If a parent is charged and convicted with child abuse or child sexual abuse, what happens to their parental rights? Should child abusers have parental rights automatically terminated? A recent abuse case sounds the alarm that flaws and loopholes in this area of family law may be putting children in harm’s way.
The recent case comes from the U.K. where a mother was horrified to discover that her daughter’s father still had rights and access to their child even after his conviction for child sexual abuse of minors unrelated to him. He was banned from future contact with all children except his own. Because he retained parental rights, he had some say over his child’s health, education, and living arrangements. The thought of what could happen to her child after her ex-husband’s release from prison drove Bethan to family court.
Could this happen in New Jersey?
Here is how the UK case concluded: After a series of hearings that included evaluations by a social worker of both Bethan and her daughter and her ex-husband, the court decided that Bethan’s daughter should only live with her. Despite the father’s heartfelt appeals, the judge “comprehensively restricted” his parental rights, finding him to be “an extremely high risk.” The judge banned him from receiving the yearly reports he had requested and entered an order making it more difficult for him to apply to change the decision after his release from prison. He will be informed only if his daughter leaves the country or falls terminally ill; he will never be told where she and her mother live.
While the decision was an enormous relief for Bethan, the cost of pursuing this outcome was high – more than £30,000. She is now an advocate for a change in the law that would automatically suspend the parental rights of pedophiles upon sentencing and require them to apply to a family court for restoration.
What happens to parental rights in New Jersey after a conviction of child abuse?
Many parents wonder what would happen in a similar case in New Jersey. While the answer is complicated, in general, what happened in the U.K. case would be less likely to ever occur here given the way New Jersey family law is structured. While it is difficult to terminate a parent’s rights completely, New Jersey’s child custody statutes protect children from a parent who has been convicted of sexual offenses.
Under N.J.S.A. § 9:2-4.1, a person convicted of sexual assault under N.J.S.2C:14-2, sexual contact under N.J.S.2C:14-3, or endangering the welfare of a child under N.J.S.2C:24-4 cannot be awarded custody of or visitation rights to any minor child unless the convicted parent shows by clear and convincing evidence that such an award would be in the best interest of the child. This is an extremely difficult hurdle for a perpetrator to surmount.
Loss of Custody and Visitation Versus Termination of Parental Rights
If you have physical custody of your child, you have the right to have your child live with you. If you have legal custody, you have the right to make major decisions about your child’s health, education, or upbringing. Both legal and physical custody can be sole or joint. A parent who has neither legal nor physical custody usually still has the right to parenting time, also known as visitation. Under the statute discussed above, however, parents convicted of the covered offenses have no right to custody or visitation, unless they can show by clear and convincing evidence that it would be in the child’s best interest.
A denial of custody and visitation, however, is not the same as a termination of parental rights. Because the statute does not terminate parental rights, parents who are denied custody and visitation remain responsible for paying child support. They can also try to have the custody and visitation decision modified in the future if circumstances change substantially. Unless they meet their burden of clear and convincing evidence, however, they will have no contact with the child and the child’s location will be kept confidential, even in a hearing for support.
Termination of Parental Rights
Parental rights are fundamental under the U.S. and New Jersey Constitutions. Termination of parental rights is permanent and means that a parent is no longer a parent in the eyes of the law. In 1982, the U.S. Supreme Court stated that termination can be allowed only after a full hearing has resulted in clear and convincing evidence that the parent is “unfit.” Santosky v. Kramer.
Under the custody laws, the burden is on a convicted parent to meet the high bar of proving that some contact with a child is in the child’s best interest. By contrast, the burden of proving that a termination of parental rights is appropriate is on the party who wishes to terminate such rights. The state of New Jersey grants state courts the authority to compel involuntary termination of parental rights only under the circumstances set out in NJSA § 30:4C-15. A party seeking termination must prove conclusively that revoking a parent’s rights is necessary to protect the child. Termination cases are handled by the New Jersey Division of Child Protection and Permanency (DCPP).
The specific statutory circumstances for termination of parental rights are as follows:
- The parent has been convicted of a crime of abuse, abandonment, neglect of or cruelty to the child. NJSA § 30:4C-15 (a).
- The child’s best interests require placement under guardianship. NJSA § 30:4C-15 (c).
- The parent has failed, for a period of one year following a child’s removal from the home for the child’s protection, to correct the conditions leading to removal, despite being physically and financially able to do so, and notwithstanding the division’s reasonable efforts to assist the parent. NJSA § 30:4C-15 (d).
- The parent has abandoned the child. NJSA § 30:4C-15 (e).
- The parent has been convicted of specified crimes, including murder, manslaughter, or assault, that either resulted or could have resulted in the death of or significant bodily injury to the child or another child of the parent. NJSA § 30:4C-15 (f).
NJSA § 30:4C-15-1 provides clarification regarding the meaning of “best interests” under NJSA § 30:4C-15 subsection (c), “abandonment” under subsection (e), and “reasonable efforts” under subsection (d).
If a parent has been imprisoned for a crime that does not fit specifically into subsections (a) or (f) of NJSA § 30:4C-15, termination of parental rights could still be appropriate depending on the circumstances. In the 1993 case, Matter of LAS, the New Jersey Supreme Court stated that because incarceration affects a parent’s ability to care for a child, it is relevant to a determination of abandonment or unfitness. The evaluation of an incarceration is fact sensitive and must be assessed in terms of the specific circumstances, such as opportunities for visitation and the child’s bond with the parent. The nature of the underlying crime is also relevant.
If you are in a situation where your child’s other parent has committed a serious crime, including sexual abuse or any kind of abuse of a child, you should not have to worry about what could or could not happen. For answers to all your questions about custody, visitation, and termination of parental rights, contact us or call us today: 888-888-0919.