Bill Text: NJ S1151 | 2012-2013 | Regular Session | Introduced
Bill Title: Establishes "Monica's Law" concerning domestic violence risk assessment pilot program.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-01-23 - Introduced in the Senate, Referred to Senate Judiciary Committee [S1151 Detail]
Download: New_Jersey-2012-S1151-Introduced.html
Sponsored by:
Senator LORETTA WEINBERG
District 37 (Bergen)
SYNOPSIS
Establishes "Monica's Law" concerning domestic violence risk assessment pilot program.
CURRENT VERSION OF TEXT
As introduced.
An Act establishing "Monica's Law" concerning a domestic violence risk assessment pilot program, amending P.L.1991, c.261, P.L.2003, c.225, P.L.2005, c.204, R.S.43:21-5 and supplementing Title 2B of the New Jersey Statutes.
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 "Domestic Violence Risk Assessment Pilot Program."
2. (New section) The Legislature finds and declares that:
a. The incidence of domestic violence has far reaching and lasting impact affecting not only the victims of the violence but the children in the household who are exposed, directly or indirectly, to family violence as well;
b. Protecting the victim's health, safety, and welfare is in the best interest of the children of the victim of domestic violence;
c. Acts of violence committed against a child who is the offspring of a victim of domestic violence is, like the domestic violence act, an escalating problem in the State and across the nation, placing these children at a risk of serious injury or death;
d. The actual incidence of violence is likely higher than reported for various reasons, including that victims under-report incidents out of fear of reprisal, isolation and embarrassment;
e. Preventing retaliatory violence against the child of a domestic violence victim is essential for protecting and preserving the life of these young victims;
f. Indicators of retaliatory violence against the child of the victim and the actor are in existence and should be further developed and used or applied to determine the likelihood that a domestic violence actor will commit an act of violence against a child of a domestic violence victim.
3. (New section) a. The Administrative Offices of the Court shall establish a pilot program in Essex and Passaic counties, the purpose of which shall be to impose a mandatory risk assessment requirement, prior to issuing an award of visitation, in all cases where a final domestic violence restraining order has been issued and where the actor and the victim have a child in common and enumerated risk factors are present.
b. The Administrative Office of the Courts shall develop a questionnaire to be completed by a domestic violence complainant in accordance with section 4 of P.L. , c. (C. ) (pending before the Legislature as section 4 of this bill). The Administrative Office of the Courts may solicit input from other agencies and community organizations with an expertise in domestic violence. The questionnaire shall be made available in English and Spanish language versions. The questionnaire shall include but will not be limited to questions on the following topics: use of a weapon; use of threats of physical harm; and fear for the safety of the victim or the victim's family.
For purposes of this section, a "risk assessment" means an assessment of the likelihood that the person against whom the final restraining order is issued will commit an act of violence against the victim or against the child which the actor and the victim have in common, performed by the following qualified, licensed professionals: a licensed psychiatrist, a licensed psychologist, a licensed social worker a licensed family therapist, a licensed professional counselor, a domestic violence specialist or an employee within the Administrative Office of the Court who by professional qualification and specialized training is qualified to administer risk assessment.
4. (New section) A domestic violence complainant shall, at the time of the filing of the complaint, complete a questionnaire developed pursuant to section 3 of P.L. ,c. (C. ) (pending before the Legislature as section 3 of the bill) to determine the following specific data:
a. Whether the person against whom the domestic violence complaint is filed has a child or children in common with the victim;
b. Whether the person against whom the domestic violence complaint is filed has ever used or threatened to use a weapon against the victim or any child;
c. Whether the person against whom the domestic violence complaint is filed has ever threatened to kill the victim or any child;
d. Whether the victim believes the person against whom the domestic violence complaint is filed would attempt to kill or to cause serious bodily harm to the victim or any child;
e. Whether the victim believes the person against whom the domestic violence complaint is filed would abduct the victim or any child;
f. Whether the person against whom the domestic violence complaint is filed has ever previously harmed or threatened to cause physical or emotional harm or neglect to a child;
g. Whether the person against whom the domestic violence complaint is filed has ever physically harmed the plaintiff, including such acts as choking or suffocating the plaintiff;
h. Whether the person against whom the domestic violence complaint is filed has ever sexually assaulted the plaintiff;
i. Whether the plaintiff wants the person against whom the domestic violence complaint is filed to undergo a risk assessment.
5. (New section) a. The completed questionnaire shall be attached to the domestic violence complaint and shall be considered by the court hearing the domestic violence matter in order to determine the presence of risk factors necessitating a risk assessment.
b. In addition to any other relief granted pursuant to section 13 of P.L.1991, c.261 (C.2C:25-29) a risk assessment as defined in subsection c. of this section shall be ordered by the court in all cases where:
(1) the defendant, in the course of committing the act of domestic violence, used or threatened to use a weapon on the plaintiff or on a child;
(2) the defendant, in the course of committing the act of domestic violence, threatened to kill the plaintiff or a child;
(3) the plaintiff has expressed a belief that the defendant will attempt to kill her or a child;
(4) the defendant has previously harmed or threatened to cause physical or emotional harm or neglect to a child;
(5) The plaintiff has expressed the belief that the defendant will attempt to abduct a child;
(6) The defendant has physically harmed the plaintiff, including such acts as choking or suffocating the plaintiff;
(7) The defendant has sexually assaulted the plaintiff; or
(8) In other circumstances as may be determined by the Director of the Administrative Office of the Courts, in consultation with other public and private groups with an expertise in the prevention of domestic violence or the prevention of child abuse.
c. The Director of the Administrative Office of the Courts, in consultation with public and private groups with an expertise in the prevention of domestic violence or the prevention of child abuse shall establish a separate, standardized risk assessment tool, which may be augmented with additional questions by an individual risk assessor, for:
(1) the defendant in the domestic violence matter;
(2) the plaintiff in the domestic violence matter;
(3) an age appropriate risk assessment for any child the defendant and the plaintiff have in common.
