Divorce FAQ's
1. What is an abuse and neglect case?
This is when DYFS has filed a court case against you because it believes that you have abused or neglected your child. DYFS cases are very common in divorce cases. In many cases a vindictive spouse will file a frivolous DYFS case just to annoy their ex. Moreover, some spouses believe that they will obtain an advantage in their divorce case if there is a pending DYFS case filed. In the more severe abuse and neglect cases DYFS usually wants to place or keep your child in foster care or with a relative until it fees that the child can return safely to your home. DYFS must demonstrate to the court that you have abused and/or neglected your child.
2. How will the court decide if I have abused or neglected my child?
The court will grant you a full hearing. At this hearing the court will determine whether you have abused or neglected your child if you have seriously harmed or created a risk of harm for your child.
3. How does a DYFS case start?
DYFS will file a complaint and an order to show cause with the family court if it believes that you have abused or neglected your child. The order to show cause will also contain affidavits from varies parties who will verify the allegations of abuse and neglect.
4. Who are the “players” in a DYFS case?
Your child will be appointed a lawyer called a law guardian. The Attorney General will represent DYFS. You must obtain legal counsel to represent you if a DYFS case is filed against you.
5. What is the court procedure after DYFS files a case against me?
Once a DYFS case is filed then a series of court hearings will be held:
A. Preliminary hearing. This is the first hearing in the case. The court will decide whether or not DYFS has shown good reasons to continue the DYFS case, and whether or not your child must remain in placement while the case is pending.
B. Fact-finding hearing. At this hearing, DYFS will try to prove to the court that you have abused or neglected your child. You have the right to present your view of the case. Moreover, you will have the opportunity to defense yourself against the charges.
C. Dispositional Hearing. If the court finds that you have abused or neglected your child, then the court must hold a full dispositional hearing. At this hearing the court must decide whether your child can come home, and whether you need to continue to receive services to assist you to become a better parent.
D. Review hearing. After the dispositional hearing, the court will schedule your case for a review hearing. At a review hearing the court will check on how you and your child are doing. In many cases the court will schedule review hearings at two to three month intervals. In some DYFS cases review hearings can continue until the child is emancipated. Once DYFS gets in your life, they are very difficult to remove them. I have been involved in DYFS cases wherein the review hearings have spanned more than five years.
E. Permanency hearing. If the child enters foster care or another out-of-home placement for more than 12 months, then the court is required to hold a permanency hearing. At the permanency hearing, DYFS will present a place for a permanent living situation for your child. The court will then decide whether or not to approve that placement.
6. What are some basic information about DYFS cases?
DYFS will file an abuse or neglect case when it believes that you have abused or neglected your child. In the divorce context, if DYFS believes that there is an abuse or neglect case, then it will usually request that the court order counseling for the quarreling couple. In the more extreme cases, DYFS often wants to place or keep your child in foster care or another out‑of‑home placement. In some scenarios, DYFS does not want to remove your child, but instead wants the court to allow DYFS to check on you and your child and to order you to participate in services that DYFS believes you need.
At the commencement of the case, the court must decide whether DYFS has shown adequate reasons to continue its case. Eventually, the court must decide whether you have abused or neglected your child. You have a right to a hearing where all of the parties will be able to present their cases to the court. In some instances, you may decide to stipulate to or admit to some of DYFS’ claims instead of challenging them. In that case, the court will then find that you abused or neglected your child without a hearing.
If the court finds that you did not abuse or neglect your child, then your child will return home. If the court finds that you did abuse or neglect your child, then the court must decide what should happen next. Generally, you will be required to participate in services to help you correct the problems that DYFS believes prevent you from adequately taking care of your child. Your child will stay in foster care or with a family member until the court decides your child can return home safely. If your child is at home, then the court may still order you to participate in services to address your parenting skills.
7. What is the legal definition of abuse and neglect?
The law says that a child has been abused or neglected if his or her parent, guardian, or caretaker has done any of the following things:
a. Caused very serious physical or emotional harm to the child or allowed someone else to harm the child;
b. Created a risk that the child will be physically harmed, or allowed someone else to create a risk of harm to the child;
c. Sexually abused the child or allowed someone else to sexually abuse the child;
d. Harmed or created a risk of harm to the child by failing to take proper care of him or her;
e. Used excessive physical punishment on the child; or
f. Abandoned the child.
