SENATE, No. 951

STATE OF NEW JERSEY

214th LEGISLATURE

 

INTRODUCED FEBRUARY 4, 2010

 


 

Sponsored by:

Senator  JOSEPH F. VITALE

District 19 (Middlesex)

Senator  SANDRA B. CUNNINGHAM

District 31 (Hudson)

 

Co-Sponsored by:

Senator Greenstein

 

 

 

 

SYNOPSIS

     Expands the means to obtain a protective order for a minor.

 

CURRENT VERSION OF TEXT

     As introduced.

  


An Act concerning domestic violence and amending P.L.1991, c.261, P.L.1971, c.437, and P.L.1974, c.119.

 

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

 

     1.    Section 3 of P.L.1991, c.261 (C.2C:25-19) is amended to read as follows:

     3.    As used in this act:

     a.     "Domestic violence" means the occurrence of one or more of the following acts inflicted upon a person protected under this act by an adult or an emancipated minor: 

     (1)   Homicide    N.J.S.2C:11-1 et seq.

     (2)   Assault    N.J.S.2C:12-1

     (3)   Terroristic threats  N.J.S.2C:12-3

     (4)   Kidnapping    N.J.S.2C:13-1

     (5)   Criminal restraint  N.J.S.2C:13-2

     (6)   False imprisonment  N.J.S.2C:13-3

     (7)   Sexual assault   N.J.S.2C:14-2

     (8)   Criminal sexual contact  N.J.S.2C:14-3

     (9)   Lewdness    N.J.S.2C:14-4

     (10) Criminal mischief  N.J.S.2C:17-3

     (11) Burglary    N.J.S.2C:18-2

     (12) Criminal trespass  N.J.S.2C:18-3

     (13) Harassment    N.J.S.2C:33-4

     (14) Stalking    P.L.1992, c.209 (C.2C:12-10)

     When one or more of these acts is inflicted by an unemancipated minor upon a person protected under this act, the occurrence shall not constitute "domestic violence," but may be the basis for the filing of a petition or complaint pursuant to the provisions of section 11 of P.L.1982, c.77 (C.2A:4A-30). 

     When one or more of these acts is inflicted on an unemancipated minor by a parent or guardian, as defined in section 1 of P.L.1974, c.119 (C.9:6-8.21), responsible for the child’s care, or spouse of a parent or guardian or both, the occurrence shall not constitute “domestic violence,” but may be the basis for the filing of a petition or request for relief to obtain an order of protection pursuant to the provisions of P.L.1974, c.119  (C.9:6-8.21 et seq).  

     b.    "Law enforcement agency" means a department, division, bureau, commission, board or other authority of the State or of any political subdivision thereof which employs law enforcement officers. 

     c.     "Law enforcement officer" means a person whose public duties include the power to act as an officer for the detection, apprehension, arrest and conviction of offenders against the laws of this State. 

     d.    "Victim of domestic violence" means a person protected under this act and shall include any person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member. "Victim of domestic violence" also includes any person[, regardless of age,] who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant.  "Victim of domestic violence" also includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship. 

     e.     "Emancipated minor" means a person who is under 18 years of age but who has been married, has entered military service, has a child or is pregnant or has been previously declared by a court or an administrative agency to be emancipated. 

(cf: P.L.1994, c.94, s.1)

 

     2.    Section 2 of P.L.1971, c.437 (C.9:6-8.9) is amended to read as follows:

     2.    For purposes of this act:

     "Abused child" means a child under the age of 18 years whose parent, guardian, or other person having [his] custody and control:

     a.     Inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ;

     b.    Creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; or

     c.     Commits or allows to be committed an act of sexual abuse against the child;

     d.    Or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, or such other person having his custody and control, to exercise a minimum degree of care (1) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (2) in providing the child with proper supervision or guardianship, or by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment or using excessive physical restraint under circumstances which do not indicate that the child's behavior is harmful to himself, others or property; or by exhibiting a pattern of behavior that emotionally impairs or creates an imminent danger of emotional impairment for the child; or any other act of a similarly serious nature requiring the aid of the court;

     e.     Or a child who has been willfully abandoned by his parent or guardian, or such other person having his custody and control;

     f.     Or a child who is in an institution as defined in section 1 of P.L.1974, c. 119 (C. 9:6-8.21) and (1) has been so placed inappropriately for a continued period of time with the knowledge that the placement has resulted and may continue to result in harm to the child's mental or physical well-being or (2) has been willfully isolated from ordinary social contact under circumstances which indicate emotional or social deprivation.

