[First Reprint]

SENATE, No. 709

 

STATE OF NEW JERSEY

 

INTRODUCED FEBRUARY 15, 1996

 

 

By Senators CAFIERO and EWING

 

 

An Act concerning divorce and revising various sections of the statutory law.

 

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

 

    1. Section 22 of P.L.1981, c.243 (C.2A:4-30.45) is amended to read as follows:

    22. Rules of evidence. In any hearing for the civil enforcement of this act the court is governed by the rules of evidence applicable in a civil court action in the Superior Court. If the action is based on a support order issued by another court a certified copy of the order shall be received as evidence of the duty of support, subject only to any defenses available to an obligor with respect to paternity (section 26) or to a defendant in an action or a proceeding to enforce a foreign money judgment. The determination or enforcement of a duty of support owed to one obligee is unaffected by any interference by another obligee with rights of custody or [visitation] parenting time granted by a court.

(cf: P.L.1981, c.243, s.22)

 

    2. Section 2 of P.L.1990, c.104 (C.2A:34-31.1) is amended to read as follows:

    2. After the issuance of any temporary or permanent order determining custody or [visitation] parenting time of a minor child, a law enforcement officer having reasonable cause to believe that a person is likely to flee the State with the child or otherwise by flight or concealment evade the jurisdiction of the courts of this State may take a child into protective custody and return the child to the parent having lawful custody, or to a court in which a custody hearing


concerning the child is pending.

(cf: P.L.1990, c.104, s.2)

 

    3. Section 3 of P.L.1990, c.104 (C.2A:34-31.2) is amended to read as follows:

    3. Every order of a court involving custody or [visitation] parenting time shall include a written notice, in both English and Spanish, advising the persons affected as to the penalties provided in N.J.S.2C:13-4 for violating that order.

(cf: P.L.1990, c.104, s.3)

 

    4. Section 9 of P.L.1979, c.124 (C.2A:34-36) is amended to read as follows:

    9. a. If the petitioner for an initial decree has wrongfully taken the child from another state or has engaged in similar reprehensible conduct the court may decline to exercise jurisdiction if this is just and proper under the circumstances.

    b. Unless required in the interest of the child, the court shall not exercise its jurisdiction to modify a custody decree of another state if the petitioner, without consent of the person entitled to custody, has improperly removed the child from the physical custody of person entitled to custody or has improperly retained the child after [a visit] the scheduled parenting time has elapsed or other temporary relinquishment of physical custody. If the petitioner has violated any other provision of a custody decree of another state the court may decline to exercise its jurisdiction if this is just and proper under the circumstances.

    c. In appropriate cases a court dismissing a petition under this section may assess, and if not paid enter a judgment against the petitioner for necessary travel and other expenses, including attorneys' fees, incurred by other parties or their witnesses. Payment shall be made to the clerk of the court for remittance to the proper party, or in the event of a judgment shall be collected in accordance with the normal procedures for the collection of judgments.

(cf: P.L.1979, c.124, s.9)

 

    5. Section 10 of P.L.1979, c.124 (C.2A:34-37) is amended to read as follows:

    10. a. Every party in a custody proceeding in his first pleading or in an affidavit attached to that pleading shall give information under oath as to the child's present address, the places where the child has lived within the last 5 years, and the names and present addresses of the persons with whom the child has lived during that period. In this pleading or affidavit every party shall further declare under oath whether:

    (1) He has participated (as a party, witness, or in any other capacity) in any other litigation concerning the custody of the same child in this or any other state;

    (2) He has information of any custody proceeding concerning the child pending in a court of this or any other state; and

    (3) He knows of any person not a party to the proceedings who has physical custody of the child or claims to have custody or [visitation] parenting time rights with respect to the child.

    b. If the declaration as to any of the above items is in the affirmative the declarant shall give additional information under oath as required by the court. The court may examine the parties under oath as to details of the information furnished and as to other matters pertinent to the court's jurisdiction and the disposition of the case.

    c. Each party has a continuing duty to inform the court of any custody proceeding concerning the child in this or any other state of which he obtained information during this proceeding.

(cf: P.L.1979, c.124, s.10)

 

    6. Section 11 of P.L.1979, c.124 (C.2A:34-38) is amended to read as follows:

    11. If the court learns from information furnished by the parties pursuant to section 10 of [this act] P.L.1979, c.124 (C.2A:34-37), or from other sources that a person not a party to the custody proceeding has physical custody the child or claims to have custody or [visitation] parenting time rights with respect to the child, it shall order that person to be joined as a party and to be duly notified of the pendency of the proceeding and of his joinder as a party. If the person joined as a party is outside that State he shall be served with process or otherwise notified in accordance with the provisions of section 6 of [this act] P.L.1979, c.124 (C.2A:34-33).

