S86

An Act concerning child custody, supplementing Title 2A of the New Jersey Statutes and Title 9 of the Revised Statutes and repealing R.S.9:2-4.

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

1. The Legislature finds and declares that: it is the public policy of this State to assure a child of frequent and continuing contact with both parents when the parents live separately or after parental separation or dissolution of marriage; it is in the public interest to encourage parents to endorse the principle of joint physical custody as the preferred custody arrangement when it is in the best interests of a child; the preference for joint physical custody fosters the ability of a child to have frequent contact with both parents; joint physical custody promotes the best interests of a child by ensuring that parents are available to spend time with a child and discourages a child from being alienated or disenfranchised from the child's parents' lives by geographical relocation or through the interference of one parent with the relationship the child enjoys with the other parent; it is in the public interest to establish a clear legislative policy regarding interference with the relationship a child enjoys with both parents following separation or dissolution of marriage by endorsing the principle that, in a custody determination, the rights of both parents are equal and that joint physical custody ensures that the State will abide by this principle while reminding concerned parents of the importance, for a child, of access to both parents.

2. a. There shall be a presumption in a court determination of child custody that an order of joint physical custody is in the best interests of the child. Joint physical custody shall be ordered unless a parent:

(1) disagrees with the court's presumption that an order of joint physical custody is in the best interests of the child as provided in subsection b. of this section; or

(2) is a victim of domestic violence as defined in section 3 of P.L.1991, c.261 (C.2C:25-19) and the perpetrator of the crime or offense involving domestic violence is the other parent as provided in subsection c. of this section.

b. If a parent disagrees with the court's presumption that an order of joint physical custody is in the best interests of the child, the presumption may be rebutted by the parent, if the parent can demonstrate by clear and convincing evidence that an order of joint physical custody is not in the best interests of the child.

c. If a parent is a victim of domestic violence, as defined in section 3 of P.L.1991, c.261 (C.2C:25-19), the court shall presume that an order of joint physical custody is not in the best interests of the child. The presumption may be rebutted by the parent found guilty of a crime or offense involving domestic violence, if the parent can demonstrate by clear and convincing evidence that an order of joint physical custody is in the best interests of the child.

d. If the court determines that joint physical custody is not in the best interests of the child, the court shall enter an order which may include:

(1) sole custody to one parent with appropriate parenting time for the noncustodial parent; or

(2) any other custody arrangement as the court may determine to be in the best interests of the child.

e. If joint physical custody is not ordered, the court's order shall include findings as to why joint physical custody is not in the best interests of the child.

f. As used in this act "joint physical custody" means:

(1) that a child shall reside equally with each parent for specified periods of time. This does not mean that the child is required to reside with each parent for an equal amount of time during any given period; and

(2) that a child's parents shall share decision-making authority and responsibility as to the important decisions affecting the child's welfare.

g. The court, in making a determination of child custody pursuant to this section, shall consider and evaluate the following factors:

(1) The capacity and disposition of the parents and other involved parties to give the child love, guidance and affection;

(2) The capacity and disposition of the parents and other involved parties to continue the education and religious education of the child;

(3) The capacity and disposition of the parents and other involved parties to provide food, clothing and medical care;

(4) The mental and physical health and moral fitness of the parents and other involved parties;

(5) The home, school and community record of the child;

(6) The preference of the child if the court considers the child of sufficient age or maturity to express a preference and if the court determines that the child's preference has not been influenced by either parent or other involved parties;

(7) The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent; and

(8) Any history of or potential for child abuse, spousal abuse or interference of custody.

h. The court shall order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child.

i. In any case in which the parents cannot agree upon a custody arrangement, the court may require each parent to submit a custody plan which the court shall consider in awarding custody.