6. (New section) A risk assessment shall be mandatory in cases where there has been a violation of a final domestic violence restraining order. A risk assessment is mandatory in cases where the court makes a determination of parenting time subsequent to a complaint of domestic violence against one of the parents seeking parenting time.
7. (New section) A qualified applicant for a risk assessor certification shall be a licensed professional who is trained as defined in sections 9, 10 and 11 of P.L. c. (C. ) (pending before the Legislature as sections 9, 10 and 11 of this bill) and who is:
a. a licensed psychiatrist;
b. a licensed psychologist;
c. a licensed social worker;
d. a licensed family therapist;
e. a licensed professional counselor;
f. a domestic violence specialist; or
g. an employee of the Administrative Office of the Courts who by professional qualification and specialized training is qualified to administer risk assessment.
8. (New section) The Administrative Office of the Courts may direct a court employee to perform a risk assessment at no charge if:
a. the defendant establishes that he cannot afford the cost of a risk assessment for himself, the plaintiff in the domestic violence matter, and any child which they share in common;
b. there are no qualified licensed health professionals described in section 7 of P.L. c. (C. ) (pending before the Legislature as section 7 of this bill) reasonably available to perform a risk assessment who has completed the required domestic violence risk assessment training which is set forth in sections 9, 10 and 11 of P.L. c. (C. ) (pending before the Legislature as sections 9, 10 and 11 of this bill);
c. the court employee has completed the required domestic violence risk assessment training; and
d. the court employee has knowledge of the psychological and developmental needs of children and parent-child relationships and any other qualification the court deems necessary.
9. (New section) A qualified risk assessor shall complete 12 hours of basic instruction within a 12-month period, which shall include, but which shall not be limited to:
a. the effects of domestic violence on children;
b. the nature and extent of domestic violence;
c. the social and family dynamics of domestic violence;
d. techniques for identifying and assisting families affected by domestic violence;
e. the availability and use of domestic violence risk measurement tools;
f. interviewing, documentation of, and appropriate recommendations for families affected by domestic violence;
g. the legal rights of, and remedies available to, victims;
h. the availability of community and legal domestic violence resources; and
i. the availability of community resource networking intended to familiarize the qualified risk assessor with domestic violence resources in the geographical area where the family being assessed resides.
10. (New section) A qualified risk assessor shall also complete 16 hours of advanced training within the first year following the completion of the basic instruction, which shall include, but is not limited to, the appropriate structuring of the parenting time evaluation process including, but not limited to, all of the following:
a. maximizing safety for clients, evaluators, and court personnel;
b. maintaining objectivity;
c. gathering and providing balanced information from the parties and controlling for bias;
d. providing separate sessions at separate times to ensure that the plaintiff and the defendant in the domestic violence case do not come within proximity of each other;
e. evaluating the impact of the risk assessment and recommendations with particular attention to the dynamics of domestic violence;
f. relevant section of laws, rules, or regulations; and
g. the range, availability, and applicability of domestic violence resources available to victims including, but not limited to, all of the following: domestic violence service programs; counseling, including drug and alcohol counseling; legal assistance; job training; parenting classes; and resources for immigrant domestic violence victims.
h. the range, availability, and applicability of domestic violence intervention available to perpetrators, including, but not limited to, all of the following: batterer intervention and treatment programs; drug and alcohol counseling; legal assistance; job training and parenting classes;
i. the unique issues present in a family and psychological assessment in a domestic violence case, including but not limited to the following: the effects of exposure to domestic violence and psychological trauma on children, the relationship between child physical abuse, child sexual abuse, and domestic violence, the differential family dynamics related to parent-child attachments in families with domestic violence, intergenerational transmission of familial violence, and manifestations of post-traumatic stress disorders in children; the nature and extent of domestic violence, and the relationship of gender, class, race, culture, and sexual orientation to domestic violence; current legal, psychosocial, public policy, and mental health research related to the dynamics of family violence, the impact of victimization, the psychology of perpetration, and the dynamics of power and control in battering relationships; the assessment of family history based on the type, severity, and frequency of violence; the impact of being a perpetrator of domestic violence has on parenting abilities; the uses and limitations of psychological testing and psychiatric diagnosis in assessing parenting abilities in domestic violence cases; the influence of alcohol and drug use and abuse on the incidence of domestic violence; understanding the dynamics of and differences between high conflict relationships and relationships between an abuser and victim; the importance of and procedures for obtaining collateral information from a probation department, children's protective services, a police incident report, a pleading regarding a restraining order, medical records, a school, and other relevant sources; accepted methods for structuring safe and enforceable parenting time and parenting plans that ensure the health, safety, welfare, and best interest of the child, and safeguards for the parties; understanding that the protection of the mother's health, safety, and welfare is in the best interest of the child; the importance of discouraging participants in parenting matters from blaming victims of domestic violence for the violence and from minimizing allegations of domestic violence, child abuse, or abuse against a family member; the uses and limitations of psychological testing and psychiatric diagnosis in predicting perpetrator recidivism and dangerousness;
j. a knowledge of the issues surrounding child sexual abuse, which shall include but not limited to the following: children's patterns of hiding and disclosing sexual abuse occurring in a family setting; the effects of sexual abuse on children; the nature and extent of child sexual abuse; the social and family dynamics of child sexual abuse; techniques for identifying and assisting families affected by child sexual abuse; legal rights, protections, and remedies available to victims of child sexual abuse; and
k. knowledge of the standards for collecting and presenting data described in sections 14 through 18 of P.L. , c. (C. ) (pending before the Legislature as sections 14 through 18 of this bill).
