SENATE, No. 197

STATE OF NEW JERSEY

217th LEGISLATURE

PRE-FILED FOR INTRODUCTION IN THE 2016 SESSION

 


 

Sponsored by:

Senator† JOSEPH M. KYRILLOS, JR.

District 13 (Monmouth)

Senator† STEVEN V. OROHO

District 24 (Morris, Sussex and Warren)

 

Co-Sponsored by:

Senator A.R.Bucco

 

 

 

 

SYNOPSIS

†††† Strengthens rights of certain sexual assault victims to sole custody; allows victim to place child for adoption without notice to person who committed sexual assault resulting in birth of the child.

 

CURRENT VERSION OF TEXT

†††† Introduced Pending Technical Review by Legislative Counsel.

††


An Act concerning sexual assault and parental rights and amending P.L.1995, c.55 and P.L.1977, c.367.

 

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

 

†††† 1.††† Section 1 of P.L.1995, c.55 (C.9:2-4.1) is amended to read as follows:

†††† 1.††† a. Notwithstanding any provision of law to the contrary, [a person convicted] if the court finds by clear and convincing evidence that a person committed an act of sexual assault under N.J.S.2C:14-2, the person shall not be awarded the custody of or visitation rights to any minor child, including a minor child who was born as a result of or was the victim of the sexual assault, except upon a showing by clear and convincing evidence that it is in the best interest of the child for custody or visitation rights to be awarded and that an award of custody or visitation rights will not endanger the victim.

†††† A conviction of sexual assault under N.J.S.2C:14-2 is not a prerequisite for a finding by the court that the person committed an act of sexual assault under N.J.S.2C:14-2.† The court may make such a finding in the absence of a criminal charge; while a criminal charge is pending; or if the defendant is charged with an offense set forth in this subsection and subsequently pleads guilty to a lesser offense pursuant to a negotiated agreement.

†††† However, a court that awards such custody or visitation rights to a person [convicted] who committed an act of sexual assault under N.J.S.2C:14-2 shall stay enforcement of the order or judgment for at least 10 days in order to permit the appeal of the order or judgment and application for a stay in accordance with the Rules of Court.

†††† b.††† Notwithstanding any provision of law to the contrary, [a person convicted] if the court finds by clear and convincing evidence that a person committed an act of sexual contact under N.J.S.2C:14-3 or endangering the welfare of a child under N.J.S.2C:24-4, the person shall not be awarded the custody of or visitation rights to any minor child, except upon a showing by clear and convincing evidence that it is in the best interest of the child for such custody or visitation rights to be awarded and that an award of custody or visitation rights will not endanger the victim.

†††† A conviction of sexual contact under N.J.S.2C:14-3 or endangering the welfare of a child under N.J.S.2C:24-4 is not a prerequisite for a finding by the court that the person committed an act of sexual contact under N.J.S.2C:14-3 or endangering the welfare of a child under N.J.S.2C:24-4.† The court may make such a finding in the absence of a criminal charge; while a criminal charge is pending; or if the defendant is charged with an offense set forth in this subsection and subsequently pleads guilty to a lesser offense pursuant to a negotiated agreement.

†††† However, a court that awards such custody or visitation rights to a person [convicted] who committed an act of sexual contact under N.J.S.2C:14-3 or endangering the welfare of a child under N.J.S.2C:24-4 shall stay enforcement of the order or judgment for at least 10 days in order to permit the appeal of the order or judgment and application for a stay in accordance with the Rules of Court.

†††† c.†††† [A] Except as provided in paragraph (g) of section 15 of P.L.1951, c.138 (C.30:4C-15), a denial of custody or visitation under this section shall not by itself terminate the parental rights of the person denied visitation or custody, nor shall it affect the obligation of the person to support the minor child.

†††† d.††† In any proceeding for establishment or enforcement of such an obligation of support the victim shall not be required to appear in the presence of the obligor and the victim's and child's whereabouts shall be kept confidential.

(cf: P.L.1999, c.424)

 

†††† 2.††† Section 9 of P.L.1977, c.367 (C.9:3-45) is amended to read as follows:

†††† 9.††† a. In an adoption proceeding pursuant to P.L.1977, c.367 (C.9:3-37 et seq.), notice of the complaint may not be waived and a notice of hearing shall be served in accordance with the Rules of Court on each parent of the child to be adopted.† The notice shall inform each parent of the purpose of the action and of the parent's right to file written objections to the adoption within 20 days after notice is given in the case of a resident and 35 days in the case of a nonresident.† For purposes of this section, "parent" means (1) the husband of the mother of a child born or conceived during the marriage or (2) a putative or alleged biological mother or father of a child.