3. a. When joint physical custody is not ordered, the court may include a restriction prohibiting either parent from relocating if that relocation would unreasonably interfere with the relationship that the child has with the other parent, unless the relocating parent first obtains written consent of the other parent or a court order. No presumption shall arise in favor of or against the relocation request.

b. If a parent wishes to relocate, the relocating parent shall file and serve a notice of intent to relocate upon the other parent. If the other parent does not file and serve a notice of objection to the relocation on the other parent within 90 days of receipt of the notice, such failure to respond shall be evidence of consent and the court may approve the relocation based on the best interests of the child.

c. When contested, the court may approve a parent's request to relocate with the child if the court determines by written findings, after an evidentiary hearing for which notice has been provided to all concerned parties, that the relocation will promote the best interests of the child in accordance with the considerations set forth in subsection d. of this section. The relocating parent has the burden of proof at that evidentiary hearing. If uncontested, the court may approve such request upon written stipulation of the parties, without the requirement of a hearing.

d. In determining whether relocation will promote the best interests of the child, the court shall consider the following:

(1) Whether the child will maintain substantial contact, joys and the rearing of the other parent even if the relocation is approved;

(2) Whether the relocation would improve the general quality of life for the child, giving due consideration to the disruption, if any, caused by the day to day relationship between the parent not relocating and the child;

(3) Each parent's motive in seeking or opposing the relocation;

(4) Whether the costs of transportation or revised parenting time is financially affordable by the parents;

(5) Whether the relocation of either parent will cause an undue burden on the other parent;

(6) Access to extended family support if needed;

(7) Whether there has been any history of sexual or physical abuse;

(8) The impact of the relocation on each parent; and

(9) The impact on the child including whether the relocation is harmful to the health or well-being of the child.

e. Every court order approving a relocation request in accordance with this section shall include a parenting time schedule consistent with the child's best interests.

4. If joint physical custody has been ordered by the court pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill), an order for child support issued pursuant to the provisions of N.J.S.2A:34-23 shall include a provision stating that joint physical custody has been ordered by the court.

5. R.S.9:2-4 is repealed.

6. This act shall take effect on the 30th day after enactment.

STATEMENT

This bill provides for a presumption of joint physical custody in a child custody determination. Joint physical custody shall be ordered unless a parent:

• disagrees with the court's presumption that an order of joint physical custody is in the best interests of the child and rebuts the presumption by demonstrating by clear and convincing evidence that joint physical custody is not in the best interests of the child; or

• is a victim of domestic violence and the perpetrator of the domestic violence is the other parent. The parent found guilty of a crime or offense involving domestic violence can rebut the presumption that joint physical custody is not in the best interest of the child by demonstrating by clear and convincing evidence that joint physical custody is in the best interests of the child.

If the court determines that an order of joint physical custody is not in the best interests of the child, the court shall enter an order which may include sole custody to one parent with appropriate parenting time for the noncustodial parent, or any other custody arrangement as the court may determine to be in the best interests of the child. If joint physical custody is not ordered, the court's order shall include findings as to why joint physical custody is not in the best interests of the child. Under the provisions of the bill "joint physical custody" means that a child shall reside equally with each parent for specified periods of time and that the parents shall share decision-making authority and responsibility as to the important decisions affecting the child's welfare. Joint physical custody does not mean that the child is required to reside with each parent for an equal amount of time during any given period.

The bill provides that the court, in making a determination of child custody, shall consider and evaluate certain delineated factors. The bill also provides that the court shall order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child and, in any case in which the parents cannot agree to a custody arrangement, the court may require each parent to submit a custody plan which the court shall consider in awarding custody.

The bill provides that when joint physical custody is not ordered, the court may include a restriction prohibiting either parent from relocating if that relocation would unreasonably interfere with the relationship that the child has with the other parent. When contested, the court may approve a parent's request to relocate with the child if the court determines, by written findings and after an evidentiary hearing, that the relocation will promote the best interests of the child. If uncontested, the court may approve such request upon written stipulation of the parties, without the requirement of a hearing. No presumption shall arise in favor of or against the relocation request.

The bill sets forth factors for the court's consideration in determining whether relocation will promote the best interests of the child.

The bill provides that if joint physical custody is ordered by the court, any child support order issued pursuant to N.J.S.A.2A:34-23 shall include a provision stating that joint physical custody has been ordered by the court.

Finally, the bill repeals R.S.9:2-4 which provides for the types of custody arrangements a court can order when a child's parents have separated or dissolved their marriage, as the provisions of that section are replaced by this bill.