A4802

An Act concerning guardianship for incapacitated persons, amending N.J.S.3B:12-25 and P.L.1991, c.261, and supplementing Title 2A of the New Jersey Statutes.

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

1. N.J.S.3B:12-25 is amended to read as follows:

3B:12-25. Appointment of guardian.

a. The Superior Court may determine the incapacity of an alleged incapacitated person and appoint a guardian for the person, guardian for the estate or a guardian for the person and estate. [Letters] Except as provided in subsection c., letters of guardianship shall be granted to the spouse or domestic partner as defined in section 3 of P.L.2003, c.246 (C.26:8A-3), if the spouse is living with the incapacitated person as man and wife or as a domestic partner as defined in section 3 of P.L.2003, c.246 (C.26:8A-3) at the time the incapacitation arose, or to the incapacitated person's heirs, or friends, or thereafter first consideration shall be given to the Office of the Public Guardian for Elderly Adults in the case of adults within the statutory mandate of the office, or if none of them will accept the letters or it is proven to the court that no appointment from among them will be to the best interest of the incapacitated person or the estate, then to any other proper person as will accept the same, and if applicable, in accordance with the professional guardianship requirements of P.L.2005, c.370 (C.52:27G-32 et al.). Consideration may be given to surrogate decision-makers, if any, chosen by the incapacitated person before the person became incapacitated by way of a durable power of attorney pursuant to section 4 of P.L.2000, c.109 (C.46:2B-8.4), health care proxy or advance directive.

b. The Office of the Public Guardian for Elderly Adults shall have the authority to not accept guardianship in cases determined by the public guardian to be inappropriate or in conflict with the office.

c. Letters of guardianship shall not be granted to any person who is a party in any civil action, or for whom or against whom a temporary or final civil order has been entered, including but not limited to, a temporary restraining order pursuant to section 12 of P.L.1991, c.261 (C.2C:25-28) or a final restraining order pursuant to section 13 of P.L.1991, c.261 (C.2C:25-29) of the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et seq.), that names the incapacitated person as an opposing party to the action.

d. Letters of guardianship entered prior to the filing of a civil action or prior to the filing of a complaint alleging the commission of an act of domestic violence pursuant to the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et seq.), shall be subject to judicial review.

(cf: P.L. 2005, c.370, s.13)

2. Section 10 of P.L. 1991, c.261 (C.2C:25-26) is amended to read as follows:

10. a. When a defendant charged with a crime or offense involving domestic violence is released from custody before trial on bail or personal recognizance, the court authorizing the release may as a condition of release issue an order prohibiting the defendant from having any contact with the victim including, but not limited to, restraining the defendant from entering the victim's residence, place of employment or business, or school, and from harassing or stalking the victim or the victim's friends, co-workers, or relatives in any way. If the victim is pregnant, at the victim's request the court may order that the victim's child shall, immediately upon birth, be included in the order. The court may also enter an order prohibiting the defendant from having any contact with any animal owned, possessed, leased, kept, or held by either party or a minor child residing in the household. In addition, the court may enter an order directing the possession of the animal and providing that the animal shall not be disposed of prior to the disposition of the crime or offense. The court may enter an order prohibiting the defendant from possessing any firearm or other weapon enumerated in subsection r. of N.J.S.2C:39-1 and ordering the search for and seizure of any such 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.

b. The written court order releasing the defendant shall contain the court's directives specifically restricting the defendant's ability to have contact with the victim, the victim's friends, co-workers, or relatives, or any animal owned, possessed, leased, kept, or held by either party or a minor child residing in the household. The prosecutor shall provide a copy of this order to the victim forthwith.

c. The victim's location shall remain confidential and shall not appear on any documents or records to which the defendant has access.

d. Before bail is set, the defendant's prior record shall be considered by the court, and a determination shall be made as to whether the defendant is a ward of, or has been appointed as a guardian of the person or property of, the victim or any person residing in the same household as the victim. The court shall also conduct a search of the domestic violence central registry. Bail shall be set as soon as is feasible, but in all cases within 24 hours of arrest.

e. Once bail is set it shall not be reduced without prior notice to the county prosecutor and the victim. Bail shall not be reduced by a judge other than the judge who originally ordered bail, unless the reasons for the amount of the original bail are available to the judge who reduces the bail and are set forth in the record.

f. A victim shall not be prohibited from applying for, and a court shall not be prohibited from issuing, temporary restraints pursuant to this act because the victim has charged any person with commission of a criminal act.

