New Jersey-2012-S1051-Introduced

An Act concerning establishment of and changes in child custody during periods of active military duty and supplementing chapter 2 of Title 9 of the Revised Statutes.

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

1. The Legislature finds and declares that currently there are seven military bases in New Jersey, and 64 National Guard armories in 42 communities, with a significant number of New Jersey citizens serving in the military. The Legislature further finds that temporary duty, the deployment of an active-duty servicemember, or the mobilization of a member of the National Guard or Reserve, sometimes with little advance notice, can have a disruptive effect on custody or parenting time arrangements involving minor children of servicemembers.

The Legislature further finds that servicemembers should be protected, as should their minor children, from the loss of custodial arrangements and disruption of family contact due to the servicemember's absence in compliance with military orders for temporary duty, deployment, mobilization; and that other members of a servicemember's family, such as grandparents, current spouse, and siblings of the minor, can provide love, support, comfort, care, and continuity to the servicemembers minor child through delegated parenting time when a servicemember is absent due to military orders.

Child custody hearings conducted in a servicemember's absence could be harmful to the interest of both the minor child who could be adversely impacted by the loss of parenting time, as well as the parent who has been deployed. The scheduling of hearings affecting the rights and obligations of military personnel may be prohibited or delayed pursuant to the protections of the Servicemembers' Civil Relief Act, 50 United States Code Appendix sec. 501. et seq.

The use of expedited hearings and testimony by electronic means, at the request of the servicemember who is absent or about to depart for military service, would, in cases where a hearing is necessary, aid and promote fair, informed, efficient, and prompt judicial processes for the resolution of family law makers.

2. As used in this act:

a. "Military parent" means a natural parent or adoptive parent of a minor child whose parental rights have not been terminated by a court of competent jurisdiction and who is currently enlisted with the United States Army, Navy, Air Force, Marine Corps, Cost Guard, National Guard, or any other reserve component thereof.

b. "Deploying parent" means a military parent who is the parent of a child under the age of eighteen whose parental rights have not been terminated by a court of competent jurisdiction or a guardian of a child under the age of 18 who is deployed or who has received written orders to deploy with the United States Army, Navy, Air Force, Marine Corps, Cost Guard, National Guard, or any other reserve component thereof.

c. "Non-deploying parent" means a parent or guardian not subject to an order of deployment whether or not a military parent.

d. "Deployment" means military service in compliance with military orders received by a member of the United States Army, Navy, Air Force, Marine Corps, Coast Guard, National Guard or any other reserve component thereof, to report for combat operations, peacekeeping operations, temporary duty (TDY), a remote tour of duty or service upon a vessel or other active service for which the deploying parent is required to report unaccompanied by any family member. Military service includes a period during which a military parent remains subject to deployment orders and remains deployed on account of sickness, wounds, leave, or other lawful cause.

3. Final Order. No court shall enter a final order modifying the terms of custody or parenting time contained in an existing order; or establishing child custody terms, until 90 days after a deployment ends.

4. Deployment or the potential for deployment may not be the sole factor serving as a basis for an application for a change in circumstance to support a permanent modification of the custody or parenting time established in an existing order.

5. Temporary modification. a. An existing order establishing the terms of custody or parenting time in place at the time a military parent is deployed may be temporarily modified to make reasonable accommodation for the parties because of the deployment of the military parent.

b. A temporary modification order issued pursuant to this section must provide that the deploying parent is permitted to exercise custody of the child or exercise reasonable parenting time, whichever is applicable pursuant to the original order, during a period of leave granted to the deploying parent.

c. Any such custody or parenting time order shall further require the non-deploying parent to provide the court and the deploying parent with 30 days' advance notice of any intended change of address and any change of telephone number.

d. Upon the application of a deploying parent, with reasonable advance notice and for good cause shown, the court shall hold an expedited hearing in any custody or parenting time application instituted under this section when the military duties of the deploying parent have a material effect on his ability, or anticipated ability, to appear, fully participate in person at a hearing or evaluative process scheduled in the normal course, or both. Such application, if made, shall be considered to be an application for affirmative relief, consistent with the protections afforded in the Servicemembers' Civil Relief Act 50 United States Code Appendix sec. 591, and shall not be considered as a waiver of any rights or protections contained under law in the Servicemembers' Civil Relief Act, 50 United States Code Appendix sec. 501. et seq. .

