Bill Text: NJ S1063 | 2018-2019 | Regular Session | Introduced


Bill Title: Updates factors for consideration for grandparent and sibling petitions seeking visits with child over objection of parent, guardian, or custodian; adds preference for child's temporary placement with grandparent under "Child Placement Bill of Rights Act."

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Introduced) 2018-01-22 - Introduced in the Senate, Referred to Senate Judiciary Committee [S1063 Detail]

Download: New_Jersey-2018-S1063-Introduced.html

SENATE, No. 1063

STATE OF NEW JERSEY

218th LEGISLATURE

INTRODUCED JANUARY 22, 2018

 


 

Sponsored by:

Senator  JEFF VAN DREW

District 1 (Atlantic, Cape May and Cumberland)

 

 

 

 

SYNOPSIS

     Updates factors for consideration for grandparent and sibling petitions seeking visits with child over objection of parent, guardian, or custodian; adds preference for child's temporary placement with grandparent under "Child Placement Bill of Rights Act."

 

CURRENT VERSION OF TEXT

     As introduced.

 


An Act concerning non-parental visitation and temporary custody rights related to a minor, and amending P.L.1971, c.420 and P.L.1991, c.290.

 

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

 

     1.  Section 1 of P.L.1971, c.420 (C.9:2-7.1) is amended to read as follows:

     1.    a.  A grandparent or any sibling of a child residing in this State, whether related to the child by blood, half-blood, affinity, or adoption, may make application before the Superior Court, in accordance with the Rules of Court, for an order [for] of reasonable rights of visitation with the child as provided in this section. [It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child.]  The application shall include appropriate acknowledgment or proof of the relationship by blood, half-blood, affinity, or adoption between the applicant and the child in order for the court to proceed in making a determination on an application for reasonable rights of visitation.

     b.    [In making a determination on an application filed pursuant to this section, the court shall consider the following factors: 

     (1)   The relationship between the child and the applicant;

     (2)   The relationship between each of the child's parents or the person with whom the child is residing and the applicant; 

     (3)   The time which has elapsed since the child last had contact with the applicant; 

      (4)  The effect that such visitation will have on the relationship between the child and the child's parents or the person with whom the child is residing; 

     (5)   If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child; 

     (6)   The good faith of the applicant in filing the application;

     (7)   Any history of physical, emotional or sexual abuse or neglect by the applicant; and 

     (8)   Any other factor relevant to the best interests of the child.] (Deleted by amendment, P.L.    , c.    ) (pending before the Legislature as this bill) 

      c.    [With regard to any application made pursuant to this section, it shall be prima facie evidence that visitation is in the child's best interest if the applicant had, in the past, been a full-time caretaker for the child.] (Deleted by amendment, P.L.    , c.    ) (pending before the Legislature as this bill)

     d.    The court shall consider the following factors in making a determination on an application for reasonable rights of visitation:

     (1)   Whether the visitation would be in the best interest of the child;

     (2)   Whether the visitation would interfere with any parent-child relationship, or parent-like relationship between the child and the child's guardian or legal custodian, or with that person's parental or custodial authority over the child;

     (3)   The nature of the relationship between the applicant and the child, including but not limited to, the frequency of contact, and in the case of a grandparent applicant, whether the child has lived with the grandparent and the length of this living arrangement;

     (4)   The nature of the relationship between the applicant and the parent, guardian, or legal custodian of the child, particularly focused on:

     (a)   any friction between the parties, including friction based on any action by the parent, guardian, or legal custodian to unreasonably deprive the applicant of the opportunity to visit with the child, especially if the period of any denied visitation exceeded 90 days; and

     (b)   the effect of any friction between the parties on the child;

     (5)   The circumstances which resulted in the absence of the child's nuclear family, whether by divorce, death, relinquishment or termination of parental rights, or other cause, if applicable;

     (6)   The recommendation regarding visitation made by a guardian ad litem, if any, appointed for the child with respect to any contemporaneous proceeding for divorce, separation, annulment, paternity, or determination of parental rights relating to the child;

     (7)   Any preference expressed by the child, whenever the court has determined that the child is capable of articulating this preference; and

     (8)   Any other factor that the court may find relevant to the application.

     e.     For any order of reasonable rights of visitation granted by a court pursuant to this section, the court may, upon motion of any original party to the proceeding that resulted in the issuance of the order, modify or terminate that order to reflect any changed circumstances of the moving party or other original party to the proceeding.

(cf: P.L.1993, c.161, s.1)

 

     2.    Section 4 of P.L.1991, c.290 (C.9:6B-4) is amended to read as follows:

     4.    A child placed outside his home shall have the following rights, consistent with the health, safety and physical and psychological welfare of the child and as appropriate to the individual circumstances of the child's physical or mental development:

     a.     To placement outside his home only after the applicable department has made every reasonable effort, including the provision or arrangement of financial or other assistance and services as necessary, to enable the child to remain in his home;

     b.    To the best efforts of the applicable department, including the provision or arrangement of financial or other assistance and services as necessary, to place the child , in an expedited manner, first with a suitable, fit, and willing grandparent, whether related by blood, affinity, or adoption, and if not available, then with another relative.  The grandparent or other relative with whom the child is placed may thereafter be added as a party in any court proceeding associated with the department's action to place the child outside his home, by motion of the grandparent or other relative, by any current party to that court proceeding, or by the court's own motion;

     c.     To the best efforts of the applicable department, including the provision or arrangement of financial or other assistance and services as necessary, to place the child in an appropriate setting in his own community;

     d.    To the best efforts of the applicable department to place the child in the same setting with the child's sibling if the sibling is also being placed outside his home; 

