If you suspect your child has been abused by the other parent, calling Child Protective Services (CPS) is a crucial step to take. However, in cases where a divorce is underway, it’s important to consider the impact a CPS investigation can have on the divorce process – including prolonging the process and changing child custody arrangements. Union, New Jersey family lawyer Allison Williams discusses what there is to know about CPS – including how to request an investigation, the process, and how to appeal an investigation – and its potential impact on divorce cases.
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Divorce Magazine Podcast: Union, New Jersey Family Lawyer Allison Williams on the Impact of Child Protective Services Investigations on Divorce Cases
Hosted by: Diana Shepherd, Editorial Director, Divorce Magazine
Guest speaker: Allison Williams is a Union, New Jersey family lawyer who is certified by the Supreme Court of New Jersey as a matrimonial law attorney. Allison is the founder of the Williams Law Group – the only New Jersey law firm that is both founded by an AAML Fellow as well as focused on the issue of child maltreatment, abuse and neglect – which has offices in Union and Wall Township. Named as a Rising Star Attorney as well as a Super Lawyer, she is dedicated to representing individuals in family law matters, particularly when child abuse, neglect, or maltreatment is taking place. To learn more about Allison and her firm, visit www.newjerseydyfsdefense.com.
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What constitutes child abuse and what proof is required to establish that abuse has actually taken place?
Williams: In New Jersey, child abuse and neglect is defined far more broadly than most people would imagine. It's not simply those egregious acts that come to mind when a person says child abuse. It's not just beatings, burnings, sexual abuse, or abandonment. Those things are certainly included, but there are far more.
Neglect actually includes the definition of failing to exercise the minimum degree of care in providing for a child. That includes reckless disregard of known risks. When we think about neglect, we think about making mistakes, but in New Jersey, to be actionable as child neglect, it has to be something so severe that we can say the parent was reckless.
Child abuse, on the other hand, includes things such as inflicting injuries but also allowing someone to inflict injuries on the child. It's cases where the child wouldn’t have had an injury if it were not for some act or omission of the parent. The parent has the burden in those cases to prove that he or she is not responsible for the injuries, even if medical professionals can't say exactly what caused the injuries.
What's the role of the Child Protection Services agency, known in New Jersey as the Decision of Child Protection and Permanency (DCP&P), in a child abuse proceeding?
In a child abuse proceeding, the role of the agency remains twofold. First, they have to make a reasonable effort to prevent the removal of a child from the child's parent. Or, if a child has been removed, they have to make reasonable efforts to reunify the child with his or her parents.
Once the case is in court, the agency has to prove a violation of either Title 9, which is the abuse and neglect statute, or Title 30, which is the parental unfitness or termination of parental rights guardianship statute. It's not sufficient for the agency to simply file an action in court noting that they have concerns or that they believe a parent is not acting appropriately. They have to have concerns that rise to the level of either child abuse and neglect, which is defined as actual harm, imminent risk of harm or substantial risk of harm, or parental unfitness that would warrant some type of compulsory court-ordered services for the family that would be imposed by a judge.
You've said that parents quite justifiably fear the DCP&P. Can you tell us why?
I can tell you that the agency has enormous amounts of power. That's the reason why parents understandably fear the agency. An investigator gets to come to the home and gets to write down everything that he or she observes and everything that he or she is told from the parents and the children. As a result, that then becomes the evidence that's used against the parent in court.
I can tell you from my own experience, a remarkably high number of cases involve caseworkers who omit information inadvertently or otherwise, and sometimes they distort information, misconstrue what's said to them, or simply fabricate things. As a result, that evidence then becomes used against somebody in court. However, because the law in New Jersey is that the evidence of these agencies is entitled to a high degree of reliability, it becomes very difficult for you to challenges that evidence when you get to court. Rarely do judges have the time or the interest in debunking the presumption of the evidence in these cases being reliable. Agency workers’ words are given an enormous amount of weight.
If a child has been taken from the parent on an emergency removal, the parent is already behind the eight ball when appearing in court, so you have kind of a double whammy. You've got your child out of your custody, so the court already presumes that something severe had to have happened to warrant the child being removed. Then you have the “evidence,” which is somebody else's say as to what took place that a court doesn’t necessarily want to hear was not accurate.
What typically leads to Child Protective Services (CPS) investigations during pending divorce cases?
Frequently, parents that are going through a divorce develop legitimate concerns about the care of their child in the custody of the other parent. These legitimate concerns may involve substance abuse, mental health concerns, or general neglect – that the other parent was not necessarily someone that was in a care-giving role as much as you may have been.