†††† b.††† Notice pursuant to subsection a. of this section shall not be served on a parent:

†††† (1)†† Who has executed a valid surrender to an approved agency pursuant to section 5 of P.L.1977, c.367 (C.9:3-41) or P.L.1955, c.232 (C.9:2-13 et seq.);

†††† (2)†† Whose parental rights have been terminated in a separate judicial proceeding by court order;

†††† (3)†† Who has, prior to the placement of the child for adoption, received notice of the intention to place the child, which notice shall inform the parent of the purpose of the placement, that failure to respond to the notice will prevent the person receiving the notice from objecting to any future adoption of the child, and that the parent has a right to file with the surrogate in the county in which venue is anticipated to lie, the address of which surrogate shall be included in the notice, written objections to the proposed placement within 20 days after notice is given, in the case of a resident, and 35 days in the case of a nonresident; and who has either failed to file written objections or denied paternity or maternity of the child.† Failure to respond to this notice and object to the placement of the child for adoption shall constitute a waiver of all notice of any subsequent proceedings with regard to the child including proceedings for adoption or termination of parental rights;

†††† (4)†† Who has given the child for adoption to the adopting parent, and the Superior Court, Chancery Division, Family Part, after a hearing at which the surrendering parent was heard as to the voluntariness of the surrender, has determined that the surrender was voluntary and proper;

†††† (5)†† Whose child has been made available for adoption in a foreign state or country if the United States Citizenship and Immigration [and Naturalization Service] Services has determined that the child has been approved for adoptive placement. The finding of the United States Citizenship and Immigration [and Naturalization Service] Services shall be presumed valid and no notice shall be served [or]

†††† (6)†† Who is presumed to be the† biological father of the child who is the subject of the adoption proceeding pursuant to paragraph (2) of subsection a. of section 6 of P.L.1983, c.17 (C.9:17-43) but who, within 120 days of the birth of the child or prior to the date of the preliminary hearing, whichever occurs first, has not acknowledged paternity by amending the original birth certificate record filed with the local registrar's office in the municipality of birth of the child who is the subject of the adoption proceeding in accordance with birth record amendment procedures, or has not filed an action for paternity in court; or

†††† (7)†† Who is found by the court by clear and convincing evidence pursuant to section 1 of P.L.1995, c.55 (C.9:2-4.1) to have committed an act of sexual assault that resulted in the birth of the child.

†††† c.†††† If personal service of the notice cannot be effected because the whereabouts of a birth parent of the child to be adopted are unknown, the court shall determine that an adequate effort has been made to serve notice upon the parent if the plaintiff immediately prior to or during the placement and not more than nine months prior to the filing of a complaint has:

†††† (1)†† Sent the notice by regular mail and by certified mail return receipt requested, to the parent's last known address;

†††† (2)†† Made a discreet inquiry as to the whereabouts of the missing parent among any known relations, friends and current or former employers of the parent;

†††† (3)†† Unless otherwise restricted by law, made direct inquiries, using the party's name and last known or suspected address, to the local post office, the [Division of Motor Vehicles] Motor Vehicle Commission, county welfare agency, the municipal police department, the Division of State Police, the county probation office, the Department of Corrections, and any social service and law enforcement agencies known to have had contact with the party, or the equivalents in other states, territories or countries.† Failure to receive a response to the inquiries within 45 days shall be a negative response.

†††† d.††† In any case where, within 120 days of the birth of the child or prior to the date of the preliminary hearing, whichever occurs first, the identity of a birth parent cannot be determined or where the known parent of a child is unable or refuses to identify the other parent, and the court is unable from other information before the court to identify the other parent, service on that parent shall be waived by the court.

†††† e.†††† In conducting the hearing required by paragraph (4) of subsection b. of this section, the court shall determine that the surrender is voluntary and that the birth parent knows (1) that the hearing is to surrender birth rights; (2) that the hearing is to permanently end the relationship and all contact between parent and child; (3) that such action is a relinquishment and termination of parental rights and consent on the part of the birth parent to the adoption; and (4) that no further notice of the adoption proceedings shall be provided to the birth parent if the surrender is accepted by the court.

(cf: P.L.1998, c.20, s.1)

 

†††† 3.††† Section 15 of P.L.1951, c.138 (C.30:4C-15) is amended to read as follows:

†††† 15.† Whenever

†††† (a)†† it appears that a court wherein a complaint has been proffered as provided in chapter 6 of Title 9 of the Revised Statutes, has entered a conviction against the parent or parents, guardian, or person having custody and control of any child because of abuse, abandonment, neglect of or cruelty to such child; or

†††† (b)†† (Deleted by amendment, P.L.1991, c.275);

†††† (c)†† it appears that the best interests of any child under the care or custody of the division require that he be placed under guardianship; or

†††† (d)†† it appears that a parent or guardian of a child, following the acceptance of such child by the division pursuant to section 11 or 12 of P.L.1951, c.138 (C.30:4C-11 or 12), or following the placement or commitment of such child in the care of an authorized agency, whether in an institution or in a resource family home, and notwithstanding the reasonable efforts of such agency to encourage and strengthen the parental relationship, has failed for a period of one year to remove the circumstances or conditions that led to the removal or placement of the child, although physically and financially able to do so, notwithstanding the division's reasonable efforts to assist the parent or guardian in remedying the conditions; or

