SENATE, No. 185

STATE OF NEW JERSEY

215th LEGISLATURE

PRE-FILED FOR INTRODUCTION IN THE 2012 SESSION

 


 

Sponsored by:

Senator† CHRISTOPHER J. CONNORS

District 9 (Atlantic, Burlington and Ocean)

Senator† JAMES BEACH

District 6 (Burlington and Camden)

 

 

 

 

SYNOPSIS

†††† Requires court to consider results of domestic violence assessment before dissolving certain domestic violence restraining orders.

 

CURRENT VERSION OF TEXT

†††† Introduced Pending Technical Review by Legislative Counsel

††


An Act concerning domestic violence assessments, and supplementing and amending P.L.1991, c.261 (C.2C:25-29).†

 

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

 

†††† 1.† (New section)† a.† Upon good cause shown, any final order issued pursuant to P.L.1991, c.261 (C.2C:25-29) may be dissolved or modified upon application to the Family Part of the Chancery Division of the Superior Court, but only if the judge who dissolves or modifies the order is the same judge who entered the order, or has available a complete record of the hearing or hearings on which the order was based.†

†††† b.† When the defendant applies to the court to dissolve a final order, the court shall consider, but not be limited to, the following factors in determining whether good cause has been shown that the final order should be dissolved:

†††† (1) whether the victim voluntarily consents to dissolve the final order;

†††† (2) whether the victim fears the defendant;

†††† (3) the nature of the current relationship between the victim and defendant;

†††† (4) the number of times the defendant has been convicted of contempt for violating the final order;

†††† (5) whether the defendant has a continuing involvement with drug or alcohol abuse;

†††† (6) whether the defendant has been involved in other violent acts with other persons;

†††† (7) whether the defendant has engaged in counseling;

†††† (8) the age and health of the defendant;

†††† (9) whether the victim is acting in good faith in opposing the defendantís request for dissolution; and

†††† (10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant.†††††

†††† c.† If the defendant is subject to two or more final orders issued pursuant to P.L.1991, c.261 (C.2C:25-29), the defendant shall be required to undergo a domestic violence assessment as defined in paragraph (18) of subsection b. of P.L.1991, c.261 (C.2C:25-29).† In addition to the factors specified in subsection b. of this section, the court shall consider the findings of the assessment in determining whether good cause has been shown that the final order should be dissolved. †The defendant shall bear the costs of the assessment.† The findings of the assessment shall be forwarded to the court that ordered the assessment and shall be considered confidential.


†††† 2.† Section 13 of P.L.1991, c.261 (C:2C:25-29) is amended to read as follows:†

†††† 13.† a. A hearing shall be held in the Family Part of the Chancery Division of the Superior Court within 10 days of the filing of a complaint pursuant to section 12 of P.L.1991, c.261 (C.2C:25-28) in the county where the ex parte restraints were ordered, unless good cause is shown for the hearing to be held elsewhere.† A copy of the complaint shall be served on the defendant in conformity with the Rules of Court. If a criminal complaint arising out of the same incident which is the subject matter of a complaint brought under P.L.1981, c.426 (C.2C:25-1 et seq.) or P.L.1991, c.261 (C.2C:25-17 et seq.) has been filed, testimony given by the plaintiff or defendant in the domestic violence matter shall not be used in the simultaneous or subsequent criminal proceeding against the defendant, other than domestic violence contempt matters and where it would otherwise be admissible hearsay under the rules of evidence that govern where a party is unavailable.† At the hearing the standard for proving the allegations in the complaint shall be by a preponderance of the evidence.† The court shall consider but not be limited to the following factors:†

†††† (1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

†††† (2) The existence of immediate danger to person or property;

†††† (3) The financial circumstances of the plaintiff and defendant;

†††† (4) The best interests of the victim and any child;

†††† (5) In determining custody and parenting time the protection of the victim's safety; and

†††† (6) The existence of a verifiable order of protection from another jurisdiction.†

†††† An order issued under this act shall only restrain or provide damages payable from a person against whom a complaint has been filed under this act and only after a finding or an admission is made that an act of domestic violence was committed by that person.† The issue of whether or not a violation of this act occurred, including an act of contempt under this act, shall not be subject to mediation or negotiation in any form.† In addition, where a temporary or final order has been issued pursuant to this act, no party shall be ordered to participate in mediation on the issue of custody or parenting time.

