[Fourth Reprint]

ASSEMBLY, No. 3730

STATE OF NEW JERSEY

220th LEGISLATURE

INTRODUCED MAY 2, 2022

 


 

Sponsored by:

Assemblyman† STERLEY S. STANLEY

District 18 (Middlesex)

Assemblywoman† CAROL A. MURPHY

District 7 (Burlington)

Assemblywoman† SHANIQUE SPEIGHT

District 29 (Essex)

 

Co-Sponsored by:

Assemblywomen Reynolds-Jackson, McKnight, Lopez, Jasey, Assemblyman Spearman and Assemblywoman Park

 

 

 

 

SYNOPSIS

††††† Permits court to order counseling for children in households with domestic violence in appropriate cases; establishes presumption of award of custody to domestic violence victim in appropriate cases.

 

CURRENT VERSION OF TEXT

†††† As reported by the Assembly Appropriations Committee on March 23, 2023, with amendments.

††


An Act concerning counseling for a child in certain domestic violence situations and amending P.L.1991, c.261.

 

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

 

†††† 1.††† Section 12 of P.L.1991, c.261 (C.2C:25-28) is amended to read as follows:

†††† 12.† a.† A victim may file a complaint alleging the commission of an act of domestic violence with the Family Part of the Chancery Division of the Superior Court in conformity with the Rules of Court.† The court shall not dismiss any complaint or delay disposition of a case because the victim has left the residence to avoid further incidents of domestic violence.† Filing a complaint pursuant to this section shall not prevent the filing of a criminal complaint for the same act.

†††† On weekends, holidays and other times when the court is closed, a victim may file a complaint before a judge of the Family Part of the Chancery Division of the Superior Court or a municipal court judge who shall be assigned to accept complaints and issue emergency, ex parte relief in the form of temporary restraining orders pursuant to this act.

†††† A plaintiff may apply for relief under this section in a court having jurisdiction over the place where the alleged act of domestic violence occurred, where the defendant resides, or where the plaintiff resides or is sheltered, and the court shall follow the same procedures applicable to other emergency applications.† Criminal complaints filed pursuant to this act shall be investigated and prosecuted in the jurisdiction where the offense is alleged to have occurred.† Contempt complaints filed pursuant to N.J.S.2C:29-9 shall be prosecuted in the county where the contempt is alleged to have been committed and a copy of the contempt complaint shall be forwarded to the court that issued the order alleged to have been violated.

†††† b.††† The court shall waive any requirement that the petitioner's place of residence appear on the complaint.

†††† c. (1) The clerk of the court, or other person designated by the court, shall assist the parties in completing any forms necessary for the filing of a summons, complaint, answer or other pleading.

†††† (2)†† The plaintiff may provide information concerning firearms to which the defendant has access, including the location of these firearms, if known, on a form to be prescribed by the Administrative Director of the Courts.

†††† (3)†† Information provided by the plaintiff concerning firearms to which the defendant has access shall be kept confidential and shall not be disseminated or disclosed, provided that nothing in this subsection shall prohibit dissemination or disclosure of this information in a manner consistent with and in furtherance of the purpose for which the information was provided.

†††† d.††† Summons and complaint forms shall be readily available at the clerk's office, at the municipal courts and at municipal and State police stations.

†††† e.†††† As soon as the domestic violence complaint is filed, both the victim and the abuser shall be advised of any programs or services available for advice and counseling, including services available for children who may have witnessed or been exposed to domestic violence while residing in the household.

†††† f.†††† A plaintiff may seek emergency, ex parte relief in the nature of a temporary restraining order.† A municipal court judge or a judge of the Family Part of the Chancery Division of the Superior Court may enter an ex parte order when necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought.

†††† g.††† If it appears that the plaintiff is in danger of domestic violence, the judge shall, upon consideration of the plaintiff's domestic violence complaint, order emergency ex parte relief, in the nature of a temporary restraining order.† A decision shall be made by the judge regarding the emergency relief forthwith.

†††† h.††† A judge may issue a temporary restraining order upon sworn testimony or complaint of an applicant who is not physically present, pursuant to court rules, or by a person who represents a person who is physically or mentally incapable of filing personally.† A temporary restraining order may be issued if the judge is satisfied that exigent circumstances exist sufficient to excuse the failure of the applicant to appear personally and that sufficient grounds for granting the application have been shown.