6. Termination of temporary modification.

a. A temporary order for custody or parenting time as set forth in section 5 of P.L. c. (C. ) (pending before the Legislature as this bill), shall end by operation of law, upon the return of the deploying parent and the original terms of the custody or parenting time order previously in place at the time of deployment shall be reinstated.

b. This shall not limit the power of the court to conduct an expedited or emergency hearing regarding the terms and conditions of the exercise of custody or parenting time upon return of the deploying parent, and the court shall do so within ten days of the filing of an application seeking the continuation of the temporary order based upon a showing of immediate danger of irreparable harm to the child.

c. The non-deploying parent shall bear the burden of showing that the continuation of the temporary custody or parenting time order is required to prevent irreparable harm and that the reinstatement of any orders in effect before the deployment will no longer be in the child's best interests. The court shall set any non-emergency motion by the non-deploying parent for hearing within 30 days of filing of the motion and such an application shall take precedence on the court's docket.

7. Removal from jurisdiction. Any order permitting removal of the child from the State of New Jersey, during or in connection with a period of deployment, shall be designated a temporary order, and any absence of the child from the State of New Jersey as the result of the application of P.L. 2004, c.147, (C. 2A:34-53 et.seq.), the, "Uniform Child Custody Jurisdiction and Enforcement Act." For the duration of the deployment, New Jersey shall retain exclusive, continuing jurisdiction and deployment may not be used as a basis to assert inconvenience of the forum.

8. Appointment of a guardian ad litem. In any application for custody or parenting time in which a deployed military parent invokes the protections of Servicemembers' Civil Relief Act, 50 United States Code Appendix 521, and the court declines to extend a stay of proceedings beyond the mandatory 90 day stay and proceeds in the absence of the military parent, the court shall appoint at the request of the military parent, or its own motion, a guardian ad litem or an attorney or both to represent the minor child's interests.

9. Delegation of parenting time. Upon application of a person acting under Military Power of Attorney, as provided for under 10 United States Code sec. 1044, the court may temporarily delegate the deployed parent's parenting time to a person who according to a representation made by the deployed parent, maintains a close personal relationship to the deployed parent and the child, for the duration of the deployment if it is determined to be in the child's best interest. Such delegated parenting time or access does not create an entitlement or standing to assert separate rights to parenting time or access for any person other than a parent, and shall terminate by operation of law upon the end of the deployment, as set forth above.

10. Testimony and evidence. Upon application of a deploying parent, upon a reasonable advance notice and for good cause shown, the court shall allow that parent to present testimony and evidence by affidavit or electronic means in custody and parenting time matters instituted under this section when the military duties of that parent have a material effect on his ability to appear and fully participate in person at a hearing or evaluative process scheduled in the normal course. Such application, if made, shall be considered to be an application for Affirmative Relief Act consistent with the protections afforded in 50 United States Code Appendix Sec. 591, and shall not be considered as a waiver of any rights to protections contained under law in the Servicemembers' Civil Relief Act. The phrase "electronic means" includes communication by telephone, video teleconference or the Internet.

11. Leave and other accommodations. Any order entered under this section shall require that:

a. The non-deploying parent shall make the child or children reasonably available to the deploying parent when the latter parent has leave;

b. The non-deploying parent shall facilitate opportunities for telephonic and electronic mail contact between the deploying parent and the child during periods of deployment; and

c. The deploying parent shall provide timely information regarding such parent's leave schedule to the non-deploying parent.

