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.
Allison C. Williams is a matrimonial and family law attorney serving Short Hills New Jersey. Her practice places an emphasis on complex child welfare matters. www.familylawyersnewjersey.com