SENATE, No. 65
STATE OF NEW JERSEY
PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION
By Senators CAFIERO and EWING
An Act concerning divorce, supplementing Title 2A of the New Jersey Statutes and amending P.L.1991, c.261.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) This act shall be known and may be cited as the "Mandatory Parenting Plan Act."
2. (New section) a. The Legislature finds and declares that by requiring parties in a divorce proceeding to file a parenting plan the State would be assisting these individuals in developing a restructured family which would meet the needs of all the members of the family. The parenting plan would provide for the minor children's physical care, maintain the minor children's emotional stability, and provide for the minor children's changing needs as he or she develops, in a manner which minimizes the need for future modifications to the parenting plan.
b. The Legislature further finds that by setting forth the authority and responsibilities of each party with respect to the minor children, the parties would be encouraged to fulfill their parenting responsibilities through agreements in the parenting plan rather than by relying on judicial intervention. The Legislature further finds that setting forth the responsibilities of the parents would assure the minor children of frequent and continuing contact with both parents after the parents have separated or divorced. Furthermore, participation and cooperation by both parties in the minor children's activities would minimize the minor children's exposure to harmful parental conflict and would provide both parties with equal access to the minor children.
3. (New section) a. Each party in an action for divorce, nullity or separate maintenance, where the custody, visitation or support of a minor child is an issue, shall file a parenting plan within 75 days after service of the complaint.
b. The parenting plan shall determine procedures for the day-to-day care of the minor child. The plan shall also determine procedures for transporting the minor child from one parent to the other parent at the start and conclusion of visitation. Consideration shall be given to the minor child's age and developmental needs. The plan shall include a schedule which designates the time the minor child shall spend with each parent on a weekly basis and on special occasions including, but not limited to, specified religious and secular holidays, birthday and vacations. The plan shall specify how major decisions regarding the minor child's education, health care, and religious upbringing will be made. Regardless of the allocation of the decision making in the parenting plan, the parties shall authorize emergency medical procedures in situations affecting the immediate health of the child.
c. The parenting plan shall address only issues regarding parenting functions. Other issues included, but not limited to, property division and financial issues or child support, shall be specifically excluded from the parenting plan.
d. Within 45 days from the date the parenting plan was to be filed, the parties are required to file a mutually agreed upon parenting plan, except where a temporary or final restraining order has been issued pursuant to the "Prevention of Domestic Violence Act," P.L. 1991, c.261 (C. 2C:25-17 et seq.). If a mutually agreed upon parenting plan cannot be achieved by the parties, the parties may be referred to mediation. If a parenting plan cannot be achieved through mediation, the matter shall be referred to the court for disposition.
e. The court may modify or suspend a parenting plan when an allegation of domestic violence has been proven. The court may also modify or suspend a parenting plan if, after considering the special circumstances surrounding the case, adherence to the plan would not be in the best interest of the child. The court shall issue written findings of fact and an explanation of the reasons for modifying or suspending the plan.
f. The court shall make available to each party a "parenting plan kit" which shall include a sample parenting plan.
4. Section 12 of P.L.1991, c.261 (C.2C:25-28) is amended to read as follows:
12. a. A victim may file a complaint alleging the commission of an act of domestic violence with the Family Part of the Chancery Division of the Superior Court in conformity with the rules of court. The court shall not dismiss any complaint or delay disposition of a case because the victim has left the residence to avoid further incidents of domestic violence. Filing a complaint pursuant to this section shall not prevent the filing of a criminal complaint for the same act.
On weekends, holidays and other times when the court is closed, a victim may file a complaint before a judge of the Family Part of the Chancery Division of the Superior Court or a municipal court judge who shall be assigned to accept complaints and issue emergency, ex parte relief in the form of temporary restraining orders pursuant to this act.
A plaintiff may apply for relief under this section in a court having jurisdiction over the place where the alleged act of domestic violence occurred, where the defendant resides, or where the plaintiff resides or is sheltered, and the court shall follow the same procedures applicable to other emergency applications. Criminal complaints filed pursuant to this act shall be investigated and prosecuted in the jurisdiction where the offense is alleged to have occurred. Contempt complaints filed pursuant to N.J.S.2C:29-9 shall be prosecuted in the county where the contempt is alleged to have been committed and a copy of the contempt complaint shall be forwarded to the court that issued the order alleged to have been violated.
b. The court shall waive any requirement that the petitioner's place of residence appear on the complaint.
c. The clerk of the court, or other person designated by the court, shall assist the parties in completing any forms necessary for the filing of a summons, complaint, answer or other pleading.
d. Summons and complaint forms shall be readily available at the clerk's office, at the municipal courts and at municipal and State police stations.
e. As soon as the domestic violence complaint is filed, both the victim and the abuser shall be advised of any programs or services available for advice and counseling.
f. A plaintiff may seek emergency, ex parte relief in the nature of a temporary restraining order. A municipal court judge or a judge of the Family Part of the Chancery Division of the Superior Court may enter an ex parte order when necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought.