8. How does a judge determine whether a parent has abused or neglected his child?
A court’s decision about whether a parent has abused or neglected his or her child depends on the individual facts of each case. The findings of child abuse and neglect are often based on physical injuries caused a child. Moreover, the findings can also be based on severe emotional harm. Even if you have not harmed your child, the court still might find that you have abused or neglected your child because the child may be exposed to a risk of serious harm in your care.
The court can decide that drug or alcohol abuse by a parent constitutes neglect if the parent cannot provide proper care for the child. Many courts have found child neglect when parents have failed to protect a child from someone they should have known would harm the child. Leaving children alone can also be considered child neglect.
9. How does DYFS starts an abuse or neglect case?
When DYFS files a child abuse or neglect case against you, you will receive a copy of court papers called an order to show cause and a complaint. An order to show cause is a special court order that requires you to appear in court on a specific date for the court to consider your case. In the complaint, DYFS also explains how it believes that you have abused or neglected your child. DYFS must also show why it needs to remove your child from your home. Alternatively, if DYFS only wants to check on your family, it must show why that is necessary. In many situations, when DYFS files the case, it has already removed the child on an emergency basis and DYFS is asking the court to keep the child in foster care.
10. Is a DYFS case also a criminal case?
No. A DYFS case is not a criminal case. It is a civil action. You cannot be put in jail or obtain a criminal record if you lose a DYFS case.
Nonetheless, be forewarned that in some DYFS cases, the prosecutor’s office may file a separate criminal case against you if the level of abuse is severe and physical abuse is also present. If a criminal case is filed against you, or if the prosecutor’s office is investigating you, then it is imperative that you obtain legal representation
The events that happen in criminal and civil child abuse cases can affect each other. There is often an interplay between the results of criminal abuse case and a civil DYFS case. For example, if you admit that you harmed your child in your civil case this can also affect your criminal case. Moreover, by pleading guilty to abusing a child in the criminal case this event can also affect your civil DYFS case. Additionally, the danger of losing your rights to your child will substantially increase.
11. Can the court terminate my parental rights in a DYFS case?
The court cannot terminate your parental rights in a DYFS case However, if DYFS removes your child, then there may be serious consequences. DYFS is required to file another type of case to terminate your parental rights forever if your child is in foster care for 15 months. This type of case is called a Termination Case. There are three exceptions to this rule:
a. Your child is living with a relative who can care for your child permanently;
b. DYFS shows that termination of parental rights is not in your child’s best interest; or
c. DYFS has not given you the help that it was supposed to provide.
In some cases, DYFS may file a case to terminate your parental rights even sooner than 15 months. You must begin immediately to do whatever you need to do to get your child back home.
12. What happens at a DYFS court hearing?
The hearings in your abuse or neglect case will take place in open court. The court will make decisions and issue court orders about what must be done. The court may order you to get a psychological evaluation. Moreover, the court many order DYFS to provide counseling for you. The court is fair and it requires that both you and DYFS must follow the court orders. If you do not appear in court when ordered to be there, or if you fail to comply with an order of the court, then you could be held in contempt of court. It is not a smart idea to be in contempt. Many courts are personally insulted if you do not comply with their orders. You could then face a penalty, including the possibility of being arrested. Moreover, if you do not appear in court, the court may enter a default against you. This means that you will not be permitted to present your side of the case to the court.
At the court hearings, you will have the opportunity to tell your side of the story, defend yourself, assert your rights, and ask the judge to order things that you want. DYFS can also recommend to the court that your child should be removed from you. In the divorce context, DYFS usually only seeks to have the court order that the parties receive counseling services. If it is an extreme case, only then will DYFS seek to have the children transferred to the custody of other family members. The court can also make recommendations about where your child should be placed if he or she is removed from you, when you should visit your child, and what you need to do to get your child back. Your child’s law guardian can either agree with DYFS or make different recommendations. You have the right to object to these recommendations and to tell the judge what you think should happen.
Your child’s foster parents or other caretakers have the right to attend all of the court hearings. However, they are not parties in abuse or neglect cases and their participation at hearings is limited to giving the court information related to the case.
13. What happens at my first DYFS hearing?
Your first DYFS hearing is called your preliminary hearing. You are only entitled to a brief first hearing. The preliminary hearing will happen either when DYFS files its case against you or soon after the case has been filed. At the preliminary hearing, the court will decide whether or not DYFS has stated adequate reasons to continue its case against you. A DYFS case is a very emotionally draining process. If the court believes that the DYFS case is weak, then some courts will dismiss it. If the more serious cases, if DYFS has removed or seeks to remove your child, the court must decide whether or not your child should be in placement while your case is going on.