     e.     To visit with the child's parents or legal guardian immediately after the child has been placed outside his home and on a regular basis thereafter, and to otherwise maintain contact with the child's parents or legal guardian, and to receive assistance from the applicable department to facilitate that contact, including the provision or arrangement of transportation as necessary; 

     f.     To visit with the child's sibling on a regular basis and to otherwise maintain contact with the child's sibling if the child was separated from his sibling upon placement outside his home, including the provision or arrangement of transportation as necessary; 

     g.    To placement in the least restrictive setting appropriate to the child's needs and conducive to the health and safety of the child; 

     h.    To be free from physical or psychological abuse and from repeated changes in placement before the permanent placement or return home of the child; 

     i.     To have regular contact with any caseworker assigned to the child's case who is employed by the applicable department or any agency or organization with which the applicable department contracts to provide services and the opportunity, as appropriate to the age of the child, to participate in the planning and regular review of the child's case, and to be informed on a timely basis of changes in any placement plan which is prepared pursuant to law or regulation and the reasons therefor in terms and language appropriate to the child's ability to understand;

     j.     To have a placement plan, as required by law or regulation, that reflects the child's best interests and is designed to facilitate the permanent placement or return home of the child in a timely manner that is appropriate to the needs of the child;

     k.    To services of a high quality that are designed to maintain and advance the child's mental and physical well-being; 

     l.     To be represented in the planning and regular review of the child's case, including the placement and development of, or revisions to, any placement plan which is required by law or regulation and the provision of services to the child, the child's parents or legal guardian and the temporary caretaker, by a person other than the child's parent or legal guardian or temporary caretaker who will advocate for the best interests of the child and the enforcement of the rights established pursuant to this act, which person may be the caseworker, as appropriate, or a person appointed by the court for this purpose; 

     m.   To receive an educational program which will maximize the child's potential;

     n.    To receive adequate, safe and appropriate food, clothing and housing;

      o.   To receive adequate and appropriate medical care; and

      p.   To be free from unwarranted physical restraint and isolation.

(cf: P.L.1991, c.290, s.4)

 

     3.    The New Jersey Supreme Court may adopt Rules of Court to effectuate the purposes of this act.

 

     4.    This act shall take effect immediately, and apply to any visitation petition filed or not yet finally adjudicated, or any placement of a child outside the child's home in accordance with the "Child Placement Bill of Rights Act," P.L.1991, c.290 (C.9:6B-1 et seq.), on or after the effective date.

 

 

STATEMENT

 

     This bill concerns non-parental visitation and temporary custody rights related to a minor child.  The bill has two parts: (1) it updates the statutory factors for consideration for grandparent and sibling visitation petitions seeking visitation with a related child over the objections of the child's parent, guardian, or legal custodian; and (2) it adds a preference for temporary placement of a child with a grandparent, as a matter of right for the child under the "Child Placement Bill of Rights Act," P.L.1991, c.290 (C.9:6B-1 et seq.), when a child, due to some State or local governmental action, is being placed outside the child's home.

     With respect to visitation petitions, the bill's provisions would be applied within the constitutional framework established by the seminal United States Supreme Court decision on contested third-party visitation, Troxel v. Granville, 530 U.S. 57 (2000).  The updated statutory factors presented in the bill are primarily based upon factors articulated under New Hampshire statutory law, N.H. Rev. Stat. Ann. 461-A:13.  The bill would require a court to consider the following factors in making a determination on a visitation application:

     (1)   Whether the visitation would be in the best interest of the child;

     (2)   Whether the visitation would interfere with any parent-child relationship, or parent-like relationship between the child and the child's guardian or legal custodian, or with that person's parental or custodial authority over the child;

     (3)   The nature of the relationship between the applicant and the child, including but not limited to, the frequency of contact, and in the case of a grandparent applicant, whether the child has lived with the grandparent and the length of this living arrangement;

     (4)   The nature of the relationship between the applicant and the parent, guardian, or legal custodian of the child, particularly focused on:

     (a)   any friction between the parties, including friction based on any action by the parent, guardian, or legal custodian to unreasonably deprive the applicant of the opportunity to visit with the child, especially if the period of any denied visitation exceeded 90 days; and

     (b)   the effect of any friction between the parties on the child;

     (5)   The circumstances which resulted in the absence of the child's nuclear family, whether by divorce, death, relinquishment or termination of parental rights, or other cause, if applicable;

     (6)   The recommendation regarding visitation made by a guardian ad litem, if any, appointed for the child with respect to any contemporaneous proceeding for divorce, separation, annulment, paternity, or determination of parental rights relating to the child;

     (7)   Any preference expressed by the child, whenever the court has determined that the child is capable of articulating this preference; and

     (8)   Any other factor that the court may find relevant to the application.

     With respect to matters of temporary custody when a child is being placed outside the child's home due to some action by the Department of Human Services, the Department of Children and Families, or a board of education, the bill would add a preference for temporary placement of the child, in an expedited manner, with a "suitable, fit, and willing grandparent."  If not available, then another relative would be considered for the child's temporary placement.  This preference for placement first with a grandparent would be established as a matter of right for the child under the "Child Placement Bill of Rights Act," P.L.1991, c.290 (C.9:6B-1 et seq.).

     In addition to providing an order of preference amongst grandparents and other relatives concerning the child's placement, the bill also provides that a grandparent or other relative with whom the child is placed could be added as a party in any court proceeding associated with the action to place the child outside the child's home, based on a motion by the grandparent or other relative, by a current party to that court proceeding, or by the court's own motion.

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