Parental Rights for the Incarcerated

Those serving life sentences for crimes including murder may still have the right to visitation with their children. In Fusco v. Fusco, 452 A.2d 681 (1982), the NJ Appellate Division held that incarceration of a parent does not result in automatic termination of visitation between the parent and their children. In any case, it will be the best interests of the children that determine whether visitation should be terminated. Fusco was in prison for first degree murder and related charges. The mother of Fusco's child sought to prevent visitation in order to protect the child from full awareness of the brutal crime and hoped not to interfere with the seemingly healthy adjustment the child had made to not having her father in her life. The court held that a plenary hearing was required in order to establish the desirability of maintaining the relationship between parent and child; the psychological burden on the child in seeing their parent in a correctional facility; the burden on the non-incarcerated parent and; the ability to prevent the children from knowledge of the details of the offense. In a recent case, New Jersey Division of Youth and Family Services v. M.L., a father serving a life sentence in Pennsylvania faced termination of parental rights. So fundamental are a parent's rights that the NJ Appellate Court held that M.L. had to be permitted to participate in the trial by some means allowing him to cross-examine witnesses and testify on his own behalf if he wished and reversed the decision of the Warren County Superior Court Judge who terminated his rights and granted guardianship to DYFS. Although there are cases in which a parent's interaction with a child is inimical to the best interests of the child, every parent is entitled to the opportunity to parent until a finding of unfitness of the parent or the danger of either physical or mental harm to the child by the parent is determined in a fair proceeding. If you are involved in a dispute over custody or parenting time you should seek an experienced family law attorney to insure your parental rights are upheld. For more information regarding custody, parenting time, child support, alimony divorce, dissolution or other family law matters in New Jersey visit HeatherDarlingLawyer.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.