     A child shall not be considered abused pursuant to subsection f. of this section if the acts or omissions described therein occur in a day school as defined in section 1 of P.L.1974, c. 119 (C. 9:6-8.21).

(cf: P.L.1987, c.341, s.3.)

 

     3.    Section 1 of P.L.1974, c.119 (C.9:6-8.21) is amended to read as follows:

     1.    As used in this act, unless the specific context indicates otherwise:

     a.     "Parent or guardian" means any natural parent, adoptive parent, resource family parent, stepparent, paramour of a parent or any person, who has assumed responsibility for the care, custody or control of a child or upon whom there is a legal duty for such care. Parent or guardian includes a teacher, employee or volunteer, whether compensated or uncompensated, of an institution who is responsible for the child's welfare and any other staff person of an institution regardless of whether or not the person is responsible for the care or supervision of the child.  Parent or guardian also includes a teaching staff member or other employee, whether compensated or uncompensated, of a day school as defined in section 1 of P.L.1974, c.119 (C.9:6-8.21).

     b.    "Child" means any child alleged to have been abused or neglected. 

     c.     "Abused or neglected child" means a child less than 18 years of age whose parent or guardian, as herein defined, (1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; (3) commits or allows to be committed an act of sexual abuse against the child; (4) or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by exhibiting a pattern of behavior that emotionally impairs or creates an imminent danger of emotional impairment for the child; or any other acts of a similarly serious nature requiring the aid of the court; (5) or a child who has been willfully abandoned by his parent or guardian, as herein defined; (6) or a child upon whom excessive physical restraint has been used under circumstances which do not indicate that the child's behavior is harmful to himself, others or property; (7) or a child who is in an institution and (a) has been placed there inappropriately for a continued period of time with the knowledge that the placement has resulted or may continue to result in harm to the child's mental or physical well-being or (b) who has been willfully isolated from ordinary social contact under circumstances which indicate emotional or social deprivation.

     A child shall not be considered abused or neglected pursuant to paragraph (7) of subsection c. of this section if the acts or omissions described therein occur in a day school as defined in this section.

     No child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall for this reason alone be considered to be abused or neglected.

     d.    "Law guardian" means an attorney admitted to the practice of law in this State, regularly employed by the Office of the Public Defender or appointed by the court, and designated under this act to represent minors in alleged cases of child abuse or neglect and in termination of parental rights proceedings. 

     e.     "Attorney" means an attorney admitted to the practice of law in this State who shall be privately retained; or, in the instance of an indigent parent or guardian, an attorney from the Office of the Public Defender or an attorney appointed by the court who shall be appointed in order to avoid conflict between the interests of the child and the parent or guardian in regard to representation.

     f.     "Division" means the Division of Youth and Family Services in the Department of Children and Families unless otherwise specified. 

     g.     "Institution" means a public or private facility in the State which provides children with out of home care, supervision or maintenance. Institution includes, but is not limited to, a correctional facility, detention facility, treatment facility, day care center, residential school, shelter and hospital. 

     h.     "Day school" means a public or private school which provides general or special educational services to day students in grades kindergarten through 12.  Day school does not include a residential facility, whether public or private, which provides care on a 24-hour basis.