g. If it appears that the plaintiff is in danger of domestic violence, the judge shall, upon consideration of the plaintiff's domestic violence complaint, order emergency ex parte relief, in the nature of a temporary restraining order. A decision shall be made by the judge regarding the emergency relief forthwith.
h. A judge may issue a temporary restraining order upon sworn testimony or complaint of an applicant who is not physically present, pursuant to court rules, or by a person who represents a person who is physically or mentally incapable of filing personally. A temporary restraining order may be issued if the judge is satisfied that exigent circumstances exist sufficient to excuse the failure of the applicant to appear personally and that sufficient grounds for granting the application have been shown.
i. An order for emergency, ex parte relief shall be granted upon good cause shown and shall remain in effect until a judge of the Family Part issues a further order. Any temporary order hereunder is immediately appealable for a plenary hearing de novo not on the record before any judge of the Family Part of the county in which the plaintiff resides or is sheltered if that judge issued the temporary order or has access to the reasons for the issuance of the temporary order and sets forth in the record the reasons for the modification or dissolution. The denial of a temporary restraining order by a municipal court judge and subsequent administrative dismissal of the complaint shall not bar the victim from refiling a complaint in the Family Part based on the same incident and receiving an emergency, ex parte hearing de novo not on the record before a Family Part judge, and every denial of relief by a municipal court judge shall so state.
j. Emergency relief may include modifying a parenting plan submitted to the court pursuant to section 3 of P.L. c. (C. ) (now pending before the Legislature as section 3 of this bill), forbidding the defendant from returning to the scene of the domestic violence, forbidding the defendant to possess any firearm or other weapon enumerated in subsection r. of N.J.S.2C:39-1, ordering the search for and seizure of any such weapon at any location where the judge has reasonable cause to believe the weapon is located and any other appropriate relief. The judge shall state with specificity the reasons for and scope of the search and seizure authorized by the order.
k. The judge may permit the defendant to return to the scene of the domestic violence to pick up personal belongings and effects but shall, in the order granting relief, restrict the time and duration of such permission and provide for police supervision of such visit.
l. An order granting emergency relief, together with the complaint or complaints, shall immediately be forwarded to the appropriate law enforcement agency for service on the defendant, and to the police of the municipality in which the plaintiff resides or is sheltered, and shall immediately be served upon the defendant by the police, except that an order issued during regular court hours may be forwarded to the sheriff for immediate service upon the defendant in accordance with the Rules of Court. If personal service cannot be effected upon the defendant, the court may order other appropriate substituted service. At no time shall the plaintiff be asked or required to serve any order on the defendant.
m. (Deleted by amendment, P.L.1994, c.94.)
n. Notice of temporary restraining orders issued pursuant to this section shall be sent by the clerk of the 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 or court.
o. (Deleted by amendment, P.L.1994, c.94.)
p. Any temporary or permanent restraining order issued pursuant
to this act shall be in effect throughout the State, and shall be enforced by all law enforcement officers.
(cf: P.L. 1994, c.94, s.4)
5. 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 this act 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 visitation 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 visitation.
b. In proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse. 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 visitation. The order shall protect the safety and well-being of the plaintiff and minor children and shall specify the place and frequency of visitation. Visitation arrangements shall not compromise any other remedy provided by the court by requiring or encouraging contact between the plaintiff and defendant. Orders for visitation may include a designation of a place of visitation away from the plaintiff, the participation of a third party, or supervised visitation.
(a) The court shall consider a request by a custodial parent who has been subjected to domestic violence by a person with visitation 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 visitation 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 visitation 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 visitation 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 Violent Crimes Compensation Board for any and all compensation paid by the Violent Crimes 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, at the court's discretion 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.
(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) An order which permits the victim and the defendant to occupy the same premises but limits the defendant's use of that premises, but only if it is documented by the judge granting the order that:
(a) The plaintiff specifically and voluntarily requests such an order; and
(b) The judge determines that the request is made voluntarily and with the plaintiff's knowledge that the order may not provide the same protection as an order excluding the defendant from the premises and with the plaintiff's knowledge that the order may be difficult to enforce; and
(c) Any conditions placed upon the defendant in connection with the continued access to the premises and any penalties for noncompliance with those conditions shall be explicitly set out in the order and shall be in addition to any other remedies for noncompliance available to the victim.
(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) An order prohibiting the defendant from possessing any firearm or other weapon enumerated in subsection r. of N.J.S.2C:39-1 and ordering the search for and seizure of any such 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.
(19) An order modifying the parenting plan filed with the court pursuant to section 3 of P.L. c. (C. ) (now pending before the Legislature as section 3 of this bill). The order shall protect the safety and well being of the spouse and the minor children. The court may consider suspension of the parenting plan and hold an emergency hearing upon application made by the plaintiff certifying under oath that the defendant's access to the child pursuant to the parenting plan has threatened the safety and well-being of the child.
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.
(cf: P.L.1994, c.137, s.2)
6. The Supreme Court of New Jersey may adopt Rules of Court appropriate or necessary to effectuate the purpose of this act.
7. This act shall take effect immediately.
Requires each party in a divorce action to file a parenting plan.