USA: Right Against Self-Incrimination Preserved For Parents In Cases Involving Child Sexual Abuse


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Thankfully, sexual abuse allegations against parents do not often arise in the context of a divorce typical. However, when those scenarios do arise, they bring lawyers, litigants and judges alike in to unchartered territory where they sometimes have to sift through various accounts to get at the truth of the matter.

Twenty years ago, the Appellate Division succinctly described the dilemma Courts often face when dealing with sexual abuse allegations:

This case is an example of a tragic but recurring dilemma in certain family court cases involving allegations of child sexual abuse. On the one hand, there are clearly cases of imagined or even fabricated charges against a parent, especially when raised during the pendency of divorce proceedings. For a parent to stand accused of such an offense is devastating both to that individual, and to the child’s lifelong relationship with the parent. On the other hand, proof of such abuse, especially involving a very young child, is rarely clear, and the potential danger to a child from a reoccurrence, if the suspicions and accusations are well-founded, is enormous.

[P.T. v. M.S., 325 N.J. Super. 193, 198 (App. Div. 1999)].

In a subsequent case several years later, the Appellate Division in Segal v. Lynch, 413 N.J.Super. 171 (App. Div. 2010) even carved out a cause of action wherein one parent can sue the other for money damages on the grounds of parental alienation when one makes false sexual abuse allegations against the other:

[W]e are not blind to scenarios in which one parent intentionally or recklessly imbues a child with such calumnious accounts of the other parent, so wicked in their intent and so destructive in their effect, that the situation necessitates civil redress. For example, a case in which one parent falsely and intentionally accuses the other parent of sexually abusing the child is so despicable on its face and so destructive in its effect on the innocent parent that it cries out for compensation which is not available in the Family Part or even in the criminal courts. The same can be said of cases involving parental abduction, where one parent, unlawfully and without the knowledge or consent of the other parent, removes the child to a foreign jurisdiction with the intent of frustrating any lawful means for returning the kidnapped child to the aggrieved parent. In such cases, sound public policy demands that the aggrieved parent and, by extension the innocent abducted child, be given compensation beyond just reunification. Id. (emphasis added).

The recent published decision of E.S. v. H.A., A-3230-14T2 and A-3256-14T2, speaks to a different kind of scenario involving sexual abuse; one where the allegations have been sustained and the parent-child relationship hangs in the balance.

In E.S. the parties had a long history of contentious litigation, involving various domestic violence claims, motions, and the like. Ultimately, the Division of Child Permanency and Placement (DCPP) became involved with the family when allegations were made of sexual abuse against the father as to the parties’ child, Richard.

After various proceedings by the DCPP, at least some of the sexual abuse allegations against the father were sustained.  Thereafter, the mother moved for a suspension of the father’s parenting time.

Following a hearing, the trial court found, by clear and convincing evident, that the father had sexually abused Richard, granted the mother sole legal and physical custody of Richard and denied the father parenting time.  The resulting order further required the father to “comply with certain requirement prior to making any application for parenting time with his some”, including the following:

a.         Admission of wrongdoing;

b.         A psychosexual evaluation by a professional specializing in same; and

c.         Individual therapy.

The father’s subsequent appeal primarily concerned the above requirement that the be required to make an “admission of wrongdoing” prior to making an application for parenting time.  The father argued that requiring him to do so would violate the right against self-incrimination.

Indeed, the right against self-incrimination, although not protected by the New Jersey constitution, is deeply rooted in our jurisprudence and codified in N.J.S.A. 2A:84A-19, which states that every person in New Jersey “has a right to refuse to disclose in an action…any matter that will incriminate him or expose him to penalty…”

Both the United States Supreme Court and our New Jersey courts have consistently held that the state may not force an individual to choose between his or her Fifth Amendment right and another important interest because such choices are deemed to be inherently coercive. It does not matter whether the particular proceeding is itself a criminal prosecution. Rather, “the Fifth Amendment is violated ‘when a State compels testimony by threatening to inflict potent sanctions unless the constitutional privilege is surrendered.’” State v. P.Z., 152 N.J. 86, 106 (1997).