(cf: P.L.2006, c.47, s.47)

 

     4.    Section 30 of P.L.1974, c.119 (C.9:6-8.50) is amended to read as follows:

     30.  Sustaining or dismissing complaint.  a.  If facts sufficient to sustain the complaint are established, the court shall enter an order finding that the child is an abused or neglected child and shall state the grounds for said findings. 

     b.    If the proof does not conform to the specific allegations of the complaint, the court may amend the allegations to conform to the proof; provided, however, that in such case the respondent shall be given reasonable time to prepare to answer the amended allegations. 

     c.     If facts sufficient to sustain the complaint under this act are not established, or the court concludes that its assistance is not required on the record before it, the court shall dismiss the complaint and shall state the grounds for the dismissal. 

     d.    If the court makes a finding of abuse or neglect, it shall determine, based upon the facts adduced during the fact-finding hearing, and upon any other facts presented to it, whether a preliminary order pursuant to section 11 hereof, including any order of protection pursuant to section 35 of P.L.1974, c.119 (C.9:6-8.55), is required to protect the child's interests pending a final order of disposition. The court shall state the grounds for its determination.  In addition, a child found to be abused or neglected may be removed and remanded to a place designated by the court or be placed in the custody of a suitable person, pending a final order of disposition, if the court finds that there is a substantial probability that the final order of disposition will be an order of placement under the section 34 hereof. 

     e.     If the court finds that the child is an abused or neglected child as defined in this act, it may refer any aspect of the matter, including anything related to the child and the parent or guardian, to the division, ordering that the division provide such services as are deemed appropriate to the ends of protecting the child and rehabilitating and improving family life, wherever possible.  In the event of such referral, the court may suspend any dispositional hearing indefinitely.  The division shall report the status of the case so referred to the court annually in writing, a copy to be served upon the parent or guardian and the law guardian.  The division shall also report its intent to terminate services in a case so referred to the court in writing. 

(cf: P.L.1977, c.209, s.24)

 

     5.    Section 31 of P.L.1974, c.119 (C.9:6-8.51) is amended to read as follows:

     31.  Disposition of adjudication.  a.  At the conclusion of a dispositional hearing under this act, the court shall enter an order of disposition:  (1) suspending judgment in accord with section 32 hereof;  (2) releasing the child to the custody of his parents or guardian in accord with section 33 hereof;  (3) placing the child in accord with section 34 hereof;  (4) making or continuing an order of protection in accord with section 35 hereof;  (5) placing the respondent on probation in accord with section 36 hereof;  (6) requiring that an individual found to have abused or neglected a child accept therapeutic services, and this order may be carried out in conjunction with any other order of disposition.

     b.    The court shall state the grounds for any disposition made under this section.

(cf: P.L.1974, c.119, s.31)

 

     6.    Section 35 of P.L.1974, c.119 (C.9:6-8.55) is amended to read as follows:

     35.  Order of protection. The court may make an order of protection in assistance or as a condition of any other order made under this act at any time.  The order of protection may set forth  reasonable conditions of behavior to be observed for a specified time by a  person who is before the court and is a parent or guardian responsible for the  child's care or the spouse of the parent or guardian, or both.  Such an order  may require any such person:  a. To stay away from the home, the other spouse, [or] the child, or other children identified by the court whose safety may be at risk;  b. To permit a parent to visit the child at stated periods;  c.  To abstain from offensive conduct against the child or against the other parent  or against any person to whom custody of the child is awarded;  d. To give  proper attention to the care of the home;  and e.  To refrain from acts of commission or omission that tend to make the home not a proper place for the  child.

     The court may also award custody of the child, during the term of the order  of protection to either parent or to an appropriate relative; however, nothing  in this section shall be construed to give the court power to place or board  out any child or to commit a child to the custody of an institution or agency.   In making orders of protection, the court shall so act as to insure that in  the care, protection, discipline and guardianship of the child, his religious  faith shall be preserved and protected.

     The court may extend an order of protection pursuant to sections 8 and 11 of P.L.1974, c.119 (C.9:6-8.28 and 9:6-8.31) and pursuant to this section beyond a child’s age of majority as necessary to protect the safety of the child.  However, such order may be dissolved or modified upon application to the Superior Court, upon good cause shown.

(cf:P.L.1974, c.119, s.35)

 

     7.    Section 47 of P.L.1974, c.119 (C.9:6-8.67) is amended to read as follows:

     47.  Failure to comply with terms and conditions of probation.  If a parent or guardian is brought before the court for failing to comply with the terms and conditions of an order of probation issued under section 36 hereof, [or of an order of protection issued under section 35] or section 11 hereof, and if, after hearing, the court is satisfied by competent proof that the parent or guardian did so willfully and without just cause, the court may revoke the order of probation [or of protection] and enter any order necessary to protect the safety of the child and that might have been made at the time the order of probation was made.