(cf: P.L.2023, c.239, s.1)

3. 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.

f. A plaintiff may seek emergency, ex parte relief in the nature of a temporary restraining order. A plaintiff who is an incapacitated person or the plaintiff’s representative shall disclose to the court whether the defendant is appointed as the guardian of the person or estate, or is under consideration, pursuant to N.J.S.3B:12-25 et seq., or a substantially similar statute under the laws of another state or the United States, for appointment to the role of guardian. 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. Prior to the issuance of any temporary or final restraining order pursuant to this section, the court shall make a determination as to whether the plaintiff:

(1) has been determined to be an incapacitated person in need of guardianship services pursuant to N.J.S.3B:12-25 et seq., or a substantially similar statute under the laws of another state or the United States, or

(2) is appointed as the guardian of the person or the estate of the defendant.

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. (1) 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.

(2) The Administrative Office of the Court shall prepare standard templates for temporary restraining orders in English, Spanish, and the other high-demand languages identified in its Language Access Plan as approved by the Supreme Court. These templates shall be available for law enforcement, judges of the Municipal Court, and judges and staff of the Superior Court to provide to the victim and defendant when issuing temporary restraining orders pursuant to this section.

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 along with a copy of the translated order, if applicable, 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. 2023, c.234, s.2)

4. Section 13 of P.L. 1991, c.261 (C.2C:25-29) is amended to read as follows:

13. a. Except as otherwise provided in this subsection, 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. If there are law enforcement records related to an incident which is the subject of a complaint or the domestic violence history described in the complaint, and the plaintiff has requested the records, the court shall grant plaintiff's request for an adjournment if reasonably needed to collect evidence contained in the law enforcement records. If the plaintiff has requested records from a law enforcement agency pursuant to section 1 of P.L.2023, c.322 (C.2C:25-23.1), but has not received the records as of the date of the original or rescheduled hearing, the law enforcement agency's failure to provide the requested records shall be noted on the record prior to the court making a final determination on the request for restraints. The absence of law enforcement records shall not be a basis to deny relief pursuant to this section. At the hearing the standard for proving the allegations in the complaint shall be by a preponderance of the evidence.

In considering the necessity of ordering a restraining order 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;

(6) The existence of a verifiable order of protection from another jurisdiction; and

(7) Any pattern of coercive control against a person that in purpose or effect unreasonably interferes with, threatens, or exploits a person's liberty, freedom, bodily integrity, or human rights with the court specifically considering evidence of the need for protection from immediate danger or the prevention of further abuse. If the court finds that one or more factors of coercive control are more or less relevant than others, the court shall make specific written findings of fact and conclusions of law on the reasons why the court reached that conclusion. Coercive control may include, but shall not be limited to:

(a) isolating the person from friends, relatives, transportation, medical care, or other source of support;

(b) depriving the person of basic necessities;

(c) monitoring the person's movements, communications, daily behavior, finances, economic resources, or access to services;

(d) compelling the person by force, threat, or intimidation, including, but not limited to, threats based on actual or suspected immigration status;

(e) threatening to make or making baseless reports to the police, courts, the Division of Child Protection and Permanency (DCPP) within the Department of Children and Families, the Board of Social Services, Immigration and Customs Enforcement (ICE), or other parties;

(f) threatening to harm or kill the individual's relative or pet;

(g) threatening to deny or interfere with an individual's custody or parenting time, other than through enforcement of a valid custody arrangement or court order pursuant to current law including, but not limited to, an order issued pursuant to Title 9 of the Revised Statutes; or

(h) any other factors or circumstances that the court deems relevant or material.

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.

The Administrative Office of the Courts shall prepare standard templates for final restraining orders in English, Spanish and the other high-demand languages identified in its Language Access Plan as approved by the Supreme Court. These templates shall be available for judges and staff of the Superior Court Family Part to provide to the victim and defendant when issuing final restraining orders pursuant to this section.

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) (a) 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.

(b) An order that the landlord of a residential dwelling unit shall change the locks on the dwelling unit in which the victim resides pursuant to section 2 of P.L.2023, c.174 (C.46:8-9.14).

(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 replacing locks pursuant to section 2 of P.L.2023, c.174 (C.46:8-9.14), 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 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) At the plaintiff's request, an order providing that, if the plaintiff is pregnant, the plaintiff's child shall be included in the restraining order immediately upon birth.

(21) An order removing the defendant or plaintiff, as appropriate, as the guardian of the person or estate of the plaintiff or defendant, as appropriate, or denying consideration, pursuant to N.J.S.3B:12-25 et seq., or a substantially similar statute under the laws of another state or the United States, for appointment to the role of guardian for the plaintiff or defendant, as appropriate.