†††† b.† In proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse.† In addition to any other provisions, any restraining order issued by the court shall bar the defendant from purchasing, owning, possessing or controlling a firearm and from receiving or retaining a firearms purchaser identification card or permit to purchase a handgun pursuant to N.J.S.2C:58-3 during the period in which the restraining order is in effect or two years whichever is greater, except that this provision shall not apply to any law enforcement officer while actually on duty, or to any member of the Armed Forces of the United States or member of the National Guard while actually on duty or traveling to or from an authorized place of duty.† At the hearing the judge of the Family Part of the Chancery Division of the Superior Court may issue an order granting any or all of the following relief:†

†††† (1) An order restraining the defendant from subjecting the victim to domestic violence, as defined in this act.†

†††† (2) An order granting exclusive possession to the plaintiff of the residence or household regardless of whether the residence or household is jointly or solely owned by the parties or jointly or solely leased by the parties.† This order shall not in any manner affect title or interest to any real property held by either party or both jointly.† If it is not possible for the victim to remain in the residence, the court may order the defendant to pay the victim's rent at a residence other than the one previously shared by the parties if the defendant is found to have a duty to support the victim and the victim requires alternative housing.†

†††† (3) An order providing for parenting time.† The order shall protect the safety and well-being of the plaintiff and minor children and shall specify the place and frequency of parenting time. Parenting time arrangements shall not compromise any other remedy provided by the court by requiring or encouraging contact between the plaintiff and defendant.† Orders for parenting time may include a designation of a place of parenting time away from the plaintiff, the participation of a third party, or supervised parenting time.†

†††† (a) The court shall consider a request by a custodial parent who has been subjected to domestic violence by a person with parenting time rights to a child in the parent's custody for an investigation or evaluation by the appropriate agency to assess the risk of harm to the child prior to the entry of a parenting time order.† Any denial of such a request must be on the record and shall only be made if the judge finds the request to be arbitrary or capricious.†

†††† (b) The court shall consider suspension of the parenting time order and hold an emergency hearing upon an application made by the plaintiff certifying under oath that the defendant's access to the child pursuant to the parenting time order has threatened the safety and well-being of the child.†

†††† (4) An order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence.† The order may require the defendant to pay the victim directly, to reimburse the Victims of Crime Compensation Board for any and all compensation paid by the Victims of Crime Compensation Board directly to or on behalf of the victim, and may require that the defendant reimburse any parties that may have compensated the victim, as the court may determine.† Compensatory losses shall include, but not be limited to, loss of earnings or other support, including child or spousal support, out-of-pocket losses for injuries sustained, cost of repair or replacement of real or personal property damaged or destroyed or taken by the defendant, cost of counseling for the victim, moving or other travel expenses, reasonable attorney's fees, court costs, and compensation for pain and suffering. Where appropriate, punitive damages may be awarded in addition to compensatory damages. †

†††† (5) An order requiring the defendant to receive professional domestic violence counseling from either a private source or a source appointed by the court and, in that event, requiring the defendant to provide the court at specified intervals with documentation of attendance at the professional counseling.† The court may order the defendant to pay for the professional counseling.† No application by the defendant to dissolve a final order which contains a requirement for attendance at professional counseling pursuant to this paragraph shall be granted by the court unless, in addition to any other provisions required by law or conditions ordered by the court, the defendant has completed all required attendance at such counseling.†

†††† (6) An order restraining the defendant from entering the residence, property, school, or place of employment of the victim or of other family or household members of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim or other family or household members.†

†††† (7) An order restraining the defendant from making contact with the plaintiff or others, including an order forbidding the defendant from personally or through an agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact with the victim or other family members, or their employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim.†

†††† (8) An order requiring that the defendant make or continue to make rent or mortgage payments on the residence occupied by the victim if the defendant is found to have a duty to support the victim or other dependent household members; provided that this issue has not been resolved or is not being litigated between the parties in another action.†

†††† (9) An order granting either party temporary possession of specified personal property, such as an automobile, checkbook, documentation of health insurance, an identification document, a key, and other personal effects.†

†††† (10) An order awarding emergency monetary relief, including emergency support for minor children, to the victim and other dependents, if any.† An ongoing obligation of support shall be determined at a later date pursuant to applicable law.†

†††† (11) An order awarding temporary custody of a minor child.† The court shall presume that the best interests of the child are served by an award of custody to the non-abusive parent.†

†††† (12) An order requiring that a law enforcement officer accompany either party to the residence or any shared business premises to supervise the removal of personal belongings in order to ensure the personal safety of the plaintiff when a restraining order has been issued.† This order shall be restricted in duration.†