12. No existing order. If there is no existing order establishing the terms of custody or parenting time and deployment is imminent, upon application by either parent or guardian, the court shall expedite a temporary hearing to establish the terms and conditions of custody and parenting time, during the period of deployment. Any initial pleading filed to establish physical or legal custody or parenting time for a child of a deploying parent shall be so identified at the same time of filing by stating the specific facts related to deployment. Such application for affirmative relief, consistent with the protections afforded in 50 United States Code Appendix Sec. 591, and shall not be considered as a waiver of any rights or protections contained under law in the Servicemembers' Civil Relief Act, 50 United States Code Appendix sec. 501. et seq..

13. Duty to cooperate and disclose information.

a. The parties shall cooperate with each other in an effort to reach a resolution of custody and parenting time issues.

b. A deploying parent shall promptly provide a copy of deployment orders to the non-deploying parent and to the court, prior to deployment. Notification must be made within 10 days of receipt of deployment orders. If less than 10 days' notice is received by the deploying parent, then notice must be given immediately upon receipt of military orders.

14. Service of process. Service of process on a non-deploying parent whose whereabouts are not known may be accomplished by certified mail, return receipt requested, to the non-deploying parents' last known address based on an affidavit of the deploying part.

15. Failure to exercise parenting time. In determining whether a parent has failed to exercise parenting time, the court may not include in its determination any time periods during which the parent was deployed or the parent's military duties had a material effect on the exercise of parenting time.

16. Attorney fees. In making determinations pursuant to this section, the court may award attorney's fees and costs based on the court's consideration of:

a. the failure of either party to reasonably accommodate the other party in custody or parenting time schedules related to a military parent's service;

b. unreasonable delay caused by either party to timely provide military orders, income, earnings or payment information, housing or educational information, physical location of the child, to the other party; and

c. other factors as the court may consider appropriate and as may be required by law.

17. This act shall take effect immediately.

STATEMENT

This bill establishes that in cases involving custody of a minor child, if a motion for a change of custody is filed during a time a parent is in active military duty, the court shall not enter an order modifying or amending a previous judgment or order, or enter a new order that permanently changes the custody arrangement in existence on the date the parent was called to active military duty.

The bill provides that no court shall enter a final order modifying the terms of custody or parenting time contained in an existing order; or establishing child custody terms, until 90 days after a deployment ends. Further, deployment or the potential for deployment may not be the sole factor serving as a basis for an application for a change in circumstance to support a permanent modification of the custody or parenting time established in an existing order.

Under the bill, the court may enter a temporary custody under the guidelines established which include:

-- A temporary modification order must provide that the deploying parent is permitted to exercise custody of the child or exercise reasonable parenting time, whichever is applicable pursuant to the original order, during a period of leave granted to the deploying parent.

-- Any custody or parenting time order shall require the non-deploying parent to provide the court and the deploying parent with 30 days' advance notice of any intended change of address and any change of telephone number.

-- Upon application of a deploying parent, with reasonable advance notice and for good cause shown, the court shall hold an expedited hearing in any custody or parenting time application when the military duties of the deploying parent have a material effect on his ability, or anticipated ability, to appear, fully participate in person at a hearing or evaluative process scheduled in the normal course, or both. Such application, if made, shall be considered to be an application for affirmative relief, consistent with the protections afforded in 50 United States Code Appendix Sec. 591, and shall not be considered as a waiver of any rights or protections contained under law in the Servicemembers' Civil Relief Act, 50 United States Code Appendix sec. 501. et seq.

Provision is made in the bill for the termination of any temporary modification orders by operation of law upon the return of the deploying parent and the reinstitution of the custody or parenting time order in place at the time of the deployment. The bill provides that the non-deploying parent shall bear the burden of showing that the continuation of the temporary custody or parenting time order is required to prevent irreparable harm and that the reinstatement of any orders in effect before the deployment will no longer be in the child's best interests.

The bill provides that New Jersey shall retain home state jurisdiction for purposes of the Uniform Child Custody Jurisdiction and Enforcement Act.

The bill also provides that if a motion for a change of custody is filed after a parent returns from active military duty, the court shall not consider a parent's absence due to military duty, by itself, to be sufficient to justify a modification of a child custody or visitation order.