After a full examination of the case law and surrounding circumstances, the Appellate Division in E.S. reversed the trial court’s decision requiring the father to admit to the sexual abuse allegations prior to making an application for parenting time. Its reasoning was as follows:

Here, the November 2013 and January 2014 orders conditioned any future request by defendant for parenting time upon his admission of “wrongdoing,” which we presume, based on [the expert’s] testimony, means defendant must admit that he sexually abused Richard. Such a requirement compels defendant to waive his privilege against self-incrimination and violates his rights under the Fifth Amendment and our State Constitution.

The Appellate Division further vacated the remaining preconditions that the trial court imposed on the father “prior to any application for parenting time”, reasoning that, “imposition of these other preconditions violated defendant’s right to invoke the equitable powers of the Family Part to modify its order denying him any parenting time.” While the Appellate Division noted that these application may fail absent the father’s efforts to address the issues that the court saw as vital to the reintroduction of parenting time, it made clear that the court should not reach that conclusion in advance of such a request.

Cases involving sexual abuse pose special problems and considerations for our courts.  But this decision makes clear that it is important to note that our judiciary is required to preserve and protect the due process rights of everyone involved in the litigation.

If you have any questions or concerns regarding parental alienation or parental child abduction feel free to contact us 24 / 7.  We are always available at contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311)

USA / Texas: Interstate Jurisdiction Cases when a Parent Abducts their Child


Child Recovery Agents Parental Kidnapping

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Parental child abduction is the offense of a Parent wrongfully removing, retaining, detaining or concealing their child from the other parent. This often occurs when parents separate or divorce proceedings begin. The abducting parent may consensually remove or retain the child to gain an advantage in pending child-custody proceedings or because the parent fears losing the child in the divorce proceeding. Many times the abducting parent may refuse to return a child at the end of an approved visit or may flee with the child to prevent the other parent from seeing the child or in fear of domestic abuse.

Many abducting parents try to take the child across state lines (Interstate Jurisdiction issues) or out of the country to make sure that the child will never be found by the other parent. They would rather live a fugitive than lose their child.

Are there any laws to stop this child abduction to another state or country? The Uniform Child Abduction Prevention Act (UCAPA) provides remedies with valuable enforceable tools in deterring both domestic and international abductions by parents and unethical people or agents on their behalf. This Act empowers courts to impose measures designed to prevent child abduction both before and after a court has entered a custody decree. Unfortunately, the UCAPA has only been enacted in eleven states (Alabama, Colorado, Florida, Louisiana, Kansas, Mississippi, Nebraska, Nevada, South Dakota, Tennessee, and Utah) and District of Columbia, since its inception.

In Texas Interference with child custody is a felony!
Texas currently follows the Texas Penal Code 25:03, Interference with Child Custody:

Sec. 25.03. INTERFERENCE WITH CHILD CUSTODY. (a) A person commits an offense if the person takes or retains a child younger than 18 years of age:

(1) When the person knows that the person’s taking or retention violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody;

(2) when the person has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child’s custody has been filed, and takes the child out of the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, without the permission of the court and with the intent to deprive the court of authority over the child; or

(3) Outside of the United States with the intent to deprive a person entitled to possession of or access to the child of that possession or access and without the permission of that person.

(b) A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the child to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child.
(c) It is a defense to prosecution under Subsection (a) (2) that the actor returned the child to the geographic area of the counties composing the judicial district if the court is a district court or the county if the court is a statutory county court, within three days after the date of the commission of the offense.

(C-1) It is an affirmative defense to prosecution under Subsection (a) (3) that:

(1) The taking or retention of the child was pursuant to a valid order providing for possession of or access to the child; or

(2) notwithstanding any violation of a valid order providing for possession of or access to the child, the actor’s retention of the child was due only to circumstances beyond the actor’s control and the actor promptly provided notice or made reasonable attempts to provide notice of those circumstances to the other person entitled to possession of or access to the child.

(C-2) Subsection (a) (3) does not apply if, at the time of the offense, the person taking or retaining the child:

(1) Was entitled to possession of or access to the child; and

(2) Was fleeing the commission or attempted commission of family violence, as defined by Section 71.004, Family Code, against the child or the person.