11. (New section) Following the completion of advanced risk assessor training the qualified risk assessor shall complete four hours of updated training annually that shall include but not be limited to the following:
a. changes in local court practices, case law, and state and federal legislation related to domestic violence;
b. an update of current social science research and theory including the impact of exposure to domestic violence on children;
c. a knowledge of the availability and utilization of new Domestic Violence instruments to measure risk;
d. changes in the range and availability of domestic violence resources available to victims including, but not limited to:
(1) domestic violence service programs;
(2) counseling, including drug and alcohol counseling;
(3) legal assistance;
(4) job training;
(5) parenting classes; and
(6) resources for a victim who is an immigrant;
e. changes in the range and availability of domestic violence intervention resources available to perpetrators including but not limited to:
(1) batterer intervention and treatment programs
(2) drug and alcohol counseling
(3) legal assistance;
(4) job training;
(5) parenting classes.
12. (New section) a. Qualified risk assessors shall be trained by eligible providers. For the purposes of this act, "eligible providers" means educational institutions, professional associations, professional continuing education groups, a court sanctioned organization, and other public or private group with an expertise in prevention of domestic violence and prevention of child abuse issues. Eligible providers will administer the basic training set forth in section 9 of P.L. , c. (C. ) (pending before the Legislature as section 9 of this bill), the advanced training set forth in section 10 of P.L. , c. (C. ) (pending before the Legislature as section 10 of this bill), and the annual updated training set forth in section 11 of P.L. , c. (C. ) (pending before the Legislature as section 11 of this bill). For the purposes of this act a "monitor" means a third party organization with an expertise in domestic violence issues that will oversee eligible providers.
b. Eligible providers shall at a minimum do the following:
(1) ensure that the training instructors or consultants delivering the education and training programs are experts in the subject matter;
(2) monitor and evaluate the quality of courses, curricula, training, instructors, and consultants;
(3) emphasize the importance of focusing parenting time evaluations on the health, safety, welfare, and best interest of the child;
(4) emphasize that the protection of the mother's health, safety, and welfare is in the best interest of the child;
(5) emphasize the negative impact exposure to domestic violence has on children;
(6) develop a procedure to verify that participants complete the education and training program; and
(7) issue, under penalty of perjury, a certificate or statement of completion of the domestic violence training specified in this act to persons who have completed the training. The certificate or statement shall document the number of hours of training offered; the number of hours the person completed; the dates of the training; and the name of the training provider.
c. The monitor shall be selected by the Division on Women. The duties of the monitor shall include:
(1) To ensure that eligible providers meet all of the standards and requirements in this act and, if applicable, possess a license in good standing for the regulated profession involved.
(2) To issue a certificate to all qualified eligible providers which shall be valid for three years.
(3) To provide certification to eligible providers and solicit eligible providers to provide domestic violence training to risk assessors.
(4) To inform educational institutions, professional associations, professional continuing education groups and other public or private group with an expertise in prevention of domestic violence and prevention of child abuse issues about risk assessment training.
(5) To provide the Administrative Office of the Courts with a current list of eligible providers.
d. The Administrative Office of the Courts and the monitor shall determine whether additional qualifications are necessary for an eligible provider to adequately train a qualified risk assessor.
13. (New section) a. A qualified risk assessor shall comply with the applicable notification procedures established by court rule concerning completion of the required training set forth in sections 9, 10 and 11 of P.L. , c. (C. ) (pending before the Legislature as sections 9, 10 and 11 of bill). A qualified risk assessor shall attach copies of their certificates or statements of completion of the basic and advanced instruction and of the most recent annual 4-hour updated training in domestic violence to each completed risk assessment submitted to the court. In addition, each qualified risk assessor must also attach to each completed risk assessment a copy of the eligible provider's certificate where they completed their domestic violence training. Any failure to comply with these requirements are subject to being reported to the appropriate licensing board and local prosecuting authority.
b. The Administrative Office of the Courts shall develop a form, which shall include the qualifications and the training curriculum which must be completed to administer a risk assessment. The form will also include an updated list of "Eligible Providers" and the protocol for presenting and collecting data described in sections 14 through 18 of P.L. , c. (C ) (pending before the Legislature as sections 14 through 18 of this bill). This form shall be available to anyone interested in administering a risk assessment.
c. The Administrative Office of the Courts shall maintain a list of qualified risk assessors.