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.

f. A final judgment rendered in favor of the State in any criminal proceeding brought pursuant to the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et seq.) shall estop the defendant from denying the same conduct in any proceeding brought pursuant to this section.

g. In connection with a pending complaint filed with the Superior Court, Chancery Division, Family Part, pursuant to the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.), a party to the complaint may request the release or unsealing of expunged records, or sealed records under prior law, or prior arrests or convictions related to previous complaints filed pursuant to the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.) involving both parties.

h. Expunged records, or sealed records under prior law, of prior arrests or convictions shall be provided to any party, county prosecutor, Criminal Division of the Superior Court, or the Attorney General when requested for use in conjunction with proceedings related to any of the following matters:

(1) a temporary or final restraining order or a weapons forfeiture complaint filed in the Superior Court, Chancery Division, Family Part, pursuant to the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.); and

(2) a temporary or final extreme risk protection order complaint filed in the Superior Court pursuant to the "Extreme Risk Protective Order Act of 2018," P.L.2018, c.35 (C.2C:58-20 et al.).

(cf: P.L.2023, c.322, s.2)

5. (New section) Sections five through seven of this act shall be known as and may be cited as the “Safe Guardianship Act.”

6. (New section) a. In every civil action, the court shall determine whether any party is appointed as guardian of the person or property of any opposing party.

b. The court shall notify the Surrogate of the county that appointed a guardian of the person or estate of a party to a civil action, including but not limited to an action in which a temporary or permanent domestic violence restraining order pursuant to pursuant to section 12 of P.L.1991, c.261 (C.2C:25-28) or a final restraining order pursuant to section 13 of P.L.1991, c.261 (C.2C:25-29) of the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et seq.), that a civil order has been entered.

7. This act shall take effect immediately.

STATEMENT

This bill modifies the law concerning the appointment of a guardian of the person or estate of an incapacitated person to prohibit the appointment of an individual who is an opposing party to the ward in a civil matter. The bill is intended to prevent the exposure of the person or property of a ward, a person determined to be in need of protective service, to control by an individual with opposing interests.

The bill amends N.J.S.3B:12-25, concerned with the appointment of a guardian for incapacitated persons, to provide that letters of guardianship shall not be granted to any person who is named in a civil action that is pending. Letters of guardianship shall also not be granted to any person for whom or against whom a temporary or final civil order has been entered, including but not limited to, a temporary restraining order pursuant to P.L.1991, c.261 (C.2C:25-17 et seq.), the "Prevention of Domestic Violence Act of 1991," that names the incapacitated person as an opposing party to the action. This type of civil order is highlighted because a spouse or domestic partner is presumptively named as guardian under N.J.S.3B:12-25, barring proof that the appointment would not be in the best interest of the incapacitated person. Under the bill, letters of guardianship, which are entered prior to the filing of a civil action or prior to the filing of a complaint alleging the commission of an act of domestic violence, will be subject to judicial review.

The bill amends N.J.S.2C:25-26 to require that when a defendant charged with a crime or offense involving domestic violence is released from custody the court shall make a determination as to whether the defendant is a ward of, or is appointed as guardian to the person or property of, the victim or any person residing in the same household as the victim.

The bill amends N.J.S.2C:25-28 to require that, when a plaintiff in a domestic violence matter seeks emergency ex parte relief in the form of a temporary restraining order, the court, in determining the necessity of the order, shall inquire whether the plaintiff has been determined to be an incapacitated person in need of guardianship services, pursuant to N.J.S.3B:12-25 et seq. or a substantially similar law of another state or federal law, or is appointed as the guardian of the person or the estate of the defendant. A plaintiff who is an incapacitated person or the plaintiff’s representative shall disclose to the court whether the defendant is appointed as the guardian of the person or estate, or is under consideration, pursuant to N.J.S.3B:12-25 et seq. or a substantially similar law of another state or federal law, for appointment to the role of guardian. Before issuing any temporary or final restraining order the court shall determine that the defendant is not appointed as the guardian of the person or estate of the plaintiff, and that the plaintiff is not appointed as the guardian of the person or estate of the defendant.

The bill amends N.J.S.2C:25-29 to grant the court, in a domestic violence matter, the authority to order removing the defendant or plaintiff, as appropriate, as the guardian of the person or estate of the plaintiff or defendant, or denying consideration, pursuant to the guardianship laws of this state or under the laws of another state or the United States, for appointment to the role of guardian for the plaintiff or defendant.

The bill adds a new, civil actions general provision, to direct that in every civil action, the court shall determine whether any party is appointed as guardian of the person or property to any opposing party. Under the bill, the court is also required to notify the surrogate of the county that appointed a guardian to the person or estate of a party to a civil action that a civil order has been entered. The new provisions of law shall be known as and may be cited as the “Safe Guardianship Act.”