January 31, 2008

Appellate Court Expands Parents Rights in DYFS vs. GM and MM

by W. Timothy Howes, Esq.

Howes & Howes always keep their eyes open for new developments in the law, especially in their areas of expertise.  On January 23, 2008, the Appellate Division decided the case of DYFS vs. GM, in which it expanded procedural rights for parents in DYFS-related litigation.  GM wil protect parents who lose custody of a child to an ex-spouse or other natural parent due to DYFS litigation.

One relatively common fact pattern in DYFS litigation is the case in which DYFS receives a complaint about neglect or abuse of children of parents who do not live together.  Sometimes the parents have come to their own agreement about custody.  Sometimes custody has been decided in another court.  When the allegations are severe enough, removes the children from one parent and places them with the non-custodial parent.  In such a case, DYFS obtains an order of protection from the Superior Court.

During the litigation, the parent has to participate in services designed to fix the problem.  Those services include mental health counseling, parenting classes, drug programs etc.  Once the parent completes the services, the court decides whether the initial problem has been fixed, and whether it is safe for the children to return home.

What has been happening around the state is that DYFS has not been returning these children home.  They have been dismissing the litigation and instructing the parents to settle it among themselves or to bring other litigation.  How fair is that?  A parent diligently completes counseling or drug rehab in the expectation that their children will come home, but they don’t get their children back.  A parent does everything that DYFS and the court ask, but does not get their children back.

Not any more.  The Appellate Division announced in this decision a new rule.  The parent is entitled to a full, evidentiary hearing before a child protective case is dismissed with a change in original custody arrangement.  In such a hearing, the court must take evidence and consider the best interests of the children before making a final determination.  This decision is a victory for parents rights.  If you feel that this new rule would help you or help your case, then you should contact Howes & Howes.

This article can be found on the web at: http://www.njcases.com/104/

If you need legal help in matters similar to those described in this document, call Howes & Howes for a prompt, confidential consultation.

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