14. (New section) A qualified risk assessor shall interview both the plaintiff and the defendant in the domestic violence matter separately. The risk assessor will schedule interview times with the two parties to ensure that they will not come in contact with each other.
15. (New section) a. The qualified risk assessor may conduct other interviews as may be necessary to assist in developing an accurate risk assessment. Nothing should preclude the risk assessor from observing parent-child interaction. The risk assessor may also consult with other individuals who may have witnessed relevant events such as: past partners of the defendant, the police, school personnel, child protective services personnel, and medical personnel.
b. The risk assessor shall have access to the following records: court and police records and reports, child protective agency records, medical records, and school records.
16. (New section) The qualified risk assessor shall communicate the results of the analyses and findings of the risk assessment to the court that ordered the risk assessment consistent with ethical and professional standards. This information shall be considered confidential and shall not be considered a public record.
17. (New section) The qualified risk assessor may be permitted to conduct and in-person interview of the children of the parties to the domestic violence matter if in the opinion of the court such interview is deemed necessary.
18. (New section) A qualified risk assessor shall provide information on resources in the geographical area where the parties reside that are available to both parties to the domestic violence complaint; and shall further discuss with both the parties the legal interventions available to ensure the safety of the plaintiff and any children.
19. (New section) Defendants shall be responsible to pay for the costs of all ordered risk assessments except that the court may waive the costs of the risk assessments in cases of financial hardship.
20. (New section) The Administrative Office of the Courts shall develop guidelines for court employees who qualify for a role in the risk assessment program.
21. Section 5 of P.L.1991, c.261 (C.2C:25-21) is amended to read as follows:
5. a. When a person claims to be a victim of domestic violence, and where a law enforcement officer responding to the incident finds probable cause to believe that domestic violence has occurred, the law enforcement officer shall arrest the person who is alleged to be the person who subjected the victim to domestic violence and shall sign a criminal complaint if:
(1) The victim exhibits signs of injury caused by an act of domestic violence;
(2) A warrant is in effect;
(3) There is probable cause to believe that the person has violated N.J.S.2C:29-9, and there is probable cause to believe that the person has been served with the order alleged to have been violated. If the victim does not have a copy of a purported order, the officer may verify the existence of an order with the appropriate law enforcement agency; or
(4) There is probable cause to believe that a weapon as defined in N.J.S.2C:39-1 has been involved in the commission of an act of domestic violence.
b. A law enforcement officer may arrest a person; or may sign a criminal complaint against that person, or may do both, where there is probable cause to believe that an act of domestic violence has been committed, but where none of the conditions in subsection a. of this section applies.
c. (1) As used in this section, the word "exhibits" is to be liberally construed to mean any indication that a victim has suffered bodily injury, which shall include physical pain or any impairment of physical condition. Where the victim exhibits no visible sign of injury, but states that an injury has occurred, the officer should consider other relevant factors in determining whether there is probable cause to make an arrest.
(2) In determining which party in a domestic violence incident is the victim where both parties exhibit signs of injury, the officer should consider the comparative extent of the injuries, the history of domestic violence between the parties, if any, and any other relevant factors.
(3) No victim shall be denied relief or arrested or charged under this act with an offense because the victim used reasonable force in self defense against domestic violence by an attacker.
d. (1) In addition to a law enforcement officer's authority to seize any weapon that is contraband, evidence or an instrumentality of crime, a law enforcement officer who has probable cause to believe that an act of domestic violence has been committed shall:
(a) question persons present to determine whether there are weapons on the premises; and
(b) upon observing or learning that a weapon is present on the premises, seize any weapon that the officer reasonably believes would expose the victim to a risk of serious bodily injury. If a law enforcement officer seizes any firearm pursuant to this paragraph, the officer shall also seize any firearm purchaser identification card or permit to purchase a handgun issued to the person accused of the act of domestic violence.
(2) A law enforcement officer shall deliver all weapons, firearms purchaser identification cards and permits to purchase a handgun seized pursuant to this section to the county prosecutor and shall append an inventory of all seized items to the domestic violence report.
(3) Weapons seized in accordance with the "Prevention of Domestic Violence Act of 1991", P.L.1991, c.261(C.2C:25-17 et seq.) shall be returned to the owner except upon order of the Superior Court. The prosecutor who has possession of the seized weapons may, upon notice to the owner, petition a judge of the Family Part of the Superior Court, Chancery Division, within 45 days of seizure, to obtain title to the seized weapons, or to revoke any and all permits, licenses and other authorizations for the use, possession, or ownership of such weapons pursuant to the law governing such use, possession, or ownership, or may object to the return of the weapons on such grounds as are provided for the initial rejection or later revocation of the authorizations, or on the grounds that the owner is unfit or that the owner poses a threat to the public in general or a person or persons in particular.
A hearing shall be held and a record made thereof within 45 days of the notice provided above. No formal pleading and no filing fee shall be required as a preliminary to such hearing. The hearing shall be summary in nature. Appeals from the results of the hearing shall be to the Superior Court, Appellate Division, in accordance with the law.
If the prosecutor does not institute an action within 45 days of seizure, the seized weapons shall be returned to the owner.