†††† i.†††† An order for emergency, ex parte relief shall be granted upon good cause shown and shall remain in effect until a judge of the Family Part issues a further order.† Any temporary order hereunder is immediately appealable for a plenary hearing de novo not on the record before any judge of the Family Part of the county in which the plaintiff resides or is sheltered if that judge issued the temporary order or has access to the reasons for the issuance of the temporary order and sets forth in the record the reasons for the modification or dissolution.† The denial of a temporary restraining order by a municipal court judge and subsequent administrative dismissal of the complaint shall not bar the victim from refiling a complaint in the Family Part based on the same incident and receiving an emergency, ex parte hearing de novo not on the record before a Family Part judge, and every denial of relief by a municipal court judge shall so state.

†††† j.†††† Emergency relief may include forbidding the defendant from returning to the scene of the domestic violence, forbidding the defendant from possessing any firearm or other weapon enumerated in subsection r. of N.J.S.2C:39-1, 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 and the seizure of any firearms purchaser identification card or permit to purchase a handgun issued to the defendant and any other appropriate relief.

†††† If the order requires the surrender of any firearm or other weapon, a law enforcement officer shall accompany the defendant, or may proceed without the defendant if necessary, to the scene of the domestic violence or any other location where the judge has reasonable cause to believe any firearm or other weapon belonging to the defendant is located, to ensure that the defendant does not gain access to any firearm or other weapon, and that the firearm or other weapon is appropriately surrendered in accordance with the order. If the order prohibits the defendant from returning to the scene of domestic violence or any other location where the judge has reasonable cause to believe any firearm or other weapon belonging to the defendant is located, any firearm or other weapon located there shall be seized by a law enforcement officer. The order shall include notice to the defendant of the penalties for a violation of any provision of the order, including but not limited to the penalties for contempt of court and unlawful possession of a firearm or other weapon pursuant to N.J.S.2C:39-5.† Other appropriate relief may include but is not limited to an order directing the possession of any animal owned, possessed, leased, kept, or held by either party or a minor child residing in the household and providing that the animal shall not be disposed of prior to entry of a final order pursuant to section 13 of P.L.1991, c.261 (C.2C:25-29).

†††† The judge shall state with specificity the reasons for and scope of any search and seizure authorized by the order.† The provisions of this subsection prohibiting a defendant from possessing a firearm or other weapon 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.†

†††† k.††† The judge may permit the defendant to return to the scene of the domestic violence to pick up personal belongings and effects but shall, in the order granting relief, restrict the time and duration of such permission and provide for police supervision of such visit.

†††† l.†††† An order granting emergency relief, together with the complaint or complaints, shall immediately be forwarded to the appropriate law enforcement agency for service on the defendant, and to the police of the municipality in which the plaintiff resides or is sheltered, and shall immediately be served upon the defendant by the police, except that an order issued during regular court hours may be forwarded to the sheriff for immediate service upon the defendant in accordance with the Rules of Court.† If personal service cannot be effected upon the defendant, the court may order other appropriate substituted service.† At no time shall the plaintiff be asked or required to serve any order on the defendant.

†††† m.†† (Deleted by amendment, P.L.1994, c.94.)

†††† n.††† Notice of temporary restraining orders issued pursuant to this section shall be sent by the clerk of the court or other person designated by the court to the appropriate chiefs of police, members of the State Police and any other appropriate law enforcement agency or court.†

†††† o.††† (Deleted by amendment, P.L.1994, c.94.)

†††† p.††† Any temporary or final restraining order issued pursuant to this act shall be in effect throughout the State, and shall be enforced by all law enforcement officers.†

†††† q.††† Prior to the issuance of any temporary or final restraining order issued pursuant to this section, the court shall order that a search be made of the domestic violence central registry with regard to the defendant's record.

(cf: P.L.2016, c.91, s.2)

 

††††† 2. †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. The order shall require the immediate surrender of any firearm or other weapon belonging to the defendant.† The order shall include notice to the defendant of the penalties for a violation of any provision of the order, including but not limited to the penalties for contempt of court and unlawful possession of a firearm or other weapon pursuant to N.J.S.2C:39-5.