When those concerns are developed and the agency is called, the agency has a duty to investigate. That's not altered by the status of the marriage, so they don’t have any lesser duty to investigate simply because the parents are going through a divorce. That said, parties sometimes try to use the agency to concoct false claims against their spouse, to get a leg up in the custody and parenting-time dispute. The agency now has a four-tiered administrative finding system where the outcome can often result in something written that can be used in the course of the custody case.
While there is inherently distrust that comes with the parties going through a divorce, the elevation of normal concerns to the degree of child abuse and neglect in the course of a divorce is something that judges often disfavor and, of course, the agency is concerned about as well.
What are some of the reasons or considerations for why you would advise a parent to call CPS during a divorce action?
If a parent is concerned about child abuse and neglect, the call should be made. The call should precede any type of court action because some judges in matrimonial cases will discount the concerns raised in the divorce because of the contentious nature of the litigation. Once the agency starts its investigation, it's easier to secure a protective order or restraint pending the investigation, and as a result, depending on the severity of what's alleged, the parent may be able to simply await the agency filing in court to save time and money but secure even greater child protection than if they had simply gone to the divorce judge.
Aside from actually planning to fabricate evidence for the agency, are there any reasons why you would advise a parent not to call Child Protective Services during a divorce action?
Absolutely. If a parent has concerns that those allegations veer more towards negligence than recklessness or the concerns are of such nature that mutually agreeable protective restraints can be agreed upon between the parties to ensure the child's safety, that often is a superior route to involving the agency. Once the agency gets the phone call, there is no exit strategy. The agency is required by law to investigate every call no matter how severe or benign the claim is. They leave only when they have had their concern resolved.
The fact that one parent may have made a call to the agency and then later rethought his or her position and said, “You know, I don’t think I want to go down that road anymore,” that's not going to change the agency's duty to follow its investigation through to make sure that there's no concern. That often will prolong the divorce, and it will increase tension between the parties and anxiety for both the parents and the children. It accelerates emotional distress, and it certainly increases the cost and interrupts settlement efforts. It's not always the best course of action for the family to have the agency involved if you can deal with the concerns some other way.
Once a child abuse investigation is underway, it cannot be called off?
That's absolutely true. Once the agency gets the phone call, there are a certain number of minimum steps that are required. The initial investigation requires contact with the child. The agency has to see the child, speak to children who are verbal and observe non-verbal children. It further requires that there be a discussion with caregivers in the home and any adults in the home that are over the age of 18. Finally, the accused parent, whoever is purported to have done the act, must also be interviewed.
If the information provided is proven accurate, that it would constitute child abuse and neglect, the investigation then proceeds to a formal investigation, and that includes contact with the pediatrician, school personnel, and any collateral sources that the parents can offer that can confirm or refute the allegations. Here, the agency is required to speak to at least two sources that can exculpate the accused parent.
The steps of the initial investigation are mandatory. They cannot be deviated from. But beyond that, they have a lot more wiggle room in order to determine whether or not they feel the risk is so substantial that it constitutes child abuse. Unfortunately, a parent or third party's retaliatory call to the agency can't simply be upended by mere recantation of the allegation. Once the agency's involved, they have to do certain things to make sure that they can say, to a reasonable degree of certainty, there is no concern for child safety and can leave the family.
Who typically requests the investigation? Is it one parent, his or her lawyer, or even a third party such as someone at the child's school?
That varies greatly from case to case. Under state law, anyone who believes a child may be abused is required by law to report. The statute does not address the issue of neglect, even though when we talk about child abuse, we often include child abuse and neglect. Typically, those calls come from third parties such as school personnel, mental health professionals, medical professionals, and neighbors. In addition, relatives can call when they feel there's something going on in a family and they can't persuade their child, cousin, or whomever it is to address the issues that need to be addressed. But, of course, you have parents calling on each other on a regular basis.
How long does a typical investigation take?
The agency has 60 days to complete its investigation. However, it may apply to the local office manager for an extension of that time period upon good cause shown. This is often done in cases where the parents have consented to do psychological evaluations or substance-abuse evaluations with a division contracted provider, because those evaluations have to be requested and paid for by the agency first and then, of course, you have to deal with the availability of the person who's doing the evaluation.
Can you appeal a decision that's been made during a child abuse investigation?