(d) An offense under this section is a state jail felony: Minimum term: 180 days to Maximum Term of 2 years; fine up to $10,000.00

Hopefully, in the near future, more states will adopt the Uniform Child Abduction Prevention Act, but until then, if you think you have a problem with your ex trying to kidnap your child, find out what can be done in your state to stop this before it happens!

If you have any questions or concerns regarding an abducted child please feel free to contact us 24 / 7.  We are always available at contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311)

South Africa: South Africa to enforce new rules on travelling with kids


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From 1 October 2014, children travelling in and out of South Africa will be required to carry an unabridged birth certificate as well as a valid passport, under new regulations aimed at improving the safety of children.

The regulations came into effect at the end of May, but the Department of Home Affairs has delayed their implementation until 1 October, to make allowance for families who have already made plans for the upcoming school holidays.

The rules are aimed at improving the safety of children, including “their protection from child trafficking, abduction and kidnapping”, the department said on Tuesday.

The department has urged citizens and foreign nationals to apply for unabridged birth certificates, which reflect the particulars of both parents, in good time in order to avoid possible delays to their travel plans. It can take up to six to eight weeks for an unabridged birth certificate application to be processed.

Quick guide to the new requirements

  • When leaving South Africa with children, parents or guardians must be able to produce unabridged birth certificates reflecting the details of both parents, as well as a valid passport for each child.
  • This requirement applies even when both parents are travelling with their children.
  • It applies to foreigners and South Africans alike.
  • If children are travelling with a guardian, this adult is required to produce affidavits from both parents giving permission for the children to travel. They will also need copies of the passports of the parents, as well as the contact details of the parents.
  • If children are travelling with only one parent, they must produce an unabridged birth certificate as well as:
    • a court order granting full parental responsibilities and rights or legal guardianship in respect of the child, if he or she is the parent or legal guardian of the child;
    • an affidavit from the other parent granting permission for the child to leave the country;
    • a court order granting full parental responsibilities and rights or legal guardianship in respect of the child; and
    • if applicable, the death certificate of the other parent registered on the birth certificate.
  • When a child is travelling as an unaccompanied minor, he or she must be able to produce:
    • proof of consent (a letter or affidavit) from both his or her parents or legal guardians to travel in or out of the country; and
    • a letter from the person who will receive the child in South Africa, including that person’s full contact details and a copy of their passport or ID book. The letter must also include details about where the child will be staying, and full contact details of both parents or legal guardians.

 

If you have any questions or concerns regarding a child abducted to, or from South Africa please feel free to contact us 24 / 7.  We are always available at contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311)

USA, Japan: Japan signed abduction treaty but for ‘left-behind’ parents that doesn’t mean much


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James Cook is a Minnesota man in a custody battle with the Japanese mother of his children. (James Cook,/Courtesy of James Cook)

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James Cook wants his four children home in Minnesota. His estranged wife, Hitomi Arimitsu, says they want to stay with her in Japan. And so they have been going around in circles through the courts for almost three years.

If child custody battles are messy, expensive affairs when the parents live in the same country, they’re exponentially more so when the parents live in different countries and are fighting over where the children should live and which place should have jurisdiction.

Japan signed The Hague Abduction Convention, the treaty that governs international child abductions, in 2014 but is struggling to put its provisions into effect.

That is where the Cook family is caught.

“For three years of their lives, these kids have not had their dad. Kids need their dad, they need both their parents,” Cook said via Skype from his home in Minnesota. “I can’t describe to you the hell that this has been.”

Cook, who studied Japanese in college, and Arimitsu, a Japanese woman who attended a university in Minnesota, had lived in the United States for almost the whole time they had been together. But three years ago this week, with their marriage on the rocks, Cook agreed that Arimitsu could take their four children to Japan for the summer — with a notarized agreement that she would bring them back.

When that ended, they agreed that Arimitsu and the children would stay on a little longer, while Cook, who had lost his job, looked for work.

By the end of the year, Cook realized his family wasn’t coming back.

In the past two years, the pair has been going through acrimonious court battles in Osaka and in Minnesota, and each has won some and lost some rounds.

As is common in such cases, they have wildly different versions of events and focus on the rounds they’ve won.

Cook says an order in Minnesota last month, which found Arimitsu in contempt of court and upheld two orders from December that she return the four children to their father, should stand. In that case, the judge awarded Cook temporary sole legal and physical custody of the children.

