Bill Text: NJ A3335 | 2022-2023 | Regular Session | Introduced
Bill Title: Establishes rebuttable presumption against granting child custody under certain circumstances; expands best interests factors; adds coercive control to domestic violence definition.
Spectrum: Slight Partisan Bill (Republican 2-1)
Status: (Introduced - Dead) 2022-03-07 - Introduced, Referred to Assembly Judiciary Committee [A3335 Detail]
Download: New_Jersey-2022-A3335-Introduced.html
Sponsored by:
Assemblyman GERRY SCHARFENBERGER
District 13 (Monmouth)
SYNOPSIS
Establishes rebuttable presumption against granting child custody under certain circumstances; expands best interests factors; adds coercive control to domestic violence definition.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning child custody determinations and domestic violence and amending various parts of the statutory law.
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 parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical or emotional abuse by the other parent including, but not limited to, whether the child has expressed or exhibited behavior that suggests that the child fears for their safety or well-being while being in the care of 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. In addition, the court shall consider as a factor clear and convincing evidence that a parent has an improper motive for seeking custody and whether that motive will negatively interfere with that parent's ability to safely and effectively share responsibilities. 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.1997, c.299, s.9)
2. Section 1 of P.L.1995, c.55 (C.9:2-4.1) is amended to read as follows:
1. a. Notwithstanding any provision of law to the contrary, a person convicted of sexual assault under N.J.S.2C:14-2 shall not be awarded the custody of or visitation rights to any minor child, including a minor child who was born as a result of or was the victim of the sexual assault, except upon a showing by clear and convincing evidence that it is in the best interest of the child for custody or visitation rights to be awarded. However, a court that awards such custody or visitation rights to a person convicted of sexual assault under N.J.S.2C:14-2 shall stay enforcement of the order or judgment for at least 10 days in order to permit the appeal of the order or judgment and application for a stay in accordance with the Rules of Court.
b. Notwithstanding any provision of law to the contrary, a person convicted of sexual contact under N.J.S.2C:14-3 or endangering the welfare of a child under N.J.S.2C:24-4 shall not be awarded the custody of or visitation rights to any minor child, except upon a showing by clear and convincing evidence that it is in the best interest of the child for such custody or visitation rights to be awarded. However, a court that awards such custody or visitation rights to a person convicted of sexual contact under N.J.S.2C:14-3 or endangering the welfare of a child under N.J.S.2C:24-4 shall stay enforcement of the order or judgment for at least 10 days in order to permit the appeal of the order or judgment and application for a stay in accordance with the Rules of Court.
c. Except as provided in subsections a. and b. of this section, there shall be a rebuttable presumption that custody or visitation rights of one parent is not in the best interests of the child if there is clear and convincing evidence that:
(1) A parent or child has reasonable cause to believe they are in imminent danger of becoming a victim of domestic violence or an abused or neglected child, caused by the other parent; or
(2) There is alleged domestic violence as defined in section 3 of P.L.1991, c.261 (C.2C:25-19); sexual assault pursuant to N.J.S.2C:14-2; sexual contact pursuant to N.J.S.2C:14-3; or endangering the welfare of a child pursuant to N.J.S.2C:24-4, caused by the other parent, regardless of whether a cause of action has been brought or currently is pending in court.
d. A parent may rebut the presumption that custody or visitation rights is not in the best interests of the child upon a specific finding in writing by the court that the parent does not pose a significant risk of harm to the child and that custody or visitation rights of that parent is in the best interests of the child.
e. If the presumption is not rebutted after the offending parent is advised by the court that the presumption exists, custody or visitation rights shall not be granted to the offending parent.
f. A denial of custody or visitation under this section shall not by itself terminate the parental rights of the person denied visitation or custody, nor shall it affect the obligation of the person to support the minor child.
[d.] g. In any proceeding for establishment or enforcement of such an obligation of support the victim shall not be required to appear in the presence of the obligor and the victim's and child's whereabouts shall be kept confidential.
(cf: P.L.1999, c.424, s.1)
3. Section 3 of P.L.1991, c.261 (C.2C:25-19) is amended to read as follows:
3. As used in this act:
a. "Domestic violence" means the occurrence of one or more of the following acts inflicted upon a person protected under this act by an adult or an emancipated minor:
(1) Homicide N.J.S.2C:11-1 et seq.
(2) Assault N.J.S.2C:12-1
(3) Terroristic threats N.J.S.2C:12-3
(4) Kidnapping N.J.S.2C:13-1
(5) Criminal restraint N.J.S.2C:13-2
(6) False imprisonment N.J.S.2C:13-3
(7) Sexual assault N.J.S.2C:14-2
(8) Criminal sexual contact N.J.S.2C:14-3
(9) Lewdness N.J.S.2C:14-4
(10) Criminal mischief N.J.S.2C:17-3
(11) Burglary N.J.S.2C:18-2
(12) Criminal trespass N.J.S.2C:18-3
(13) Harassment N.J.S.2C:33-4
(14) Stalking P.L.1992, c.209 (C.2C:12-10)
(15) Criminal coercion N.J.S.2C:13-5
(16) Robbery N.J.S.2C:15-1
(17) Contempt of a domestic violence order pursuant to subsection b. of N.J.S.2C:29-9 that constitutes a crime or disorderly persons offense
(18) Any other crime involving risk of death or serious bodily injury to a person protected under the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.)
