ASSEMBLY COMMITTEE SUBSTITUTE FOR

ASSEMBLY, No. 3096

STATE OF NEW JERSEY

214th LEGISLATURE

  ADOPTED SEPTEMBER 16, 2010

 


 

Sponsored by:

Assemblyman  JACK CONNERS

District 7 (Burlington and Camden)

Assemblyman  HERB CONAWAY, JR.

District 7 (Burlington and Camden)

Assemblywoman  DIANNE C. GOVE

District 9 (Atlantic, Burlington and Ocean)

Assemblyman  BRIAN E. RUMPF

District 9 (Atlantic, Burlington and Ocean)

 

Co-Sponsored by:

Assemblyman DeAngelo

 

 

 

 

SYNOPSIS

     Concerns custody and parenting time issues for military parents.

 

CURRENT VERSION OF TEXT

     Substitute as adopted by the Assembly Military and Veterans' Affairs Committee.

  

 

 

 


An Act concerning certain child custody arrangements during certain periods of military service by a parent and supplementing chapter 2 of Title 9 of the Revised Statutes.

 

     Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

     1.  The Legislature finds and declares that:

     Currently there are seven military bases in New Jersey, and 35 National Guard armories, and there is a significant presence of citizens serving in the military.  Temporary duty, the deployment of a military service member on active duty, or the mobilization of a member of the National Guard or Reserve, sometimes with little advance notice, can have a disruptive effect on custody or parenting time arrangements involving minor children of service members.  Service members should be protected, as should their minor children, from the loss of custodial arrangements and disruption of family contact due to the service member’s absence pursuant to military orders for temporary duty, deployment, or mobilization.  Other members of a service member’s family, such as grandparents or current spouses, and minor siblings, can provide love, support, comfort, care, and continuity to the service member’s child through delegated parenting time when a service member is absent due to military orders.  The scheduling of hearings in the normal course may be prohibited or delayed pursuant to the protections of the federal Servicemembers Civil Relief Act and harmful to the interest of service members who, due to military orders, may need to have an expedited hearing or may need to use electronic means to give testimony when they cannot appear in person in court.  The scheduling of hearings conducted in the absence of service members may be harmful to the best interest of minor children who are negatively impacted and disrupted by the loss of parenting time and contact with the military parent.  The use of expedited hearings and testimony by electronic means, at the request of the service member who is absent or about to depart, would aid and promote fair, informed, efficient, and prompt judicial processes for the resolution of family law matters.

 

     2.    As used in this act:

     a.     “Parent” means natural parent or adoptive parent of a child under the age of 18 years whose parental rights have not been terminated by a court of competent jurisdiction, or a guardian of a child under the age of 18 years.

     b.    “Deployed parent” means a parent who has been mobilized and is subject to deployment, or who has been deployed, or who has received written orders to deploy, as a member of the United States Army, Navy, Air Force, Marine Corps, or a Cost Guard, or any reserve component thereof, or a National Guard.

     c.     “Non-deployed parent” means a parent not subject to deployment.

     d.    “Deployment” means military service in compliance with military orders received by a member of the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, or any other reserve component thereof, or a National Guard, to report for combat operations, contingency operations, peacekeeping operations, mobilization, temporary duty, a remote tour of duty, or service upon a vessel, or other active service for which the member is required to report unaccompanied by any family member, including a period during which a member remains subject to deployment orders or remains deployed due to illness, injury, leave, or other lawful cause.

 

     3.    If a parent is required to be separated from a child due to deployment, a court shall not enter a final order modifying the terms of the parenting time contained in an existing order, or enter a final order establishing custodial terms, until 90 days after the deployment ends.

 

     4.    Deployment or the potential for future deployment may not be the sole factor serving as a basis for an application for a change in circumstance to support a permanent modification of the custody or parenting time established in an existing order.

 

     5.    a.  An existing order establishing the terms of custody or parenting time in place at the time a parent is deployed may be temporarily modified to make reasonable accommodation for the parties because of the deployment of the parent.

     b.  A temporary modification order issued pursuant to this section shall provide that the deployed parent shall exercise custody of the child or exercise reasonable parenting time, whichever is applicable pursuant to the original order, during a period of leave granted to the deployed parent. 

     c.     Any court modifying a previously ordered custody or parenting time order due to the deployment of a parent shall specify that the deployment is the basis for the order and shall be entered by the court as a temporary order.  Any such custody or parenting time order shall further require the non-deployed parent and the legal representative to provide the court and the deployed parent with 30 days’ advance written notice of any intended change of address and any change of telephone number.

     d.    Upon the affirmative application of a deployed parent, upon reasonable advance notice, and for good cause shown, the court shall hold an expedited hearing in any custody or parenting time application instituted under this section when the military duties of the deployed parent have a material effect on his or her ability, or anticipated ability, to appear or fully participate in person at a hearing or evaluative process scheduled in the normal course.  Such application, if made, shall be considered to be an application for affirmative relief, consistent with the protections afforded in the Servicemembers Civil Relief Act, 50 U.S.C. appendix sec. 591, and shall not be considered as a waiver of any rights or protections contained under law in the Servicemembers Civil Relief Act. 