But Arimitsu, through her lawyer Tomoko Kamikawa, said that because the Osaka High Court in February rejected Cook’s request to have the children returned, there is no valid return order under The Hague Convention. Cook has appealed this ruling to Japan’s Supreme Court.

The children do not want to return to the United States, Kamikawa said.

The crux of the problem, Cook and other “left-behind parents,” say, is that Japan — unlike other signatories — has no way of following through on its Hague commitments.

“Enforcement is one of the key problems,” said John Gomez, an American who heads the Kizuna Child-Parent Reunion group in Tokyo and is helping Cook. “Every country has to create implementation legislation to enforce their orders, but Japan basically cannot enforce their orders.”

The legislation that Japan passed to implement The Hague provision forbids the use of force, and stipulates that the children must be retrieved from the premises of the parent who has taken them. The “taking parent” must be present. The enforcement officers are basically bailiffs who are more used to repossessing washing machines than extracting children from emotionally charged situations.

This essentially means that enforcement involves an official at the gate calling for the children to come out, while the taking parent is inside with them.

“All of this was completely predictable,” said Colin Jones, a law professor at Doshisha University in Kyoto and an expert on child custody law in Japan. “Without dealing with enforcement methods, it was just a matter of time until a case like the Cook case happened.”

The U.S. government has expressed misgivings about Japan’s implementation of The Hague convention provisions. “The [State] Department is concerned about Japan’s ability to quickly and consistently enforce return orders,” it said in its 2017 annual report on international child abductions.

But the Japanese government says that it is making good progress.

“It’s been only three years since Japan entered into The Hague Convention,” said Hajime Ueda, director of The Hague Convention Division in the Foreign Ministry. “It takes time because every case is unique. From that point of view, we have been doing quite a good job.”

Eight children involved in five cases have been returned to the United States since Japan signed The Hague Convention, Ueda said.

The convention was a politically charged issue in Japan, with a substantial amount of opposition to signing it, so even becoming a signatory in 2014 was a major achievement. Experts note that it took other signatories some time to change domestic legislation to allow enforcement of The Hague Convention provisions; Germany, for instance, took about five years.

The U.S. Embassy in Tokyo is dealing with about 70 child abduction cases, 42 of them filed since Japan signed the convention, and 10 of those seeking the return of children to the United States.

The other cases just involve access — another thorny issue in Japan, where there is no concept of joint custody.

The prevailing wisdom in Japan says it is upsetting or disruptive for children to continue to see both parents after a marriage breaks down, so one parent — almost always the mother — gets full custody and the other parent usually has two hours’ access to the children each month.

“Visitation is the most problematic thing with Japan. A lot of cases about return orders are actually about access, about the noncustodial parent being able to maintain a relationship with their child,” said Jones of Doshisha University.

According to Gomez’s research, about 3 million children in Japan have lost access to one parent after divorce in the past 20 years – about 150,000 a year.

Children age out of the system at 16, so time is on the taking parent’s side, according to people involved in custody disputes.

And nothing will change for international custody cases until the domestic system that favors sole custody changes, experts say.

This is difficult because Japan has a family registry system, which operates as the foundation for all documentation. A person can be on only one family registry so after a divorce, children are usually removed from their father’s family registry and placed on their mother’s.

“The parent who becomes noncustodial loses all of their parental rights and effectively becomes a stranger to the child,” said Bruce Gherbetti, another “left-behind” parent who is advocating for change through the Kizuna group.

Until joint custody becomes commonplace in Japan, it will be difficult, if not impossible, to make it the norm in international cases, Gherbetti said.

For now, that leaves Cook, who has found work with a medical device company, sitting in Minnesota, having no contact with his children.

“I’m sad we are in this mess and I’m concerned about my children,” he said. “This is the heartbreak of being a ‘left behind.’ ”

An earlier version of this article misspelled the name of Hitomi Arimitsu. The story has been updated.

If you have any questions or concerns regarding a child abducted to, or from Japan please feel free to contact us 24 / 7.  We are always available at contact@abpworld.com or by calling our offices – +1 (805) CHILD-11 (+18052445311)