(cf: P.L.1979, c.124, s.11)

 

    7. N.J.S.2C:13-4 is amended to read as follows:

    2C:13-4. Interference with custody. a. Custody of children. A person, including a parent, guardian or other lawful custodian, is guilty of interference with custody if he:

    (1) Takes or detains a minor child with the purpose of concealing the minor child and thereby depriving the child's other parent of custody or [visitation of] parenting time with the minor child; or

    (2) After being served with process or having actual knowledge of an action affecting marriage or custody but prior to the issuance of a temporary or final order determining custody and [visitation] parenting time rights to a minor child, takes, detains, entices or conceals the child within or outside the State for the purpose of depriving the child's other parent of custody or [visitation] parenting time, or to evade the jurisdiction of the courts of this State;

    (3) After being served with process or having actual knowledge of an action affecting the protective services needs of a child pursuant to Title 9 of the Revised Statutes in an action affecting custody, but prior to the issuance of a temporary or final order determining custody rights of a minor child, takes, detains, entices or conceals the child within or outside the State for the purpose of evading the jurisdiction of the courts of this State; or

    (4) After the issuance of a temporary or final order specifying custody, [visitation or] joint custody rights or parenting time, takes, detains, entices or conceals a minor child from the other parent in violation of the custody or [visitation] parenting time order.

    Interference with custody is a crime of the third degree but the presumption of non-imprisonment set forth in subsection e. of N.J.S.2C:44-1 for a first offense of a crime of the third degree shall not apply. However, if the child is taken, detained, enticed or concealed outside the United States, interference with custody is a crime of the second degree.

    b. Custody of committed persons. A person is guilty of a crime of the fourth degree if he knowingly takes or entices any committed person away from lawful custody when he is not privileged to do so. "Committed person" means, in addition to anyone committed under judicial warrant, any orphan, neglected or delinquent child, mentally defective or insane person, or other dependent or incompetent person entrusted to another's custody by or through a recognized social agency or otherwise by authority of law.

    c. It is an affirmative defense to a prosecution under subsection a. of this section, which must be proved by clear and convincing evidence, that:

    (1) The actor reasonably believed that the action was necessary to preserve the child from imminent danger to his welfare. However, no defense shall be available pursuant to this subsection if the actor does not, as soon as reasonably practicable but in no event more than 24 hours after taking a child under his protection, give notice of the child's location to the police department of the municipality where the child resided, the office of the county prosecutor in the county where the child resided, or the Division of Youth and Family Services in the Department of Human Services;

    (2) The actor reasonably believed that the taking or detaining of the minor child was consented to by the other parent, or by an authorized State agency; or

    (3) The child, being at the time of the taking or concealment not less than 14 years old, was taken away at his own volition and without purpose to commit a criminal offense with or against the child.

    d. It is an affirmative defense to a prosecution under subsection a. of this section that a parent having the right of custody reasonably believed he was fleeing from imminent physical danger from the other parent, provided that the parent having custody, as soon as reasonably practicable:

    (1) Gives notice of the child's location to the police department of the municipality where the child resided, the office of the county prosecutor in the county where the child resided, or the Division of Youth and Family Services in the Department of Human Services; or

    (2) Commences an action affecting custody in an appropriate court.

    e. The offenses enumerated in this section are continuous in nature and continue for so long as the child is concealed or detained.

    f. (1) In addition to any other disposition provided by law, a person convicted under subsection a. of this section shall make restitution of all reasonable expenses and costs, including reasonable counsel fees, incurred by the other parent in securing the child's return.

    (2) In imposing sentence under subsection a. of this section the court shall consider, in addition to the factors enumerated in chapter 44 of Title 2C of the New Jersey Statutes:

    (a) Whether the person returned the child voluntarily; and

    (b) The length of time the child was concealed or detained.

    g. As used in this section, "parent" means a parent, guardian or other lawful custodian of a minor child.

(cf: P.L.1990, c.104, s.1.)

 

    8. 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 1[this act] P.L.1991, c.261 (C.2C:25-28)1 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] parenting time 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] parenting time.

    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] parenting time. The order shall protect the safety and well-being of the plaintiff and minor children and shall specify the place and frequency of [visitation] the parenting time. [Visitation] Parenting time arrangements shall not compromise any other remedy provided by the court by requiring or encouraging contact between the plaintiff and defendant. Orders for [visitation] parenting time may include a designation of a place of [visitation] parenting time away from the plaintiff, the participation of a third party, or supervised [visitation] parenting time.

    (a) The court shall consider a request by a custodial parent who has been subjected to domestic violence by a person with [visitation] parenting time 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] parenting time 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] parenting time 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] parenting time 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) 1[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.]Deleted by amendment P.L.1995, c.242. 1

    (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.