Yes, there are actually two different kinds of appeals that can be pursued from any agency determination of child abuse and neglect, depending on the outcome of the investigation. The worst outcome is when the allegation is substantiated. In that event, the parent has 20 days from the date they received the letter of written notification to request a hearing before the office of administrative law. This appeal involves a trial before an administrative law judge where you get to call witnesses and it's just like a court trial.
The only difference is that it's a different type of judge; it's an administrative law judge instead of a superior court judge. There, you get to make a full factual record. If the outcome of the agency's investigation is established – meaning the agency finds that there was child abuse but it's not so severe that they think the outcome should be substantiated, which is the more severe finding – then you still have the right to appeal.
Unfortunately, you don’t get to have a trial. The way that you appeal is you write to the appellant division, you file a notice of appeal there, and you have a right to pursue that by virtue of arguing that the legal conclusion reached by the agency was not accurate. But that proceeds any type of appeal from any final judgment that's entered.
How does a Child Protective Services referral during a pending divorce impact the custody determination?
The referral can have a very serious adverse impact on custody. Agency investigations always generate records. Anytime an agency employee speaks to someone about the claims that lead to the agency being contacted, the agency personnel must document that. Who said what to whom, where, and what was done about it? Also, the agency personnel will include things such as the perceptions of the parties, their candor, and any behavior that they saw during the course of speaking with them.
That information then becomes evidence. Custody evaluators almost always want to see the agency record generated because they want to know if someone is misrepresenting information for purposes of their divorce or if they're simply trying to convey one parent more negatively than the other for purposes of custody.
If a party called the CPS agency on the other parent, an evaluator may see this as a sign of vindictiveness or, worse, parental alienation. If allegations of child abuse and neglect are validated by the agency, the parent who's accused may be restricted from having unfettered access during the pendency of the divorce. You can have one parent who could have served as the primary parent but is now having such limited access to the child because of alleged concerns for child abuse that that parent has a lesser relationship with the child by the time the custody evaluator meets with them. That, of course, will prejudice their findings. They'll look to the parent and say, “Well, you don’t have as strong a bond as perhaps the other parent does because that person was kept away.”
What can a parent who has lost custody or unsupervised visitation following a child abuse investigation do to work towards regaining custody or unsupervised visitation?
There are several steps that can be employed to regain custody after a CPS investigation has upended that access. First, if there's a concern that led to a change in custody and that concern is valid. The parent's best course of action is to get help. Whatever the issue is, if it's substance abuse, if it's mental health, showing that you're going to take the initiative to address the issue when something as serious as custody of your child is at issue, that you're going to act in the child's best interest, is going to go very far to impress the court. A parent with a substance abuse problem or even a mental health client is far more likely to regain custody if they acknowledge the problem and deal with it.
Second, there is some visceral reaction that parents often have that they need to start using everything that they have available to them to attack the other parent. Reciprocity and tattling on the parent who is not at issue in a child abuse investigation is rarely effective, very rarely.
If there are real issues, certainly the parent should raise them. But when you're accused of child abuse, you begin by countering that the targeted parent is not the real problem – it really is the other parent. The other parent has a litany of issues; the agency may actually come after both parents. That's an area the child may end up in foster care; the child could be taken from both parents and placed with a non-relative or with a relative.
Even if the child remains in the care of the parent who is accused of abuse by the parent who was initially investigated, you could have concerns that the agency is going to stick around for a much longer time now because they have concerns about both parents. It rarely does the family a service to start throwing allegations of child abuse back and forth.
Can calls to CPS during a divorce action result in sanctions against the accusing party if their allegations are found to be false, perhaps motivated by anger or spite?
It certainly is possible, but it's not likely. Judges have become very accustom to matrimonial litigants telling false tales about each other. Without a testimonial hearing, discovery from the agency and trial on that limited issue, whether or not the accusation is true or false, a judge is really ill suited to determine whether the accusations are false, simply because the agency does not validate them as child abuse.
What more often occurs is the agency finds some merit to the claim asserted but they may have a different perspective on it than the parent who made the allegation in the first place. The agency may assert that there's no child abuse here but there are some concerns, and maybe those concerns don’t warrant the agency taking the child away from the parent. But, perhaps they would make recommendations to get some type of services, counseling, parenting classes, that sort of thing. In which case, the judge is going to say that the accusation wasn’t false, it just wasn’t child abuse, and there definitely is a distinction.
If CPS decides to initiate a separate court proceeding, what happens to the divorce litigation? Is it stayed or does it continue?
