An Act concerning changes in child custody during active military duty and amending R.S. 9:2-4.

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

1. R.S. 9:2-4 is amended to read as follows:

9:2-4. The Legislature finds and declares that it is in the public policy of this State to assure minor children of frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy.

In any proceeding involving the custody of a minor child, the rights of both parents shall be equal and the court shall enter an order which may include:

a. Joint custody of a minor child to both parents, which is comprised of legal custody or physical custody which shall include: (1) provisions for residential arrangements so that a child shall reside either solely with one parent or alternatively with each parent in accordance with the needs of the parents and the child; and (2) provisions for consultation between the parents in making major decisions regarding the child's health, education and general welfare;

b. Sole custody to one parent with appropriate parenting time for the noncustodial parent; or

c. Any other custody arrangement as the court may determine to be in the best interests of the child.

In making an award of custody, the court shall consider but not be limited to the following factors: the parents' ability to agree, communicate and cooperate in matters relating to the child; the parents' willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child's education; the fitness of the parents; the geographical proximity of the parents' homes; the extent and quality of the time spent with the child prior to or subsequent to the separation; the parents' employment responsibilities; and the age and number of the children. A parent shall not be deemed unfit unless the parents' conduct has a substantial adverse effect on the child.

The court, for good cause and upon its own motion, may appoint a guardian ad litem or an attorney or both to represent the minor child's interests. The court shall have the authority to award a counsel fee to the guardian ad litem and the attorney and to assess that cost between the parties to the litigation.

d. The court shall order any custody arrangement which is agreed to by both parents unless it is contrary to the best interests of the child.

e. In any case in which the parents cannot agree to a custody arrangement, the court may require each parent to submit a custody plan which the court shall consider in awarding custody.

f. The court shall specifically place on the record the factors which justify any custody arrangement not agreed to by both parents.

g. 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 judgment or order previously entered, or enter a new order that permanently alters the custody arrangement in existence on the date the parent was called to active military duty. The court may enter a temporary custody order if there is clear and convincing evidence that it is in the best interest of the child.

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.

(cf: P.L.1997, c.299, s.9)

2. This act shall take effect immediately.

STATEMENT

This bill provides 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. Under the bill, the court may enter a temporary custody order if there is clear and convincing evidence that it is in the best interest of the child.

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.