 

     6.    a.         A temporary order for custody or parenting time as set forth in section 5 of P.L.     , c.    (C.    ) (pending before the Legislature as this bill) shall end by operation of law upon the return of the deployed parent no later than 30 days after the return of the deployed parent and the original terms of the custody or parenting time order previously in place at the time of deployment shall be considered reinstated.

     b.  Subsection a. of this section shall not limit the power of the court to conduct an expedited or emergency hearing regarding the terms and conditions of the exercise of custody or parenting time upon return of the deployed parent, and the court shall do so within 10 days of the filing of an application seeking the continuation of the temporary order based upon a showing of immediate danger of irreparable harm to the child. 

     c.     The non-deployed parent shall bear the burden of showing that the continuation of the temporary custody or parenting time order is required to prevent irreparable harm and that the reinstatement of any orders in effect before the deployment of the parent will no longer be in the child’s best interests.  The court shall set any motion by the non-deployed parent that is not an emergency for hearing within 30 days of filing of the motion and such an application shall take precedence on the court’s docket.

 

     7.    Any order permitting removal of the child from the State of New Jersey during or due to deployment of a parent, shall be denominated a temporary order, and any absence of the child from the State of New Jersey as the result of P.L.2004, c.147 (C.2A:34-53 et seq.), the Uniform Child Custody Jurisdiction and Enforcement Act, shall be considered a temporary absence.  For the duration of the deployment of the parent, New Jersey shall retain the exclusive, continuing jurisdiction under section 14 of P.L.2004, c.147 (C.2A:34-66) and deployment of the parent may not be used as a basis to assert inconvenience of the forum under section 19 of P.L.2004, c.147 (C.2A:34-71).

 

     8.    In any application of custody or parenting time in which the deployed parent invokes the protections of the Servicemembers Civil Relief Act, 50U.S.C. appendix 521, and the court declines to extend a stay of proceedings beyond the mandatory 90 days required by federal law and proceeds in the absence of the deployed parent, the court shall appoint at the request of the deployed parent, or its own motion, a guardian ad litem or an attorney or both to represent the minor child’s interests. 

 

     9.    Upon affirmative application of the deployed parent, or upon affirmative application of a person acting under military power of attorney, as provided for under 10 U.S.C. 1044, the court may temporarily delegate the deployed parent’s parenting time, or a portion of their parenting time, to persons with a close personal relationship to the deployed parent and the child, for the duration of the deployment if it is determined to be in the child’s best interest.  Such delegated parenting time or access does not create an entitlement or standing to assert separate rights to parenting time or access for any person other than a parent, and shall terminate by operation of law upon the end of the deployment, as set forth in this act.

 

     10.  Upon affirmative application of a deployed parent, upon reasonable advance notice, and for good cause shown, the court shall allow that parent to present testimony and evidence by affidavit or electronic means in family support, custody, and parenting time matters instituted under this act when the military duties of that parent have a material effect on his or her ability, or anticipated ability, to appear or fully participate in person at a hearing or evaluative process scheduled in the normal course.  Such application, if made, shall be considered to be an application for affirmative relief consistent with the protections afforded in the Servicemembers Civil Relief Act, 50 U.S.C. appendix sec. 591, and shall not be considered as a waiver of any rights or protections contained under law in the Servicemembers Civil Relief Act.  “Electronic means” shall include communication by telephone, video teleconference, or the Internet.

 

     11.  Any order entered under this act shall require that:

     a.     The non-deployed parent shall make the child reasonably available to the deployed parent when the deployed parent has leave;

     b.    The non-deployed parent shall facilitate opportunities for telephonic and electronic mail contact between the deployed parent and the child during periods of deployment; and

     c.     The deployed parent shall provide timely information regarding such parent’s leave schedule to the non-deployed parent.


     12.  If there is no existing order establishing the terms of custody or parenting time and it appears that deployment is imminent, upon affirmative application by a parent,  the court shall expedite a temporary hearing to establish the terms and conditions of temporary custody or parenting time, during the time period of deployment.  Any initial pleading filed to establish physical or legal custody or parenting time for a child of a deployed parent shall be so identified at the time of filing by stating in the text of the pleading the specific facts related to deployment.  Such application, if made by the deployed parent, shall be considered to be an application for affirmative relief, consistent with the protections afforded in the Servicemembers Civil Relief Act, 50 U.S.C. appendix sec. 591, and shall not be considered as a waiver of any rights or protections contained under law in the Servicemembers Civil Relief Act. 

 

     13.  a.  If military necessity precludes court adjudication before deployment, the parties shall cooperate with each other in an effort to reach a mutually agreeable resolution of custody, parenting time, and child support.

     b.    A deployed parent shall provide a copy of his or her orders to the non-deployed parent promptly and without delay before deployment.  Notification shall be made within 10 days of receipt of orders for deployment.  If less than 10 days’ notice is received by the deployed parent, then notice shall be given immediately upon receipt of orders for deployment.

 

     14.  Service of process on a non-deployed parent whose whereabouts are unknown may be accomplished by certified mail, return receipt requested, to the non-deployed parent’s last known address based on an affidavit of the deployed parent.

 

     15.  In determining whether a parent has failed to exercise parenting time, the court may not include in its determination any time periods during which the parent did not exercise parenting time due to the parent’s deployment or due to the material effect of that parent’s military duties on the exercise of parenting time.

 

     16.  In making determinations pursuant to this act, the court may award attorney’s fees and costs based on the court’s consideration of:

     a.     the failure of either party to reasonably accommodate the other party in custody or parenting time schedules related to a parent’s military service;

     b.    unreasonable delay caused by either party in resolving custody or parenting time disputes related to a parent’s military service;

     c.     failure of either party to provide in a timely manner to the other party military orders, income, earnings or payment information, housing or educational information, or physical location of the child; and

     d.    other factors as the court may consider appropriate and as may be required by law.

 

     17.  This act shall take effect immediately for all applications that are filed on or after that date.