ASSEMBLY, No. 1186

 

STATE OF NEW JERSEY

 

 

PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION

 

 

By Assemblywoman WEINBERG and Assemblyman DALTON

 

 

An Act concerning family violence and supplementing P.L.1991, c.261 (C.2C:25-17 et seq.).

 

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

 

    1. This act shall be known and may be cited as the "Post-Separation Family Violence Relief Act."

 

    2. The Legislature finds and declares that: the problems associated with family violence do not cease when the parties involved are legally separated, divorced or no longer live together. In fact, the violence often escalates and child custody and visitation rights become the forum for the continuation of abuse. Current laws relative to custody and visitation issues are based on the assumption that divorcing parents or parents who no longer live together are in relatively equal positions to provide for the care of their children and to act in their best interest. These laws are also based on the assumption that children have a right to frequent and continuing contact with both parents after the parents are separated or divorced. However, family violence can make this principle unworkable and damaging to the children whose rights the laws are trying to protect. Custody and visitation rights are often granted without adequate evaluation or supervision to parents who have committed acts of physical or sexual abuse or who have killed a child's other parent or siblings. Additionally, parents who have been abused and suffer the effects of that abuse often are denied custody. As a result, these laws often work against families with a history of violence, where the protection of the children and the abused parent is of the utmost importance.

    Therefore, it is in the best interest of the State to develop standards for child custody and visitation issues that take into account the unique dynamics of a family victimized by family violence.

 

    3. As used in this act:

    "Abused parent" means a parent who is or has been subjected to domestic violence as defined in section 3 of P.L.1991, c.261 (C.2C:25-19 et seq.).

    "Abusive parent" means a child's natural, adoptive or step-parent who has a history of committing acts of family violence.

    "Court" means the Family Part of the Chancery Division of the Superior Court.

    "Family violence" means an occurrence of one or more acts, as defined in section 3 of P.L.1991, c.261 (C.2C:25-19), upon a person protected under that act or the occurrence of one or more substantiated acts of child abuse as defined in subsections a., b. or c. of section 2 of P.L.1971, c.437 (C.9:6-8.9) upon a child protected under that act. Family violence shall not include reasonable acts committed by a parent in self-defense or to protect a child, from the violence of another person.

    "Supervised visitation" means court-ordered contact between an abusive parent and a child, which occurs in the presence of a qualified person appointed by the court to monitor the contact for any sign of physical abuse, sexual abuse, threats or intimidation, or to prevent the abduction of either the abused parent or the child.

    "Treatment program" means a course of evaluation and psychiatric and psychological services provided by a community-based agency for individuals who have committed an act of family violence as defined by this act. At least one full-time staff member of the program shall be licensed by the State in the practice of psychiatry, psychology or social work. The staff of the treatment program shall also have current and demonstrable training and experience working with perpetrators and victims of family violence.

 

    4. a. The court shall not award sole or joint custody of a child to an abusive parent as defined in this act, unless it can be shown by clear and convincing evidence that:

    (1) the parent has been evaluated by a treatment program for danger to the child or abused parent;

    (2) the parent is not abusing alcohol or other drugs; and

    (3) the best interest of the child requires the participation of the abusive parent as a custodial parent.

    b. If both parents are each seeking sole custody of the child and the court finds that both parents have committed acts of family violence, the court should consider the comparative extent of the injuries inflicted by each party, the history of family violence involving the parties and any other relevant factors, including any steps taken by each parent to correct or minimize the use of violence. The court may award sole custody to the parent who is less likely to continue to engage in acts of family violence and has been evaluated by a treatment program; except that the court may award sole custody of the child to a suitable third person, who shall serve as the child's guardian, if the court finds that the parents are likely to continue to engage in acts of family violence and it is in the best interest of the child.

    c. The court shall not award sole or joint custody to an abusive parent who has committed or has been indicted for an act of sexual assault against his child as defined by the provisions of N.J.S.2C:14-2 et seq. or any other crime which results in the death or permanent physical or mental disability of a family member.

    d. The court shall not award sole or joint custody to an abusive parent who has committed or has been indicted for an act of sexual assault against a child as defined by the provisions of N.J.S.2C:14-2 et seq. or any other crime which results in the death or permanent physical or mental disability of a victim.

    e. The court shall not condition the awarding of sole or joint custody on the grounds that an abused parent suffers from the effects of family violence.

 

    5. a. The court shall not grant supervised visitation between a child and the abusive parent, unless it can be shown by clear and convincing evidence that:

    (1) the parent has been evaluated by a treatment program for danger to the child or the abused parent;

    (2) the parent is not abusing alcohol or any other drugs; and

    (3) supervised visitation is in the best interest of the child.

    b. At the request of the abused parent, the monitor appointed by the court to supervise visitation between the abusive parent and the child shall be a family member or friend, a law enforcement official, a therapist or other competent professional. The court-appointed monitor shall not be a relative, friend, therapist or associate of the abusive parent.

    c. Supervised visitation shall not be conducted overnight or in the home of the abusive parent.

 

    6. a. The court shall not grant unsupervised visitation to an abusive parent, unless it can be shown by clear and convincing evidence that:

    (1) the parent has been evaluated by a treatment program for danger to the child or the abused parent;

    (2) the parent is not abusing alcohol or any other drugs; and

    (3) such visitation is in the best interest of the child.

    b. At the request of the abused parent, the court shall suspend unsupervised visitation between the child and the abusive parent, upon an application not found by the court to be arbitrary and capricious.

    c. If a parent has been indicted for an act of sexual assault against a child as defined by the provisions of N.J.S.2C:14-2 et seq. or any other crime which results in the death or permanent physical or mental disability of a family member, the court shall prohibit visitation between the parent and that child until the resolution of the indictment.

    d. A court appointed guardian who has been granted sole custody of a child pursuant to the provisions of subsection b. of section 4 of this act shall not allow the parents to visit the child, except as ordered by the court.

 

    7. If the court finds that a parent has committed an act of family violence, the abused parent shall not be ordered to participate in mediation on the issues of child custody or visitation.

 

    8. Notwithstanding any law to the contrary, the court shall order the parent who has committed an act of family violence to pay all court costs, expert's fees and reasonable attorney fees incurred as a result of the act of family violence. The court shall also order the parent to pay the costs for any evaluation and the medical and psychological care of the abused parent and the child incurred as a result of the act of family violence.

 

    9. This act shall take effect immediately.

 

 

 

Designated the "Post-Separation Family Violence Relief Act."