Legally Speaking by Cassandra Savoy, Esq. OP/ED
My daughter’s father is a registered sex offender. He raped someone that is in his immediate family. Will he able to get custody?
Usually when we use the term “custody”, we are talking about which parent is the residential parent, or the phrase which is peculiar to New Jersey: the “parent of primary residence.”
Public policy in New Jersey favors providing both parents equal chance to bond with their child and to have the love and affection of their child. New Jersey affords equal opportunity for Dad’s to have custody, and the privilege is not just limited to Moms; therefore, joint legal custody rather than sole legal custody is the preferred arrangement.
To make public policy real, New Jersey courts will have the child live with each parent on an equal basis where feasible. Most of the time “feasible” is dictated by the proximity of the parents and their work schedules. This means that if you live in East Orange and your son’s mother lives in Newark, you might be able to share your son’s time equally. Equally as important, is whether your work schedules accommodate the child’s needs. If, for example both have a regular 9 to 5 job and each of you can drop the child off at daycare by the start time and each of you can pick-up the child by the end time, equal parenting time might be feasible.
That having been said, the court always stands in the place of the parent. This means that the court must do what is in the child’s best interest regardless of what the parents, either of them, want. Before the court awards custody to either parent, the court will consider first and foremost what is in the child’s best interest.
As to the reader’s question, central to the best interest analysis is whether the child will be safe with the sex-offender parent. Usually, judges do not reject an application for anything out of hand. So, the court might consider whether Dad is a level 1, 2, or 3 sex offender. What exactly was the nature of the sexual offense? Was it actually a brutal rape making Dad a Level 3 sex offender? Was it more of a grouping making Dad a Level 1 sex offender?
How old was Dad at the time of the offense? What was the age of the victim? Was the victim (she or he) 10 years old or 30 years old? When did the offence occur? Last year or twenty years ago? Has he had therapy? How long ago? What is the therapist’s diagnosis? Prognosis?
What is the nature of the child’s relationship with Dad? What are the current circumstances that give rise to the question? Did Mom and Dad meet ten years after the sexual assault occurred and did the child reside with mom and dad for ten years, before the breakup giving rise to the current question of who gets custody? Is it a fact that Dad has not seen daughter for several years?
Where does Dad live? In an apartment? A single-family house? A rooming house? Does Dad live alone or with others? His parents? Significant other? Without answers to these and probably many other questions, it is impossible to give an opinion as to how the court would decide. But!
Custody is one thing. Visitation is quite something else. While the court may not give Dad custody, the court may look for ways for the child and dad to bond and spend time with each other while ensuring the child’s safety. The court might conclude that spending a night with Dad who viciously raped a child of about her age two years ago is not a good idea so all because there is nothing to give the court confidence that the child will be safe. However, the court might look for ways for award parenting time where dad groped a woman of 30 fifteen years ago and is a Level 1 sex offender. Judges make reasoned decisions based on proven facts!
If the court were inclined to award parenting time, one of the resources the court often turns to is supervised visitation. There are agencies who for a fee will offer a comfortable place and supervise the visitation. Usually, these agencies have a number of rooms that are set up like living rooms, or family rooms. They have toys, and books and you can bring snacks or games, or puzzles or other age-appropriate things to do with your child.
Some of the agencies have out-of-doors areas where parent and child can interact. It is significant to note that supervised means supervised. In most of the agencies, every single inch of the place is visible or camera, and the cameras record for the record.
Where a parent is a sex offender, having parenting time in a very structured, monitored by camera situation may offer the best opportunity to get the court to award parenting time at all. The poor man’s option is trying to find a trusted relative who can monitor, and I do mean monitor-parenting. Safety and Sex-offender are tough to reconcile, but maybe.