After the hearing the court shall order the return of the firearms, weapons and any authorization papers relating to the seized weapons to the owner if the court determines the owner is not subject to any of the disabilities set forth in N.J.S.2C:58-3c. and finds that the complaint has been dismissed at the request of the complainant and the prosecutor determines that there is insufficient probable cause to indict; or if the defendant is found not guilty of the charges; or if the court determines that the domestic violence situation no longer exists. Nothing in this act shall impair the right of the State to retain evidence pending a criminal prosecution. Nor shall any provision of this act be construed to limit the authority of the State or a law enforcement officer to seize, retain or forfeit property pursuant to chapter 64 of Title 2C of the New Jersey Statutes. Nothing in this act shall prevent the inclusion of the outcome of this hearing in any risk assessment prepared pursuant to P.L. ,c. (C. ) (pending before the Legislature as this bill)
If, after the hearing, the court determines that the weapons are not to be returned to the owner, the court may:
(a) With respect to weapons other than firearms, order the prosecutor to dispose of the weapons if the owner does not arrange for the transfer or sale of the weapons to an appropriate person within 60 days; or
(b) Order the revocation of the owner's firearms purchaser identification card or any permit, license or authorization, in which case the court shall order the owner to surrender any firearm seized and all other firearms possessed to the prosecutor and shall order the prosecutor to dispose of the firearms if the owner does not arrange for the sale of the firearms to a registered dealer of the firearms within 60 days; or
(c) Order such other relief as it may deem appropriate. When the court orders the weapons forfeited to the State or the prosecutor is required to dispose of the weapons, the prosecutor shall dispose of the property as provided in N.J.S.2C:64-6.
(4) A civil suit may be brought to enjoin a wrongful failure to return a seized firearm where the prosecutor refuses to return the weapon after receiving a written request to do so and notice of the owner's intent to bring a civil action pursuant to this section. Failure of the prosecutor to comply with the provisions of this act shall entitle the prevailing party in the civil suit to reasonable costs, including attorney's fees, provided that the court finds that the prosecutor failed to act in good faith in retaining the seized weapon.
(5) No law enforcement officer or agency shall be held liable in any civil action brought by any person for failing to learn of, locate or seize a weapon pursuant to this act, or for returning a seized weapon to its owner.
(cf: P.L.2003, c.277, s.1)
22. 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 P.L.1991, c.261 (C.2C:25-28) 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 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 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. In addition to any other provisions, any restraining order issued by the court shall bar the defendant from purchasing, owning, possessing or controlling a firearm and from receiving or retaining a firearms purchaser identification card or permit to purchase a handgun pursuant to N.J.S.2C:58-3 during the period in which the restraining order is in effect or two years whichever is greater, except that this provision shall not apply to any law enforcement officer while actually on duty, or to any member of the Armed Forces of the United States or member of the National Guard while actually on duty or traveling to or from an authorized place of duty. 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 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 parenting time. 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 parenting time may include a designation of a place of parenting time away from the plaintiff, the participation of a third party, or supervised parenting time.
(a) The court shall consider a request by a custodial parent who has been subjected to domestic violence by a person with 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 parenting time order. An "appropriate agency" shall include a qualified risk assessor pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill). 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 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 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 Victims of Crime Compensation Board for any and all compensation paid by the Victims of Crime 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, 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. No application by the defendant to dissolve a final order which contains a requirement for attendance at professional counseling pursuant to this paragraph shall be granted by the court unless, in addition to any other provisions required by law or conditions ordered by the court, the defendant has completed all required attendance at such 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) (Deleted by amendment, P.L.1995, c.242).
(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) In addition to the order required by this subsection prohibiting the defendant from possessing any firearm, the court may also issue an order prohibiting the defendant from possessing any other weapon enumerated in subsection r. of N.J.S.2C:39-1 and ordering the search for and seizure of any firearm or other 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 requiring the defendant to undergo a risk assessment pursuant to P.L. ,c. (C. ) (pending before the Legislature as this bill).
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.
e. Prior to the issuance of any order pursuant to this section, the court shall order that a search be made of the domestic violence central registry.
(cf: P.L.2003, c.277, s.2)
23. R.S.43:21-5 is amended to read as follows:
43:21-5. Disqualification for benefits.
An individual shall be disqualified for benefits:
(a) For the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed and works eight weeks in employment, which may include employment for the federal government, and has earned in employment at least ten times the individual's weekly benefit rate, as determined in each case. This subsection shall apply to any individual seeking unemployment benefits on the basis of employment in the production and harvesting of agricultural crops, including any individual who was employed in the production and harvesting of agricultural crops on a contract basis and who has refused an offer of continuing work with that employer following the completion of the minimum period of work required to fulfill the contract.
(b) For the week in which the individual has been suspended or discharged for misconduct connected with the work, and for the seven weeks which immediately follow that week, as determined in each case.
For the week in which the individual has been suspended or discharged for severe misconduct connected with the work, and for each week thereafter until the individual becomes reemployed and works four weeks in employment, which may include employment for the federal government, and has earned in employment at least six times the individual's weekly benefit rate, as determined in each case. Examples of severe misconduct include, but are not necessarily limited to, the following: repeated violations of an employer's rule or policy, repeated lateness or absences after a written warning by an employer, falsification of records, physical assault or threats that do not constitute gross misconduct as defined in this section, misuse of benefits, misuse of sick time, abuse of leave, theft of company property, excessive use of intoxicants or drugs on work premises, theft of time, or where the behavior is malicious and deliberate but is not considered gross misconduct as defined in this section.
