Are you charged with stealing chewing gum? Is this your only criminal charge? Have you been criminally charged with interfering with the custody and visitation arising out of a family case?
Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.
This is a very peculiar case addressing whether a parent’s decision to not comply with a child custody order should be considered a criminal violation. However, the same issues outlined in reviewing this decision are the same factual analysis that must be done if a defendant is charged with a very minor criminal charge. In both instances the appellate division is reviewing the assignment judge’s evaluation needed to determine whether or not the criminal charge is “deminimus” or insignificant.
In this case the prosecutor’s office decided to pursue a criminal indictment for a defendant who did not comply with a child custody visitation schedule. The defendant made the decision to take her child to a swim class in anticipation of being around the pool during the summer. The total missed/scheduled visitation with the father was approximately a half hour. The Appellate Division did indicate that this type of prosecution for this charge, although exist on the books, is highly unusual. In addition, as opposed to criminal prosecution, the this court stated that the family court has many more tools to assist in assisting and governing this type of behavior. Nevertheless, the appellate court goes through an extensive evaluation of the decision-making process of the assignment judge on these motions to have the deminimus dismissal case law applied.
The key to these cases is the individual and idiosyncratic nature of the offense and facts supporting the defendant’s application to the court. Obviously the alleged crime must be monetarily insignificant as will as a one time event in the defendant’s life. However, an extensive review of the particular facts and life of the defendant must be evaluated by the court. The appellate court reversed the trial court’s decision based on the incomplete record established by the trial court. As a result the decision was reversed and remanded for additional facts and review of the law.
Remember, the trial court must conduct a factually case specifics review for these motions to dismiss.