time pending a hearing. But does this actually protect the child?
Our custody statute, N.J.S.A. 9:2-4, “declares that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents” and “it is in the public interest to encourage parents to share the rights and responsibilities of child rearing.” So when is restricting a child’s contact with a parent actually in the best interests of that child?
Our courts do not appear to have really addressed this issue head-on, as there are very few cases that address supervised parenting. So what, exactly, is the basis to implement supervised parenting time? Pursuant to N.J.S.A. 2A:12-7, “in the area of child visitation a court often orders supervised vitiation where there has been a history of child abuse, medical disabilities, psychiatric problems or other situations where the safety and welfare of the child may be jeopardized.” If you think that’s pretty broad language…well, it is. Thankfully, a recent case in the Appellate Division may have given lawyers and their clients better guidance for future cases. In P.T. v. A.T., 2021 N.J. Super. Unpub. LEXIS 789 (App. Div. 2021), a father had his parenting time suspended after his child’s mother accused him of watching pornography in front of his daughter. The father repeatedly did everything the court asked of him to get his parenting time back, including multiple evaluations, but the trial court kept ‘moving the goalposts,’ and as a result the father was not allowed to see his child for over four years.
The Appellate Division reversed the trial court orders noting at the outset that the trial court never found that the father posed a danger to the child. The appellate court reiterated that our laws protect against the thwarting of parenting time. Thus, a court may exercise its authority to restrict parenting time “only when credible evidence clearly and convincingly establishes parental unfitness or harm to the child.” The trial court “had not determined the child needed protection from [father]” and thus the suspension of his parenting time was unreasonable. The Appellate Division thus sent the case back to the trial court to hold a hearing. At that hearing, it was the mother’s burden to prove (1) that the father watched pornography in front of the child, and (2) if proven, that this rendered the father unfit or put the child in danger. Only then could the court consider restricting father’s parenting time.
Although P.T. dealt with a case of suspended parenting time, the standard enunciated by the Appellate Division can clearly apply to supervised parenting time as well. No longer should courts simply err on the side of restricting parenting time, either through supervision or suspension, when an accusation is made. Doing so has the effect of placing the burden on the accused to prove himself or herself innocent of the accusation. The court was clear in P.T. that the burden is on the accuser to prove by clear and convincing evidence that the accusation is true and that the accusation, if proven, either renders the accused parent unfit to exercise normal parenting time, or would place the child in harm’s way. It is only then that the court should act to restrict the accused’s parenting time.
While placing the burden on the accuser is significant in itself, the amount of proof required is also significant. In most family matters, the party who has the burden of proof simply needs to prove their position is “more likely than not;” they need only a scintilla more evidence to learn toward their side. That is not the case here. Now it is clear that accusers must prove by clear and convincing evidence, a high standard to meet, that the accusation is true and renders the other parent unfit.
Unfortunately, P.T. is still not perfect. As just one example: how long should the supervision be in place? Most experts agree supervision should only be kept in place long enough to get past the harm and should not be used more permanently. The hope remains that one day the court can more clearly delineate standards for trial courts to follow, for example, period reviews every few months to determine whether supervision should continue or cease. Until then, parents will simply have to stress to the courts that supervision should not be a long term solution.
The safety and well-being of a child is arguably any parent’s primary duty. If you have had your parenting time restricted, or if you believe you have evidence that the other parent of your child should have his or her time supervised, call Daly & Associates today to set up a consultation with one of our attorneys. We’re working “Daly” for you and your children.