In the event the discharge should be rescinded by the employer voluntarily or as a result of mediation or arbitration, this subsection (b) shall not apply, provided, however, an individual who is restored to employment with back pay shall return any benefits received under this chapter for any week of unemployment for which the individual is subsequently compensated by the employer.
If the discharge was for gross misconduct connected with the work because of the commission of an act punishable as a crime of the first, second, third or fourth degree under the "New Jersey Code of Criminal Justice," N.J.S.2C:1-1 et seq., the individual shall be disqualified in accordance with the disqualification prescribed in subsection (a) of this section and no benefit rights shall accrue to any individual based upon wages from that employer for services rendered prior to the day upon which the individual was discharged.
The director shall insure that any appeal of a determination holding the individual disqualified for gross misconduct in connection with the work shall be expeditiously processed by the appeal tribunal.
(c) If it is found that the individual has failed, without good cause, either to apply for available, suitable work when so directed by the employment office or the director or to accept suitable work when it is offered, or to return to the individual's customary self-employment (if any) when so directed by the director. The disqualification shall continue for the week in which the failure occurred and for the three weeks which immediately follow that week, as determined:
(1) In determining whether or not any work is suitable for an individual, consideration shall be given to the degree of risk involved to health, safety, and morals, the individual's physical fitness and prior training, experience and prior earnings, the individual's length of unemployment and prospects for securing local work in the individual's customary occupation, and the distance of the available work from the individual's residence. In the case of work in the production and harvesting of agricultural crops, the work shall be deemed to be suitable without regard to the distance of the available work from the individual's residence if all costs of transportation are provided to the individual and the terms and conditions of hire are as favorable or more favorable to the individual as the terms and conditions of the individual's base year employment.
(2) Notwithstanding any other provisions of this chapter, no work shall be deemed suitable and benefits shall not be denied under this chapter to any otherwise eligible individual for refusing to accept new work under any of the following conditions: the position offered is vacant due directly to a strike, lockout, or other labor dispute; the remuneration, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality; or, the individual, as a condition of being employed, would be required to join a company union or to resign from or refrain from joining any bona fide labor organization.
(d) If it is found that this unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment or other premises at which the individual is or was last employed.
(1) No disqualification under this subsection (d) shall apply if it is shown that:
(a) The individual is not participating in or financing or directly interested in the labor dispute which caused the stoppage of work; and
(b) The individual does not belong to a grade or class of workers of which, immediately before the commencement of the stoppage, there were members employed at the premises at which the stoppage occurs, any of whom are participating in or financing or directly interested in the dispute; provided that if in any case in which (a) or (b) above applies, separate branches of work which are commonly conducted as separate businesses in separate premises are conducted in separate departments of the same premises, each department shall, for the purpose of this subsection, be deemed to be a separate factory, establishment, or other premises.
(2) For any claim for a period of unemployment commencing on or after December 1, 2004, no disqualification under this subsection (d) shall apply if it is shown that the individual has been prevented from working by the employer, even though the individual's recognized or certified majority representative has directed the employees in the individual's collective bargaining unit to work under the preexisting terms and conditions of employment, and the employees had not engaged in a strike immediately before being prevented from working.
(e) For any week with respect to which the individual is receiving or has received remuneration in lieu of notice.
(f) For any week with respect to which or a part of which the individual has received or is seeking unemployment benefits under an unemployment compensation law of any other state or of the United States; provided that if the appropriate agency of the other state or of the United States finally determines that the individual is not entitled to unemployment benefits, this disqualification shall not apply.
(g) (1) For a period of one year from the date of the discovery by the division of the illegal receipt or attempted receipt of benefits contrary to the provisions of this chapter, as the result of any false or fraudulent representation; provided that any disqualification may be appealed in the same manner as any other disqualification imposed hereunder; and provided further that a conviction in the courts of this State arising out of the illegal receipt or attempted receipt of these benefits in any proceeding instituted against the individual under the provisions of this chapter or any other law of this State shall be conclusive upon the appeals tribunal and the board of review.
(2) A disqualification under this subsection shall not preclude the prosecution of any civil, criminal or administrative action or proceeding to enforce other provisions of this chapter for the assessment and collection of penalties or the refund of any amounts collected as benefits under the provisions of R.S.43:21-16, or to enforce any other law, where an individual obtains or attempts to obtain by theft or robbery or false statements or representations any money from any fund created or established under this chapter or any negotiable or nonnegotiable instrument for the payment of money from these funds, or to recover money erroneously or illegally obtained by an individual from any fund created or established under this chapter.
(h) (1) Notwithstanding any other provisions of this chapter (R.S.43:21-1 et seq.), no otherwise eligible individual shall be denied benefits for any week because the individual is in training approved under section 236(a)(1) of the "Trade Act of 1974," Pub.L.93-618 (19 U.S.C. s.2296 (a)(1)) nor shall the individual be denied benefits by reason of leaving work to enter this training, provided the work left is not suitable employment, or because of the application to any week in training of provisions in this chapter (R.S.43:21-1 et seq.), or any applicable federal unemployment compensation law, relating to availability for work, active search for work, or refusal to accept work.
(2) For purposes of this subsection (h), the term "suitable" employment means, with respect to an individual, work of a substantially equal or higher skill level than the individual's past adversely affected employment, as defined for purposes of the "Trade Act of 1974," Pub.L.93-618 (19 U.S.C. s.2101 et seq.) and wages for this work at not less than 80% of the individual's average weekly wage, as determined for the purposes of the "Trade Act of 1974."