†††† (e)†† the parent has abandoned the child; or

†††† (f)†† the parent of a child has been found by a criminal court of competent jurisdiction to have committed murder, aggravated manslaughter or manslaughter of another child of the parent; to have aided or abetted, attempted, conspired, or solicited to commit such murder, aggravated manslaughter or manslaughter of the child or another child of the parent; or to have committed, or attempted to commit, an assault that resulted, or could have resulted, in the significant bodily injury to the child or another child of the parent; or the parent has committed a similarly serious act which resulted, or could have resulted, in the death or significant bodily injury to the child or another child of the parent; or

†††† (g)†† the parent has been found by clear and convincing evidence to have committed sexual assault which resulted in the birth of the child;

†††† a petition to terminate the parental rights of the child's [parents] parent, setting forth the facts in the case, shall be filed by the division with the Family Part of the Chancery Division of the Superior Court in the county where such child may be at the time of the filing of such petition.† A petition shall be filed as soon as any one of the circumstances in subsections (a) through [(f)] (g) of this section is established, but no later than when the child has been in placement for 15 of the most recent 22 months, unless the division establishes an exception to the requirement to seek termination of parental rights in accordance with section 31 of P.L.1999, c.53 (C.30:4C-15.3). Upon filing [the] a petition to terminate the parental rights of both parents, the division shall initiate concurrent efforts to identify, recruit, process and approve a qualified family to adopt the child.

†††† A petition as provided in this section may be filed by any person or any association or agency, interested in such child in the circumstances set forth in subsections (a) and (f) of this section.† The division shall seek to be joined as a party to a petition filed to terminate the parental rights of a child in the care and custody of the division unless the division has established an exception to the requirement to seek termination of parental rights in accordance with section 31 of P.L.1999, c.53 (C.30:4C-15.3).

(cf: P.L.2004, c.130, s.55)

 

†††† 4.††† This act shall take effect immediately and shall apply to any proceeding concerning custody or visitation for which a final adjudication has not been made as of the effective date.

STATEMENT

 

†††† This bill is to intended to strengthen the right of a victim of sexual assault to make decisions concerning a child born as a result of that assault.† The bill also provides that in these circumstances the sexual assault would constitute grounds for a petition to terminate the rapistís parental rights.† In addition, the bill makes it easier for the court to deny custody of, or visitation with, any child when a parent commits a sex crime.

Custody and Visitation

†††† Currently, N.J.S.A.9:2-4.1 provides that a person convicted of sexual assault, sexual contact, or endangering the welfare of a child shall not be awarded custody of or visitation rights to any minor child, including a minor child who was born as a result of or was the victim of the sexual assault, except upon a showing by clear and convincing evidence that custody or visitation is in the best interest of the child.

†††† This bill would remove the provision concerning conviction of the crime.† Under the bill, custody or visitation could not be awarded to any person if the court finds by clear and convincing evidence that the person committed an act of sexual assault, sexual contact, or endangering the welfare of a child, except upon a showing by clear and convincing evidence that custody or visitation is in the best interest of the child.† Under the bill, the court must also make an additional finding that an award of custody or visitation rights will not endanger the victim.† The bill specifically provides that a criminal conviction is not a prerequisite for a finding by the court that the person committed sexual assault, sexual contact, or endangering the welfare of a child. †Under the bill, the court may make such a finding in the absence of a criminal charge; while a criminal charge is pending; or if the defendant was charged with one of these crimes and subsequently pleads guilty to a lesser offense under a plea bargain.

Termination of Parental Rights

†††† Under current law, set out in N.J.S.A.30:4C-15, the Division of Child Protection and Permanency must file a petition in family court to terminate parental rights under several circumstances, including where a parent has been convicted of certain serious crimes against the child or against another child of the parent.† The bill provides that if the court finds by clear and convincing evidence that the defendant committed sexual assault resulting in the birth of a child, that finding would also constitute grounds for the division to file a petition to terminate the defendantís parental rights.

Notice of Adoption

†††† The bill also amends N.J.S.A.9:3-45, which concerns notice to a parent when another parent wishes to place a child for adoption.† The statute provides that under certain conditions notice is not required.† For example, paragraph (6) of subsection b. of the statute provides that notice need not be given to a presumed father if, within 120 days of the birth of the child or prior to the date of the preliminary hearing, whichever occurs first, the presumed father has not acknowledged paternity or filed an action for paternity. This bill would add a provision that notice need not be given to any person who is found by the court by clear and convincing evidence to have committed an act of sexual assault that resulted in the birth of the child.

†††† The bill also makes several technical changes to update references in N.J.S.A.9:3-45 to the Motor Vehicle Commission and the United States Citizenship and Immigration Services.