†††† (13) (Deleted by amendment, P.L.1995, c.242).†

†††† (14) An order granting any other appropriate relief for the plaintiff and dependent children, provided that the plaintiff consents to such relief, including relief requested by the plaintiff at the final hearing, whether or not the plaintiff requested such relief at the time of the granting of the initial emergency order.†

†††† (15) An order that requires that the defendant report to the intake unit of the Family Part of the Chancery Division of the Superior Court for monitoring of any other provision of the order.†

†††† (16) In addition to the order required by this subsection prohibiting the defendant from possessing any firearm, the court may also issue an order prohibiting the defendant from possessing any other weapon enumerated in subsection r. of N.J.S.2C:39-1 and ordering the search for and seizure of any firearm or other weapon at any location where the judge has reasonable cause to believe the weapon is located.† The judge shall state with specificity the reasons for and scope of the search and seizure authorized by the order.†

†††† (17) An order prohibiting the defendant from stalking or following, or threatening to harm, to stalk or to follow, the complainant or any other person named in the order in a manner that, taken in the context of past actions of the defendant, would put the complainant in reasonable fear that the defendant would cause the death or injury of the complainant or any other person.† Behavior prohibited under this act includes, but is not limited to, behavior prohibited under the provisions of P.L.1992, c.209 (C.2C:12-10).†

†††† (18) An order requiring the defendant to undergo a [psychiatric evaluation] domestic violence assessment.† For the purposes of this section, a ďdomestic violence assessmentĒ means an assessment performed by a psychiatrist, licensed psychologist, licensed clinical social worker, or licensed professional counselor with the goal of determining the likelihood that the offender will commit future acts of violence, abuse or other unacceptable behavior that could pose a threat to the victim, the victimís family, the victimís property, or other person identified as being at risk.† The defendant shall bear the costs of the assessment.† The findings of the assessment shall be forwarded to the court that ordered the assessment and shall be considered confidential. †The Administrative Office of the Courts shall develop standards for persons who are eligible to conduct domestic violence assessments pursuant to this subsection.

†††† c.† Notice of orders issued pursuant to this section shall be sent by the clerk of the Family Part of the Chancery Division of the Superior Court or other person designated by the court to the appropriate chiefs of police, members of the State Police and any other appropriate law enforcement agency.†

†††† d.† [Upon good cause shown, any final order may be dissolved or modified upon application to the Family Part of the Chancery Division of the Superior Court, but only if the judge who dissolves or modifies the order is the same judge who entered the order, or has available a complete record of the hearing or hearings on which the order was based] Deleted by amendment, P.L.†† ††, c.†††† ).†

†††† e.† Prior to the issuance of any order pursuant to this section, the court shall order that a search be made of the domestic violence central registry.†

(cf:† P.L.2003, c.277, s.2)

 

†††† 3.† This act shall take effect on the first day of the seventh month after enactment.†

 

 

STATEMENT

 

†††† This bill requires the court to consider the results of a domestic violence assessment before dissolving a final restraining order when the defendant has two or more restraining orders against him.† The defendant would be responsible for the costs of the assessment and the assessment would be considered confidential.†

†††† The bill defines a ďdomestic violence assessmentĒ as an assessment performed by a psychiatrist, licensed psychologist, licensed clinical social worker, or licensed professional counselor with the goal of determining the likelihood that the offender will commit future acts of violence, abuse or other unacceptable behavior that could pose a threat to the victim, the victimís family, the victimís property, or other person identified as being at risk.† The substitute requires the Administrative Office of the Courts to develop standards for persons who are eligible to conduct the assessments.†

†††† The bill also codifies the factors currently considered by the court in determining whether a defendant who has applied to dissolve a final order has established requisite good cause.† Those factors, as set forth in Carfagno v. Carfagno, 288 N.J.Super. 424 (Ch. Div. 1995), are:†

†††† (1) whether the victim voluntarily consents to dissolve the final order;

†††† (2) whether the victim fears the defendant;

†††† (3) the nature of the current relationship between the victim and defendant;

†††† (4) the number of times the defendant has been convicted of contempt for violating the final order;

†††† (5) whether the defendant has a continuing involvement with drug or alcohol abuse;

†††† (6) whether the defendant has been involved in other violent acts with other persons;

†††† (7) whether the defendant has engaged in counseling;

†††† (8) the age and health of the defendant;

†††† (9) whether the victim is acting in good faith in opposing the defendantís request for dissolution; and

†††† (10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant.

†††† Finally, the bill clarifies that when there is a complaint for a restraining order, the court may order a domestic violence assessment.† Current law authorizes the court to order a psychiatric evaluation.