E.S. v. H.A. - Self-Incrimination and Custody

Custody orders can be quite complicated and involve lots of different types of conditions to visitation.  These conditions can range from a parent only receiving visitation if he or she picks up the children from a certain location to a parent only receiving visitation after providing notice to only receiving visitation if he or she completes some sort of alcohol or drug treatment program.  These conditions are highly fact specific and will vary wildly depending on the family and the case.  In E.S. v. H.A., the court was faced with the limit of the type of condition a court may put on a parent before he received visitation with the child.

In E.S. v. H.A., the parties were involved in a divorce.  During the case, the wife reported the husband to the Division of Child Protection and Permanency for potential sexual abuse against the parties’ son.  The DCPP ultimately substantiated the allegation of sexual abuse with respect to one of the alleged incidents.  The wife then filed a request with the family court seeking to suspend the husband’s parenting time with the child.  The court appointed a psychologist to conduct an evaluation and also scheduled a hearing to determine if it was in the child’s best interest for visitation to occur.  At the hearing, the wife was granted sole physical and legal custody after the court found there was clear and convincing evidence that the husband had sexually abused the child.  Based on recommendations from the psychologist, the court ordered that if the husband admitted to the abuse, submitted to a psycho-sexual evaluation, and participated in therapy, he could then and only then file an application to have visitation with the child.

The appellate court found this violated the husband’s constitutional rights.  The court pointed out that parental rights are protected by the United States constitution.  Moreover, if the husband admitted he abused the child, he could be criminally prosecuted.  Therefore, because he was compelled to self-incriminate in order to exercise his parental rights his constitutional rights were violated by that provision of the trial court’s order.  The court reaffirmed that parents could be compelled to attend treatment or counseling, “the success of which might hinge on the admission of abuse,” but the court cannot force parents to admit to a crime.

Custody orders often have a variety of obligations for both parents. We have experience in assisting our clients in making sure the requirements of an order is best for them and best for the children. Contact us today at (732) 529-6937 to talk about your case.

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