Parenting Time in NJ Is A Constitutional Right; Each Party Has Equal Rights to Have Relationships with Their Children
Docket No. A-1211-19
Decided May 5, 2021
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division overturned a trial court’s denial of defendant’s parenting time for four years, solely on the basis of an allegation that defendant viewed pornography in the presence of the child.
In P.T., a post judgment divorce matter, The parties were divorced in 2009. They have one daughter, who was born in December 2006. Plaintiff, who is the child’s mother, is the parent of primary residential custody. Since their divorce, the parties have filed numerous motions concerning parenting issues, most centering on defendant’s parenting time. The trial court has issued over twenty orders addressing the parties’ postdivorce disputes. In this appeal, we address the latest in that series of orders.
In February 2017, plaintiff filed an application to suspend defendant’s parenting time, alleging their daughter had reported seeing defendant watch pornography on his cell phone. Plaintiff did not allege defendant had exposed their daughter directly to the pornography by showing it to her or had engaged in any other improper conduct with her. On February 21, 2017, the court entered an order to show cause to address plaintiff’s allegation and temporarily suspended defendant’s parenting time, based solely on the allegation in plaintiff’s verified complaint, pending the return date.
After conducting a hearing after the Order to Show Cause, the Court continued to suspend defendant’s parenting time simply to err on the side of caution and made no finding defendant was unfit or that harm was caused to the child. The Court required defendant to submit to a psychological evaluation. Throughout the years, defendant would attempt to submit psychological reports, each of which were rejected by the Court, continuing to suspend defendant’s parenting time — even supervised parenting time at that.
Defendant appealed and the Appellate Division reversed the trial court’s continuation of suspension of defendant’s parenting time. The Court found that at no point did the Court make a factual finding that defendant was unfit or caused harm to the child – requirements necessary to suspend his parenting time. What’s more the trial court required defendant to show a change in circumstances from the original order on the emergent application. The Appellate Division found this was in error, because there was never any finding that defendant was a harm so there was nothing for him to show he had to change. To the contrary, it was still plaintiff’s burden to show a change in circumstances that defendant was unfit and caused harm to the child as a result of the pornography incident. The Appellate Division reinstated defendant’s supervised parenting time and ordered the trial court to hold a hearing as to whether unsupervised parenting time was appropriate.
Parenting time in New Jersey is a Constitutional right. Each party has equal rights to have relationships with their children. Accordingly, Courts are tasked with upholding these values. Only when a parent is found to be unfit or a harm to the child can parenting time be suspended.
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