When DYFS filed this case, you should have received an order to show cause telling you to come to court on a specific date. Many parents have their preliminary hearing on that date. If DYFS removed your child on an emergency basis, without going to court first, DYFS must then file a complaint the next business day. If you go to court then, you can have a preliminary hearing at that time. If you were not present when the court signed DYFS’ order to show cause to remove your child, then you can request a hearing and have one within three days of your request.
At the preliminary hearing, the DYFS lawyer will try to convince the court that your child should be removed from you. Your lawyer can ask the judge to let your child stay with you or return your child immediately, if that is what you want. Your child’s law guardian will also participate in the hearing.
Sometimes, you may be able to convince the court to allow your child to stay with you while your case is going through the court process. You can discuss with your lawyer and your DYFS worker the possibility of arranging for supervision or services that might allow you to keep your child at home. In some cases a relative could live with you to supervise your contact with your child. In some cases DYFS might consent to your child staying with you if you have a home health aide or intensive in‑home counseling. If DYFS or the law guardian suggests other arrangements that they think would make your child safe in your care, you should try to go along with their plan, if possible.
14. Can I obtain information from DYFS about the case that substantiates their charges?
After your first appearance in court, there will be a discovery period. Basically the discovery period allows all sides to gather information about the case and get information from each other. Your DYFS worker will continue to investigate and evaluate you, your home, and the facts in your case. Your DYFS worker and the law guardian or investigator will also visit your child to see how he or she is doing. Your lawyer is entitled to look at the DYFS file on you and your family.
15. What happens at my Fact-finding hearing?
After the discovery is completed, the court will then have to decide whether or not you abused or neglected your child. You have the right to a fact‑finding hearing. At this hearing, DYFS will then try to prove that its claims against you are true. Basically a fact-finding hearing is a trial. DYFS will try to prove that you abused and neglected your child. Meanwhile, you and your lawyer have the right to present your defense, and to prove that DYFS’ version of the events are exaggerated and false.
The DYFS lawyer will present documents and witnesses to try to prove that the allegations in the complaint are true. Meanwhile, your lawyer and the law guardian will have an opportunity to argue, where appropriate, that DYFS’ documents should not be part of the case. Your lawyer and the law guardian will also be able to challenge what DYFS’ witnesses say by cross‑examining them.
Thereafter, your lawyer will be able to present documents and witnesses on your behalf. DYFS and the law guardian will also have an opportunity to object to what you presented and to cross‑examine your witnesses. The law guardian will also have an opportunity to present documents and witnesses, and DYFS’ lawyer and your lawyer will have a chance to object and cross‑examine.
Preparing for your fact-finding hearing with your lawyer is very important. You must be sure that your lawyer knows all of the important information about DYFS’ claims about you.
The court will consider all of the evidence and legal arguments made at the hearing and decide whether you have abused or neglected your child. The court must explain their decision in an oral or written opinion. If the court decides that you did not abuse or neglect your child, then your child will be returned to you, and your case will be closed. If the court decides that you did abuse or neglect your child, the court will hold another hearing, called a dispositional hearing, to decide what should happen next.
16. Can I avoid having a Fact-finding hearing and instead try to reach some type of settlement with DYFS?
You can stipulate to DYFS’ claims instead of having a hearing. If you stipulate to any of DYFS’ claims, then you agree that you will not argue that they are untrue. You also give up your right to a fact‑finding hearing in this case. Instead, the judge will rely on your stipulation and make a finding that you abused or neglected your child.
Many people just want to get the DYFS case over with. Therefore, they may consider reaching some type of stipulation of settlement with DYFS. Be very careful before you consider reaching any type of stipulation of settlement. I admire all of the good work that DYFS does. However, in my experience the DYFS workers can be “not exactly forthright.” The decision whether to stipulate to claims against you is a very important decision. You should discuss it carefully with your lawyer. If you stipulate that you have abused or neglected your child, DYFS can keep your child in foster care until the court decides that it is safe for your child to live with you. The court can also order you to participate in services.
If there are statements in DYFS’ complaint that are not true, then you have a right to make DYFS present evidence to prove that the claims are true, instead of signing a stipulation. Before you agree to stipulate, you or your lawyer should discuss with DYFS the specific facts to which you will stipulate. Moreover, you should also find out what DYFS wants you to do to get your child back if you stipulate. Once again, be very careful if you agree to any type of stipulated settlement with DYFS. DYFS does more good than harm. However, in many cases DYFS can use a stipulated settlement to haunt you for the rest of your life.