(19) Cyber-harassment P.L.2013, c.272 (C.2C:33-4.1)
(20) "Coercive control" means a pattern of threatening, humiliating, or intimidating actions by an adult or unemancipated minor against a person protected under this act to harm, punish, or frighten, and make the protected person dependent on that adult or unemancipated minor by isolating, exploiting, or regulating the protected person. The term includes, but is not limited to:
(a) isolating the person from the person's friends or family;
(b) controlling the amount of money accessible to the person and how the person spends the money;
(c) monitoring the person's activities, communications, or movements;
(d) frequently engaging in conduct meant to demean, degrade, dehumanize, or embarrass the person;
(e) threatening to cause physical harm to or kill a child or relative of the person;
(f) threatening to publish false information or make false reports to a law enforcement officer or other law enforcement personnel about the person;
(g) damaging the person's property, household goods, or personal effects; and
(h) forcing the person to participate in criminal activity.
When one or more of these acts is inflicted by an unemancipated minor upon a person protected under this act, the occurrence shall not constitute "domestic violence," but may be the basis for the filing of a petition or complaint pursuant to the provisions of section 11 of P.L.1982, c.77 (C.2A:4A-30).
b. "Law enforcement agency" means a department, division, bureau, commission, board or other authority of the State or of any political subdivision thereof which employs law enforcement officers.
c. "Law enforcement officer" means a person whose public duties include the power to act as an officer for the detection, apprehension, arrest and conviction of offenders against the laws of this State.
d. "Victim of domestic violence" means a person protected under this act and shall include any person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present household member or was at any time a household member. "Victim of domestic violence" also includes any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant. "Victim of domestic violence" also includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.
e. "Emancipated minor" means a person who is under 18 years of age but who has been married, has entered military service, has a child or is pregnant or has been previously declared by a court or an administrative agency to be emancipated.
(cf: P.L.2016, c.77, s.1)
4. This act shall take effect immediately and shall apply to cases filed on or after the effective date of this bill.
STATEMENT
This bill provides a rebuttable presumption that awarding child custody or visitations rights in favor of a parent is not in best interests of a child if there is evidence of an alleged incident of domestic violence, sexual assault, sexual contact, or endangering the welfare of a child, caused by that parent, regardless of whether a cause of action has been brought or currently is pending in court. The bill also expands the list of factors taken into account by the court in child custody determinations. In addition, the bill adds coercive control to the definition of domestic violence.
Under section 1 of P.L.1995, c.55 (C.9:2-4.1), a person convicted of sexual assault, criminal sexual contact, or endangering the welfare of a child is not to be awarded the custody of or visitation rights to any minor child, except upon a showing by clear and convincing evidence that it is in the best interest of the child for custody or visitation rights to be awarded. This bill amends this statute to provide that there would be a rebuttable presumption that custody or visitation rights of one parent is not in the best interests of the child if there is clear and convincing evidence that:
(1) a parent or child has reasonable cause to believe they are in imminent danger of becoming a victim of domestic violence or an abused or neglected child, caused by the other parent; or
(2) there is alleged domestic violence, sexual assault, sexual contact, or endangering the welfare of a child, caused by the other parent, regardless of whether a cause of action has been brought or is currently pending in court.
A parent may rebut the presumption that custody or visitation rights is not in the best interests of the child upon a specific finding in writing by the court that the parent does not pose a significant risk of harm to the child and that custody or visitation rights of that parent is in the best interests of the child. If the presumption is not rebutted after the offending parent is advised by the court that the presumption exists, custody or visitation rights are not to be granted to the offending parent.
Under current law, the court makes child custody determinations by applying various statutory factors, such as the history of domestic violence and the safety of the child and the safety of either parent from physical abuse by the other parent, with the best interests of the child as the primary concern. This bill amends N.J.S.9:2-4 to provide that the court take into account the "physical and emotional" safety of the child including, but not limited to, whether the child has expressed or exhibited behavior that suggests that the child fears for his or her safety or well-being while being in the care of the other parent. The court also is required to consider as a factor clear and convincing evidence that a parent has an improper motive for seeking custody and whether the motive will negatively interfere with that parent's ability to safely and effectively share responsibilities.
This bill also adds "coercive control" to the definition of domestic violence. The "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.) defines "domestic violence" as the occurrence of one or more of the enumerated acts set forth in section 3 of P.L.1991, c.261 (C.2C:25-19) upon a person protected under the act.
The bill defines "coercive control" as a pattern of threatening, humiliating, or intimidating actions by an adult or unemancipated minor, which are used to harm, punish, or frighten a person protected under this act and make the protected person dependent on that adult or unemancipated minor by isolating, exploiting, or regulating the protected person. The term includes, but is not limited to:
(a) isolating the person from their friends or family;
(b) controlling the amount of money accessible to the person and how the person spends such money;
(c) monitoring the person's activities, communications, or movements;
(d) frequently engaging in conduct meant to demean, degrade, dehumanize, or embarrass the person;
(e) threatening to cause physical harm to or kill a child or relative of the person;
(f) threatening to publish false information or make false reports to a law enforcement officer or other law enforcement personnel about the person;
(g) damaging the person's property, household goods, or personal effects; and
(h) forcing the person to participate in criminal activity.
This bill is modeled upon a Florida law entitled "Greyson's Law."