     If a parent or guardian is brought before the court for failing to comply with the terms and conditions of an order of protection issued pursuant to sections 8, 11, or 35 of P.L.1974, c.119 (C.9:6-8.28, 9:6-8.31, or 9:6-8.55), and after a hearing, the court is satisfied by competent proof that the parent or guardian did so willfully and without just cause, the act shall constitute an offense under subsection b. of N.J.S.2C:29-9 and each order shall so state.  Additionally, and notwithstanding the term of imprisonment provided in N.J.S.2C:43-8, any person convicted of a second or subsequent non-indictable contempt offense shall serve a minimum term of not less than 30 days.

     All contempt proceedings conducted pursuant to N.J.S.2C:29-9 involving orders of protection issued pursuant to P.L.1974, c.119 (C.9:6-8.67 et seq.) shall be heard by the Superior Court and be subject to any rules or guidelines established by the Supreme Court.  The court may also issue orders of protection, as necessary, for any other action that may protect the best interest of the child.

     Where a law enforcement officer finds that there is probable cause that a parent or guardian has committed contempt of an order entered pursuant to the provisions of sections 8, 11, or 35 of P.L.1974, c.119 (C.9:6-8.28, 9:6-8.31, or 9:6-8.55), the parent or guardian shall be arrested and taken into custody by a law enforcement officer and the law enforcement officer shall sign a complaint concerning the incident which gave rise to the contempt.

(cf: P.L.1974, c.119, s.47)

 

     8.    This act shall take effect on the first day of the third month following enactment.


STATEMENT

 

     This bill makes various changes to the laws concerning protective orders related to child abuse to make them more similar to the laws concerning protective orders related to domestic violence. 

     Section 1 of the bill clarifies whether the domestic violence laws or the child abuse laws control situations related to abuse of a child by a parent or guardian.  Section 1 adds language to the definition of “domestic violence” in N.J.S.A.2C:25-19 stating that when one or more of the acts enumerated in the list of crimes in the definition of “domestic violence” is inflicted on an unemancipated minor by a parent or guardian responsible for the child’s care, or spouse of the parent or guardian, or both, it is not domestic violence, but may be the basis for the filing of a petition or request for relief to obtain an order of protection pursuant to the State’s child abuse laws.

     Sections 2 and 3 of the bill amend the definition of “abused child” in N.J.S.A.9:6-8.6 and “abused or neglected child” in N.J.S.A.9:6-8.21 to include exhibiting a pattern of behavior that emotionally impairs or creates an imminent danger of emotional impairment for the child.  The purpose of these sections is to expand the protections offered by the child abuse statutes.

     Section 6 of the bill amends N.J.S.A.9:6-8.55 to provide that a court in child abuse or neglect cases may issue orders requiring persons to stay away from not just the abused child, but also other children identified by the court whose safety may be at risk.  Section 6 also provides that a court may extend an order of protection beyond when the child reaches the age of majority if necessary to protect the person’s safety.  An order so extended could be dissolved or modified upon good cause shown.

     Section 7 of the bill does the following:

·        provides that a parent or guardian willfully failing to comply with an order of protection without just cause commits an offense under subsection b. of N.J.S.A.2C:29-9; 

·        provides that for a second or subsequent non-indictable contempt offense, a person is subject to a mandatory term of not less than 30 days imprisonment; 

·        requires that all contempt proceedings under P.L.1974, c.119 (C.9:6-8.67 et seq.) be conducted in Superior Court pursuant to the Supreme Court’s rules and guidelines; and

·        requires that a law enforcement officer who finds that there is probable cause that a parent or guardian has committed an act of contempt of an order of protection shall arrest the person, take them into custody, and file a complaint. 

     Sections 4 and 5 of the bill bring other sections of law (N.J.S.A.9:6-8.50 and 9:6-8.51) into conformity with the provisions of sections 6 and 7 of the bill.