    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.1995, c.242, s.1)

 

    9. 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 [visitation] 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 [visitation] parenting time not based on substantiated abuse; the interaction and relationship of the child with its 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. A parent shall not be deemed unfit unless the parents' 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.1990, c.26, s.2)

 

    10. Section 10 of P.L.1977, c.367 (C.9:3-46) is amended to read as follows:

    10. a. A person who is entitled to notice pursuant to section 9 of P.L.1977, c.367 (C.9:3-45) shall have the right to object to the adoption of his child. A judgment of adoption shall not be entered over an objection of a parent communicated to the court by personal appearance or by letter unless the court finds:

    (1) that the parent has substantially failed to perform the regular and expected parental functions of care and support of the child, although able to do so, or

    (2) that the parent is unable to perform the regular and expected parental functions of care and support of the child and that the parent's inability to perform those functions is unlikely to change in the immediate future.

    The regular and expected functions of care and support of a child shall include the following:

    (a) the maintenance of a relationship with the child such that the child perceives the person as his parent;

    (b) communicating with the child or person having legal custody of the child and [visiting the child] parenting time rights unless [visitation] having parenting time is impossible because of the parent's confinement in an institution, or unless prevented from so doing by the custodial parent or other custodian of the child or a social service agency over the birth parent's objection; or

    (c) providing financial support for the child unless prevented from doing so by the custodial parent or other custodian of the child or a social service agency.

    A parent shall be presumed to have failed to perform the regular and expected parental functions of care and support of the child if the court finds that the situation set forth in paragraph (1) or (2) has occurred for six or more months.

    b. The guardian of a child to be adopted who has not executed a surrender pursuant to section 5 of P.L.1977, c.367 (C.9:3-41) and any other person who has provided care and supervision in his home for the child for a period of six months or one half of the life of the child, whichever is less, in the two years prior to the complaint shall be given notice of the action and in accordance with the Rules of Court shall have standing to object to the adoption, which objection shall be given due consideration by the court in determining whether the best interests of the child would be promoted by the adoption.

(cf: P.L.1993, c.345, s.9)

 

    11. Section 16 of P.L.1983, c.17 (C.9:17-53) is amended to read as follows:

    16.  a. The judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes.

    b. If the judgment or order of the court is at variance with the child's birth certificate, the court shall order that an amendment to the original birth record be made under section 22.

    c. The judgment or order may contain any other provision directed against the appropriate party to the proceeding concerning the duty of support, the custody and guardianship of the child, [visitation] parenting time privileges with the child, the furnishing of bond or other security for the payment of the judgment, the repayment of any public assistance grant, or any other matter in the best interests of the child. The judgment or order may direct the father to pay the reasonable expenses of the mother's pregnancy and postpartum disability, including repayment to an agency which provided public assistance funds for those expenses.

    d. Support judgments or orders ordinarily shall be for periodic payments, which may vary in amount. In the best interests of the child, the purchase of an annuity may be ordered in lieu of periodic payments of support. The court may limit a parent's liability for past support of the child to the proportion of the expenses already incurred that the court deems just.

    e. In determining the amount to be paid by a parent for support of the child and the period during which the duty of support is owed, a court enforcing the obligation of support shall consider all relevant facts, including the:

    (1) Needs of the child;

    (2) Standard of living and economic circumstances of each parent;

    (3) Income and assets of each parent, including any public assistance grant received by a parent;

    (4) Earning ability of each parent, including educational background, training, employment skills, work experience, custodial responsibility for children and the length of time and cost for each parent to obtain training or experience for appropriate employment;

    (5) Need and capacity of the child for education, including higher education;

    (6) Age and health of the child and each parent;

    (7) Income, assets and earning ability of the child;

    (8) Responsibility of the parents for the support of others; and

    (9) Debts and liabilities of each child and parent.

    The factors set forth herein are not intended to be exhaustive. The court may consider such other factors as may be appropriate under the circumstances.

(cf: P.L.1983, c.17, s.16.)

 

    1[12. Section 1 of P.L.1984, c.183 (C.52:27D-9.1) is amended to read as follows:

    1. The Department of Community Affairs shall develop a program which: a. makes grandparents aware of their rights under P.L.1971, c.420 (C.9:2-7.1), which establishes [visitation] parenting time rights for grandparents in cases involving the custody and [visitation of] parenting time with the child, such as divorce cases; and b. informs divorcing parents as to the utility, to the child, of regular and frequent [visitation] parenting time with grandparents.

(cf: P.L.1984, c.183, s.1.)]1

 

    1[13.] 12.1 This act shall take effect immediately.


 

Revises the statutes by changing the term "visitation" to "parenting time."