††††† A law enforcement officer shall accompany the defendant, or may proceed without the defendant if necessary, to any place where any firearm or other weapon belonging to the defendant is located to ensure that the defendant does not gain access to any firearm or other weapon, and a law enforcement officer shall take custody of any firearm or other weapon belonging to the defendant.† If the order prohibits the defendant from returning to the scene of domestic violence or other place where firearms or other weapons belonging to the defendant are located, any firearm or other weapon located there shall be seized by a law enforcement officer.† The provisions of this subsection requiring the surrender or removal of a firearm, card, or permit 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.† 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 Office for any and all compensation paid by the Victims of Crime Compensation Office 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. 3Upon entry of a final restraining order pursuant to section 12 of P.L.1991, c.261 (C.2C:25-28), there shall be a presumption that legal and physical custody shall be awarded to the non-abusive parent.† A denial of legal or physical custody or visitation pursuant to this paragraph shall not by itself terminate the parental rights of the person denied custody, nor shall it affect the obligation of the person to support the minor child.† The court may provide for appropriate parenting time for the non 4-4 custodial parent where the court deems appropriate. 4Nothing in this paragraph shall be construed to preclude the non-custodial parent from making an appropriate application with the court to modify an award of custody or parenting time in accordance with the Rules of Court.4

††††† In any 4[proceeding for the establishment or enforcement of an obligation of support] subsequent child support proceeding following the entry of a final restraining order4, the victim shall not 4be required to4 be 4[required to appear in the presence of] in the same room as4 the person found by the court to have committed an act of domestic violence pursuant to P.L.1991, c.261 (C.2C:25-17 et seq.), and the victimís and childís whereabouts shall be kept confidential.3

††††† (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 directing the possession of any animal owned, possessed, leased, kept, or held by either party or a minor child residing in the household. Where a person has abused or threatened to abuse such animal, there shall be a presumption that possession of the animal shall be awarded to the non-abusive party.

††††† (20)† An order requiring the defendant to pay for a child to receive professional domestic violence counseling at the plaintiffís request, and, in that event, requiring the defendant to provide the court with documentation of payment to the professional counseling entity.† Further, the court may order a defendant to provide reimbursement for costs incurred by the plaintiff associated with providing counseling for a child. 2The order may require the defendant to pay the victim directly, to reimburse the Victims of Crime Compensation Office for any and all compensation paid by the Victims of Crime Compensation Office 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.21The court may enter such order upon evaluating and determining the defendantís ability to pay for such services, either in whole or in part.

††††† 3[(21)† If the court finds that an award of permanent sole custody to the plaintiff serves the best interests of the child, the court shall order permanent sole custody of the minor child to the plaintiff with appropriate parenting time for the defendant in accordance with section 3 of P.L.††† , c.††† (C.††† ) (pending before the Legislature as this bill).1]3

††††† 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.2016, c.91, s.3)

 

†††† 3[13.† (New section)††††††††† a.† Notwithstanding any provision of law to the contrary, a person found by the court to have committed domestic violence pursuant to P.L.1991, c.261 (C.2C:25-17 et seq.) shall not be awarded custody of any minor child, except upon a showing of clear and convincing evidence that it is in the best interest of the child for custody to be awarded to that person.† A court that awards such custody to a person found by the court to have committed domestic violence pursuant to P.L.1991, c.261 (C.2C:25-17 et seq.) 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 Rules of Court.

†††† b.††† A denial of custody or visitation under this section shall not by itself terminate the parental rights of the person denied custody, nor shall it affect the obligation of the person to support the minor child. †The court may provide for appropriate parenting time for the noncustodial parent where the court deems appropriate.

†††† c.†††† In any proceeding for the establishment or enforcement of such an obligation of support the victim shall not be required to appear in the presence of the person found by the court to have committed domestic violence pursuant to P.L.1991, c.261 (C.2C:25-17 et seq.), and the victimís and childís whereabouts shall be kept confidential.1]3

 

†††† 1[3.] 3[4.1] 3.3 This act shall take effect immediately.