(i) For benefit years commencing after June 30, 1984, for any week in which the individual is a student in full attendance at, or on vacation from, an educational institution, as defined in subsection (y) of R.S.43:21-19; except that this subsection shall not apply to any individual attending a training program approved by the division to enhance the individual's employment opportunities, as defined under subsection (c) of R.S.43:21-4; nor shall this subsection apply to any individual who, during the individual's base year, earned sufficient wages, as defined under subsection (e) of R.S.43:21-4, while attending an educational institution during periods other than established and customary vacation periods or holiday recesses at the educational institution, to establish a claim for benefits. For purposes of this subsection, an individual shall be treated as a full-time student for any period:
(1) During which the individual is enrolled as a full-time student at an educational institution, or
(2) Which is between academic years or terms, if the individual was enrolled as a full-time student at an educational institution for the immediately preceding academic year or term.
(j) Notwithstanding any other provisions of this chapter (R.S.43:21-1 et seq.), no otherwise eligible individual shall be denied benefits because the individual left work or was discharged due to circumstances resulting from the individual being a victim of domestic violence as defined in section 3 of P.L.1991, c.261 (C.2C:25-19). No employer's account shall be charged for the payment of benefits to an individual who left work due to circumstances resulting from the individual being a victim of domestic violence.
For the purposes of this subsection (j), the individual shall be treated as being a victim of domestic violence if the individual provides one or more of the following:
(1) A restraining order or other documentation of equitable relief issued by a court of competent jurisdiction;
(2) A police record documenting the domestic violence;
(3) Documentation that the perpetrator of the domestic violence has been convicted of one or more of the offenses enumerated in section 3 of P.L.1991, c.261 (C.2C:25-19);
(4) Medical documentation of the domestic violence;
(5) Certification from a certified Domestic Violence Specialist or the director of a designated domestic violence agency or from a qualified risk assessor as defined in section 12 of P.L. , c. (C. ) (pending before the Legislature as section 12 of this bill) that the individual is a victim of domestic violence; or
(6) Other documentation or certification of the domestic violence provided by a social worker, member of the clergy, shelter worker or other professional who has assisted the individual in dealing with the domestic violence.
For the purposes of this subsection (j):
"Certified Domestic Violence Specialist" means a person who has fulfilled the requirements of certification as a Domestic Violence Specialist established by the New Jersey Association of Domestic Violence Professionals; and "designated domestic violence agency" means a county-wide organization with a primary purpose to provide services to victims of domestic violence, and which provides services that conform to the core domestic violence services profile as defined by the Division of Youth and Family Services in the Department of Children and Families and is under contract with the division for the express purpose of providing such services.
(k) Notwithstanding any other provisions of this chapter (R.S. 43:21-1 et seq.), no otherwise eligible individual shall be denied benefits for any week in which the individual left work voluntarily and without good cause attributable to the work, if the individual left work to accompany his or her spouse who is an active member of the United States Armed Forces, as defined in N.J.S.38A:1-1(g), to a new place of residence outside the State, due to the armed forces member's transfer to a new assignment in a different geographical location outside the State, and the individual moves to the new place of residence not more than nine months after the spouse is transferred, and upon arrival at the new place of residence the individual was in all respects available for suitable work. No employer's account shall be charged for the payment of benefits to an individual who left work under the circumstances contained in this subsection (k), except that this shall not be construed as relieving the State of New Jersey and any other governmental entity or instrumentality or nonprofit organization electing or required to make payments in lieu of contributions from its responsibility to make all benefit payments otherwise required by law and from being charged for those benefits as otherwise required by law.
(cf: P.L.2010, c.37, s.2)
24. Section 3 of P.L.2003, c.225 (C.52:27D-43.17c) is amended to read as follows:
3. a. The board shall consist of [23] 25 members as follows:
(1) the Commissioners of Community Affairs, Human Services, Children and Families, and Health and Senior Services, the Director of the Division on Women in the Department of Community Affairs, the Attorney General, the Public Defender, the Superintendent of the State Police, the Director of the Division of Youth and Family Services in the Department of Children and Families, the Supervisor of the Office on the Prevention of Violence Against Women in the Department of Community Affairs established pursuant to Executive Order No. 61 (1992), the State Medical Examiner, the Program Director of the Domestic Violence Fatality Review Board established pursuant to Executive Order No. 110 (2000) and the chairperson of the Child Fatality and Near Fatality Review Board, or their designees, who shall serve ex officio;
(2) [eight] ten public members appointed by the Governor who shall include a representative of the County Prosecutors Association of New Jersey with expertise in prosecuting domestic violence cases, a representative of the New Jersey Coalition for Battered Women, a representative of a program for battered women that provides intervention services to perpetrators of acts of domestic violence, a representative of the law enforcement community with expertise in the area of domestic violence, a psychologist with expertise in the area of domestic violence or other related fields, a licensed social worker with expertise in the area of domestic violence, a licensed health care professional knowledgeable in the screening and identification of domestic violence cases [and], a county probation officer, a monitor, an eligible provider and a qualified risk assessor as defined in P.L. , c. (C. ) (pending before the Legislature as this bill); and
(3) two retired judges appointed by the Administrative Director of the Administrative Office of the Courts, one with expertise in family law and one with expertise in municipal law as it relates to domestic violence.
