Article by Daniel A. Levy, Esq.

It is unfortunate, but while a couple is in the process of divorce or separation, there may be incidents of domestic violence. Domestic violence and similar cases of abuse and neglect are criminal matters, while visitation and temporary parenting time arrangements are family court matters. Below I discuss a recent Appellate Division case that explains the important court rules regarding visitation during divorce while criminal charges for abuse of the children are pending.

Related: Family Law, Criminal Law


Visitation orders and bail conditions

The case on appeal, S.M. v. K.M., included a fact pattern that is not altogether unheard of. In that case, the couple had two children and it was clear that their marriage was over. The wife was alleging that the husband had committed acts of domestic violence against her and one of the children (specifically, assault with a BB gun) – she filed for a Temporary Restraining Order (“TRO”) and there was a criminal complaint against the husband. The husband soon after filed for divorce; he was eventually indicted on the criminal charges. Since the criminal charges were pending, the wife voluntarily dismissed the TRO, relying on the criminal court’s “no contact” order. DYFS was also involved and concluded that there was abuse of the child.

By way of background, it is notable that criminal courts almost always impose a “no contact” order as a condition of bail when there is a specific victim involved. For example, if a person assaults his neighbor, the judge would order that the person have no contact with the neighbor while the criminal case is pending. Violating the order could lead to serious consequences, including revocation of the bail and detainment in the county jail. In family court matters regarding divorce, it is also common that the judge will issue an order temporarily setting visitation while the divorce is pending. In cases for a restraining order when there couple has children, the family court judge will order visitation temporarily (or bar visitation temporarily) and will then issue another order regarding visitation if a final restraining order is entered. In all types of cases, judges must keep in mind that parents have a constitutional right in New Jersey to enjoy a relationship with their children – and the children have that same right.

Banning visitation requires a best interest hearing

With the above legal background in mind, the Appellate Division in S.M. v. K.M. explained the error of the trial court. At the trial court level, the criminal judge ruled that the family court should decide what the visitation should be. The family court judge, however, banned all visitation pending the outcome of the criminal case, since the father allegedly assaulted the son with a BB gun. The father made another application for temporary visitation after receiving a period of therapy, and he was again denied.

The Appellate Division explained that what the family court judge did was incorrect. The criminal court judge correctly referred the visitation issue to the family court, as required by R. 5:12-6. The Administrative Office of the Courts promulgated procedures for co-occurring child abuse and domestic-violence cases in which an abuse and neglect case is filed concurrently with a complaint alleging domestic violence against the child. The aim of AOC Directive 03-09 was to coordinate the policies when there is pending both a child protective services action and a criminal complaint against a parent. Not only do the rules require the family court judge to make the visitation determination, but it also requires that the prosecutor and defense attorney be allowed to participate. However, the rules also require that the family court judge conduct a “best-interest analysis” to determine what kind of visitation, if any, is in the best interest of the child – including when criminal charges of abuse against the child are pending.

A best-interest analysis is exactly what it sounds like – the judge must decide what is in the best interests of the child. This may be something very informal, like review of document and legal arguments from counsel, or something very lengthy and formal, like a mini-trial with expert testimony, evaluations, etc. But in any case, the judge does need to go through the analysis and cannot simply prohibit all visitation pending the resolution of the criminal case. If visitation is prohibited entirely, it must be based on evidence in the record.

New Jersey Family and Criminal Lawyer – Free Consultation

If you or someone you know are facing charges for child neglect or abuse in the in criminal or family court, please call us right away for a 100% free consultation, on the phone or in our office. We will review all court documents with you and advise you on what we can do to help you. Remember, is the prosecutor, DYFS or anyone else files a Complaint or a Motion in Family Court or criminal charges, they are looking for the best possible result from their point of view. Do not expect to appear in court on your own, explain your side of the story, and have the judge agree with everything you say. This is very rare. It is important to be represented by a skilled attorney.