Typically, the filing by the CPS of a child abuse complaint serves to remove all of the child-related issues from the matrimonial court to the child abuse and neglect proceeding. In New Jersey, there is this general rule that we should have one judge per family. However, that rarely happens. In most counties across the state, you're going to have one judge to handle the divorce and a different judge to handle the child abuse case.
What you need to think about is once at least one of the parents is reunified, the child abuse judge is most likely going to direct that all custody and parenting time issues go back to the divorce. The only issue that the judge is going to be looking at, if the child abuse is going on at that point, is whether the parent who still doesn’t have access is going to be liberally allowed to be reunified with the child – at which point, the parents can go fight it out in matrimonial court as to who should be the primary parent. Because there really was no primary parent when the matter started, it really started at a time when the parents were together, even though they were going through a divorce.
If a parent believes that their parent has been neglected or abused by the other parent but CPS does not substantiate the allegations, what can the parent do to protect their child?
In New Jersey, parents are not limited by the findings of the division of child protection and permanency. If a parent believes that their parent has been abused or neglected, the parent can file an action in Superior Court and seek a protective order, regardless of what the agency does. It's not uncommon that judges will enter the order restricting parenting time or requiring that it be supervised pending the outcome of the division's investigation.
As soon as the claim is made, the agency starts to investigate and the parent goes to court and ultimately gets a protective order. Courts in New Jersey are not allowed to abdicate their decision-making to the agency. If a judge says at the outset of an investigation, “Let's see what CPS has to say, and then I'll move forward, or perhaps not, depending on the outcome,” that does not mean that once the outcome comes back that the court should simply rubber stamp that.
What we often see, however, is that judges are typically inclined to simply ratify whatever the agency says, figuring the agency had all of that boots-on-the-ground type of information, they spoke to everybody, they got a sense of what there was. If the agency entrusted to do child abuse investigation doesn’t find child abuse, what's the likelihood that I'm going to find something different? What we have to do is an uphill battle, is to educate the court that the case law is very clear that judges have to make independent findings of fact and conclusions of law separate and apart from whatever third party – whether it be an expert or the child abuse agency – has to say.
In addition, parents can also elect to file their own complaint under Title 9, the child abuse and neglect law. They can allege child abuse and neglect in that complaint. If that happens, the parent will receive the same presumptions and evidence rules and procedural advantages that CPS would have gotten had it chosen to go to court.
Can a complaint of abuse or neglect be made against a parent's new live-in boyfriend or girlfriend? If so, how can that affect custody as well as the family's living arrangements?
Allegations of child abuse or neglect can be made against any person who has access to a child. Whenever someone is concerned that the paramour of their former spouse could be harming their child or placing that child at substantial risk of harm, those allegations are to be considered like any other. They should be referred to the agency if the concerns are significant. When a person seeks a restraint, however, against the paramour of their former spouse, if the Court orders that restraint, then the parent seeking custody is going to have the same duty to allay all of those concerns to their paramour as they would be required to do if they were the person accused of child abuse. That often prevents the relationship between the now divorced party and their significant other from taking the normal course.
In New Jersey, are there any other alternatives to protecting a child from abuse or neglect without having to contact a division of Children Protection and Permanency?
The law requires a report to the child abuse agency any time a person has reason to believe that the child has been abused. The plain language of the statute does not address neglect, however. Generally, what I tell people is that you should consider the impact of the conduct at issue on the child when you're categorizing something as child abuse. Most cases brought by CPS in court address neglect, and over 80% of the litigated cases where the agency takes a parent to court have some form of growth-neglect claim. Things such as substance abuse, domestic violence, general parental unfitness – all of those issues are what we typically see when you're in court with them.
When you think about whether or not you as an individual should be raising those concerns with CPS, you should be thinking about what CPS is likely to find when they do their investigations. Are they likely to say the behavior is simply negligent – i.e., the parent could have done a better job but did not do something horrid to the child? Or is the behavior to the point of recklessness – i.e., is this something that any reasonable person would know or should have known would harm a child?
And when we look at that differentiation, it's sometimes difficult to tell because case law is very discrepant in terms of defining what circumstances are and are not child abuse and neglect. If there's a question, the safest course of action is always to file an application in Superior Court to protect the child and allow the court to make the referral to CPS. If the court chooses not to make the referral, then at least the parent has done everything that he or she needs to do to make sure that the child is safe. If the court does make the referral, then you have the dual protection: you have the court overseeing the matter and you have the Child Protective Services agency involved.