b. The public members of the board shall serve for three-year terms, except that of the public members first appointed, four shall serve for a period of one year, three shall serve for a period of two years and two shall serve for a period of three years. The members shall serve without compensation, but shall be eligible for reimbursement for necessary and reasonable expenses incurred in the performance of their official duties and within the limits of funds appropriated for this purpose. Vacancies in the membership of the board shall be filled in the same manner as the original appointments were made.
c. The board shall select a chairperson from among its members who shall be responsible for the coordination of all activities of the board.
d. The board is entitled to call to its assistance and avail itself of the services of employees of any State, county or municipal department, board, bureau, commission or agency as it may require and as may be available for the purposes of reviewing a case pursuant to the provisions of this act.
e. The board may seek the advice of experts, such as persons specializing in the fields of psychiatric and forensic medicine, nursing, psychology, social work, education, law enforcement, family law, academia, military affairs or other related fields, if the facts of a case warrant additional expertise.
(P.L. 2011, c.129, s.1)
25. Section 2 of P.L.2005, c.204 (C.52:27D-43.36) is amended to read as follows:
2. a. The Director of the Division on Women in the Department of Community Affairs, in consultation with the Advisory Council on Domestic Violence and the Commissioners of Human Services and Health and Senior Services, shall establish a domestic violence public awareness campaign in order to promote public awareness of domestic violence among the general public and health care and social services professionals and provide information to assist victims of domestic violence and their children.
b. The public awareness campaign shall include the development and implementation of public awareness and outreach efforts to promote domestic violence prevention and education, including, but not limited to, the following subjects:
(1) the causes and nature of domestic violence;
(2) risk factors;
(3) preventive measures; [and]
(4) the availability of, and how to access, services in the community for victims of domestic violence, including, but not limited to, shelter services, legal advocacy services and legal assistance services; and
(5) the availability of the "Domestic Violence Risk Assessment Pilot Program" established pursuant to P.L. ,c. (C. ) (pending before the Legislature as this bill).
c. The director shall coordinate the efforts of the division with any activities being undertaken by other State agencies to promote public awareness of, and provide information to the public about, domestic violence.
d. The director, within the limits of funds available for this purpose, shall seek to utilize electronic and print media, and may prepare and disseminate such written information as the director deems necessary, to accomplish the purposes of this act.
e. The division shall make available electronically on its Internet website in English and Spanish information about domestic violence as described in subsection b. of this section.
f. The director may accept, for the purposes of the public awareness campaign, any special grant of funds, services, or property from the federal government or any of its agencies, or from any foundation, organization or other entity.
g. The director shall report to the Governor and the Legislature, no later than 18 months after the effective date of this act, on the activities and accomplishments of the public awareness campaign.
(cf: P.L.2005, c.204, s.2)
26. This act shall take effect on the 60th day after enactment except the Director of the Administrative Office of the Courts may take such anticipatory administrative action in advance thereof as shall be necessary for the implementation of this act.
STATEMENT
This bill establishes a risk assessment pilot program in Essex and Passaic Counties, and is named for thirty-one year old Monica Paul who, in June, 2008 was shot to death in the presence of her 11 year old daughter at a Montclair YMCA. Charged in the killing was her estranged husband Kenneth Duckett against whom she had obtained a restraining order.
Under the bill, the Administrative Offices of the Court shall establish a pilot program in Essex and Passaic counties, the purpose of which shall be to impose a risk assessment requirement, prior to issuing an award of visitation, in all cases where a final domestic violence restraining order has been issued and where the actor and the victim have a child in common and enumerated risk factors are present.
Under the bill, a "risk assessment" means an assessment of the likelihood that the person against whom the final restraining order is issued will commit an act of violence against the victim or against the child which the actor and the victim have in common, performed by a qualified, licensed professional.
The bill requires that a domestic violence complainant shall, at the time of the filing of the complaint, complete a questionnaire. The questionnaire shall include information as to whether the person against whom the domestic violence complaint is filed has a child or children in common with the victim; and whether the person has ever used or threatened to use a weapon or has made other threats against the victim or any child or committed other acts enumerated in this bill. The completed questionnaire would be attached to the domestic violence complaint and shall be considered by the court hearing the domestic violence matter.
A risk assessment shall be ordered by the court in all cases as set forth in section 5 of the bill. A risk assessment would be mandatory in cases where there has been a violation of a final domestic violence restraining order. A risk assessment would also be mandatory in cases where the court makes a determination regarding parenting time subsequent to a complaint of domestic violence against one of the parents seeking parenting time.
A qualified applicant for a risk assessor certification shall be a licensed professional who is trained as defined in the bill. (See section 7 of the bill).
Section 9 of the bill sets forth the 12 hours of basic instruction. Section 10 of the bill sets forth 16 hours of advanced training. Section 11 of the bill concerns annual update training.
Qualified risk assessors are trained by eligible providers. The bill defines in section 12 "eligible providers." The bill requires monitors to oversee eligible providers.
Sections 14 through 18 set forth the protocols for how information is obtained by a qualified risk assessor.
Defendants would be responsible to pay for the costs of all ordered risk assessments except that the court may waive the costs of the risk assessments in cases of financial hardship.
The bill amends existing statutes to make reference to the risk assessment program.
