S4193

An Act prohibiting the court from awarding custody of a child based solely on a parent’s disability, amending R.S.9:2-4, and supplementing Title 9 of the Revised Statutes.

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

1. R.S.9:2-4 is amended to read as follows:

9:2-4. The Legislature finds and declares that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.

In any proceeding involving the custody of a minor child, the rights of both parents shall be equal and the court shall enter an order which may include:

a. Joint custody of a minor child to both parents, which is comprised of legal custody or physical custody which shall include: (1) provisions for residential arrangements so that a child shall reside either solely with one parent or alternatively with each parent in accordance with the needs of the parents and the child; and (2) provisions for consultation between the parents in making major decisions regarding the child's health, education and general welfare;

b. Sole custody to one parent with appropriate parenting time for the noncustodial parent; or

c. Any other custody arrangement as the court may determine to be in the best interests of the child.

In making an award of custody, the court shall consider but not be limited to the following factors: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with [its] the child’s parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children. The disability of one or both parents, as defined by subsection e. of section 2 of P.L. c. (pending before the Legislature as this bill), shall not be the sole factor in the court’s decision concerning child custody. A parent shall not be deemed unfit unless the [parents'] parent’s conduct has a substantial adverse effect on the child.

The court, for good cause and upon its own motion, may appoint a guardian ad litem or an attorney or both to represent the minor child's interests. The court shall have the authority to award a counsel fee to the guardian ad litem and the attorney and to assess that cost between the parties to the litigation.

d. 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.

e. 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.

f. The court shall specifically place on the record the factors which justify any custody arrangement not agreed to by both parents.

(cf: P.L.1997, c.299, s.9)

2. (New section) a. In any proceeding involving the custody of or visitation with a minor child, the disability of a parent is relevant only to the extent, based on evidence in the record, the court finds that the disability is detrimental to the best interest of the child.

b. The parent alleging that the disability of the other parent is detrimental to the best interest of the child is required to show, by clear and convincing evidence, that the disability of the other parent is detrimental to the best interest of the child.

c. If the burden of proof is met, the parent with a disability shall have the opportunity to show that supportive parenting services would prevent a finding that the disability is detrimental to the best interest of the child.

d. If the court finds that the disability of a parent is detrimental to the best interest of the child and denies or limits custody or visitation, the court shall specifically state in writing:

(1) the basis for the finding; and

(2) the reason that the provision of supportive parenting services is not a reasonable accommodation to prevent the finding.

e. As used in this section:

“disability” has the meaning set forth in section 3 of the “Americans with Disabilities Amendments Act of 2008,” 42 U.S.C. s.12102.

“supportive parenting services” means appropriate family-based services, supports, and other reasonable modifications that would provide a parent with a disability a full and equal opportunity to maintain or restore custody of, or maintain, restore, or increase visitation with, the child. These services, supports, and other modifications may include adaptive equipment to maintain, increase, or strengthen the parenting capabilities of the parent with a disability and the provision of other accommodations and adaptive services.

3. This act shall take effect immediately.

STATEMENT

This bill provides for the protection of the custody and visitation rights of parents with a disability.

New Jersey recognizes that both parents in a child custody dispute have a constitutionally recognized equal, fundamental right to the control and upbringing of a child. The courts make the determination on custody arrangements by applying various statutory factors, such as the interaction of the child with the child’s parents and the stability of the home environment, with the best interests of the child as the primary concern.

This bill provides that in any child custody proceeding, the disability of one or both parents shall not be the sole factor in the court’s decision concerning child custody. The bill also provides that in any custody or visitation proceeding, the disability of a parent is relevant only to the extent that the court finds, by clear and convincing evidence, that the disability is detrimental to the best interest of the child. If the burden of proof is met by the parent alleging that the disability of the other party is detrimental to the best interest of the child, the parent with a disability has the opportunity to provide evidence that supportive parenting services would prevent a finding that the disability is detrimental to the best interest of the child. If the court finds that the disability of a parent is detrimental to the best interest of the child and denies or limits custody or visitation, the court is required to provide for the basis of denying or limiting custody or visitation in writing. The court would also be required to state in writing the reason that the provision of supportive parenting services would not be a reasonable accommodation to prevent the finding.

The bill defines “supportive parenting services” as appropriate family-based services, supports, and other reasonable modifications that would provide a parent with a disability a full and equal opportunity to maintain or restore custody of, or maintain, restore, or increase visitation with, the child. These services, supports, and other modifications may include adaptive equipment to maintain, increase, or strengthen the parenting capabilities of the parent with a disability and the provision of other accommodations and adaptive services.