4/3/2014

S.M. v. K.M.: When Family and Criminal Matters Meet

     As if divorce isn’t bad enough, sometimes a family’s circumstances also involve criminal charges or allegations. What happens when there is a pending criminal matter that directly involves the family during a divorce? When seeking the family court’s involvement while a criminal matter is pending, not only are the parties involved required to comply with certain procedural requirements. Judges are too.

     In a recently published Appellate Division decision, S.M. v. K.M., the issue of divorce, domestic abuse, and pending criminal charges all intersected. In this case, husband Steve was accused of abusing wife Kim and of putting a BB gun to their son’s head. There were several documents filed in succession: a Temporary Restraining Order (TRO), a Complaint for Divorce, and a Consent Order allowing Steve to have parenting time with the children pursuant to the dictates of the county Prosecutor’s Office and/or the Court. The Division of Child Protection and Permanency (DCPP) found that the allegation of abuse was “substantiated”, but did not take any further action. Two psychological evaluations were performed on Steve, both ultimately recommending that Steve have parenting time with the children.

     Steve was eventually indicted for endangering the welfare of a child, possession of a weapon for an unlawful purpose, and aggravated assault. He filed a motion in family court requesting therapeutic parenting time with the children. He relied on the recommendation of two psychological evaluations recommending that he be permitted parenting time. Without entertaining oral argument between Steve and his wife, the judge simply denied his request based upon the pending criminal charges. Steve appealed.

     The Appellate Division found here that the judge should have followed New Jersey Court Rule 5:12-6. This Rule requires the judge to follow certain procedures when a criminal complaint has been filed against a parent arising out of the same incident as a DCPP action. Specifically, the prosecutor and criminal defense attorney must be included in the family court hearing in order to determine the accused parent’s parenting time.

     All in all, the Appellate Division sent this case back to the trial court judge because the rules were not followed. Specifically, there was no hearing and the necessary parties weren’t included. Ultimately, the judge may deny parenting time between the children and Steve. That’s a story for another day. In the least, the judge will hopefully follow the proper procedure.

Blog authored by Jaime M. Segal, Esq.