17. What happens at a Dispositional hearing?
If the court finds that you abused or neglected your child, either after a hearing or a stipulation, then the court must then hold a dispositional hearing to decide what should happen next. This hearing often takes place immediately after the fact-‘finding hearing. The court will generally order you to take certain steps, such as participating in counseling or other treatment, to address the problems it believes you have. The court will also decide whether or not your child can be returned home while you are participating in services or whether you must do certain things before you can be reunified with your child. At this hearing, all parties may present additional evidence.
18. Can I appeal my DYFS case if I should lose?
If you disagree with the court’s decision following the dispositional hearing, then you have a right to appeal it. DYFS and the law guardian also have the right to appeal if they disagree with the decision. If you choose to appeal the decision, your lawyer should start the appeal process for you. The time limit for filing an appeal is 45 days from the date the court signs the order. If the case is appealed, the appellate court will review the record of the hearing and decide whether the trial judge decided the case correctly.
19. What are Review hearings?
After your dispositional hearing, then the court will schedule your case for one or more review hearings to check on how you and your child are doing. At review hearings, the court will find out whether you are following current court orders and, where necessary, make new orders in your case. DYFS and the law guardian will continue to report to the judge about your progress and your child. Often, DYFS will submit written reports about your case for the court to consider. At the review hearing you will be able to contest any DYFS reports.
When the court finds that you can safely care for your child at home, then the court will order that your child be returned to you. The court will probably continue your case for another few months after your child is returned to make sure that you are providing a safe, stable home for your child. Eventually, if all goes well, the court will dismiss your case.
20. What is a Permanency hearing?
If your child is in foster care or another out of home home placement and nearly a year has gone by, then the court will hold a permanency hearing. If the court decides that DYFS did not have to help you reunify your family, then a permanency hearing will be held much sooner. At the permanency hearing, DYFS will present a plan for a permanent living situation for your child, and the court will decide whether or not to approve that plan. DYFS may recommend any of the following:
a. Returning your child to you in the near future;
b. Filing a case to terminate your rights to your child so that your child can be adopted;
c. Placing your child in the custody of a relative or friend;
Having your child’s current caretakers become kinship legal guardians (where caretakers assume legal responsibility for the child, although parental rights are not terminated); or
d. Placing your child in long-term foster care.
You have the right to present an alternative plan for your child. For example, you can request that the judge allow your child to live with a specific relative or family friend. Or you can ask that the child’s caretakers become kinship legal guardians so that your parental rights are not terminated.
At the permanency hearing, DYFS must show that it made reasonable efforts to help you, unless the judge ruled that DYFS was not required to help you reunify with your child.
21. What should I do if DYFS makes an administrative finding that you abused or neglected your child?
In addition to bringing this court case against you, DYFS may make its own finding that you abused or neglected your child. If, after investigating your situation, DYFS should decide that you abused or neglected your child, then it will notify you that it has substantiated abuse or neglect. This administrative substantiation of abuse or neglect can have negative consequences for you. DYFS will place your name in a central registry of people it decides have abused or neglected children. This may prevent you from getting or keeping a job that involves caring for children or people who are old, ill, or disabled. It can also prevent you from becoming a foster or adoptive parent. In addition, DYFS will let the local and state police know about the abuse or neglect.
If you do not agree with the substantiation of abuse or neglect, then you should appeal it by contacting the office identified in the notice you receive from DYFS. You are entitled to review any reports on which DYFS is basing its decision. You are entitled to request a DYFS regional review to try to convince DYFS to change the decision. You are also entitled to a hearing before the Office of Administrative Law. After that hearing, an administrative law judge will make recommendations and the director of DYFS will make a final decision. If you lose your case, you can appeal to the Appellate Division of the Superior Court of New Jersey.
22. Do I have to pay for child support if DYFS places my child in foster care or with relatives?
If your child is in foster care, your county welfare agency may file a child support action against you on behalf of DYFS. Or relatives or friends caring for your child may seek child support from you. Do not ignore notices about a child support action against you. If you do not go to court, then the court may set a child support amount that is too high for you to pay. You may be jailed for contempt of court if you do not pay the support.
Any child support payments are based on your income. When you go to court in a child support case, you bring proof of your income. If you are receiving public assistance (such as welfare or SSI), bring proof of that with you.