Protect Children from Custody with Sex Offenders

A331 amends N.J.S. 9:2-4.1, the existing statute that bars persons convicted of certain crimes from receiving custody of or visitation rights to a minor child. The American Council urges every member of the Assembly Judiciary Committee and the full Legislature to vote yes and send this bill to the Governor.

Under the current version of subsection (a), the bar on custody and visitation applies to a person convicted of sexual assault under N.J.S.2C:14-2. A331 adds the words "or an equivalent crime under the laws of another jurisdiction," so that a conviction from another state or jurisdiction for conduct equivalent to New Jersey's sexual-assault statute is equally disqualifying. The bill preserves the existing exception: even a person who falls within the bar may still be awarded custody or visitation upon a showing by clear and convincing evidence that doing so is in the best interest of the child. It also preserves the existing requirement that any court which does award such custody or visitation must stay enforcement of that order for at least 10 days to allow appeal.

The more substantial changes are to subsection (b). Current subsection (b) bars custody and visitation for persons convicted of sexual contact under N.J.S.2C:14-3 or endangering the welfare of a child under N.J.S.2C:24-4. A331 reorganizes that subsection into numbered paragraphs and replaces the previous two-crime list with an expanded enumerated list. Critically, endangering the welfare of a child under N.J.S.2C:24-4 is removed as a standalone disqualifying offense from subsection (b); it no longer appears there on its own terms. Readers and constituents should understand that this is a structural change: endangering the welfare of a child is retained in the statute only as a predicate for the luring-or-enticing trigger described below, not as an independent bar.

The new subsection (b)(1) bars custody and visitation for any person convicted of any of the following crimes, or an equivalent crime under the laws of another jurisdiction: (a) first-degree kidnapping under paragraph (2) of subsection c. of N.J.S.2C:13-1; (b) criminal sexual contact under N.J.S.2C:14-3; (c) luring or enticing a child under N.J.S.2C:13-6, but only if that person has also at any time been convicted under N.J.S.2C:14-2, or subsection a. of N.J.S.2C:14-3, or N.J.S.2C:24-4 -- the luring offense is disqualifying only when accompanied by one of those prior convictions; (d) human trafficking under paragraph (1) of subsection a. of N.J.S.2C:13-8, but only when the conviction is based on knowingly holding, recruiting, luring, enticing, harboring, transporting, providing or obtaining, by any means, another, to engage in sexual activity as defined in paragraph (2) of subsection a. of N.J.S.2C:34-1 -- human trafficking convictions not involving that specific sexual-activity element are not covered by this provision; (e) lewdness under paragraph (1) of subsection b. of N.J.S.2C:14-4; and (f) promoting prostitution of a child under the age of 18, promoting prostitution of the actor's child, or engaging in prostitution with a child under the age of 18 under paragraphs (3), (4), or (7) of subsection b. of N.J.S.2C:34-1.

As with subsection (a), the out-of-jurisdiction equivalency rule applies to every offense listed in subsection (b)(1), and the same clear-and-convincing best-interest exception is preserved: a court may still award custody or visitation to a person who falls within subsection (b)(1) upon that showing. The bill's new subsection (b)(2) requires any court that does so to stay enforcement of the order for at least 10 days to permit appeal -- a requirement now expressly tied to "the crimes set forth in paragraph (1) of this subsection" rather than to the prior two-crime list.

Two existing protections are carried forward unchanged and deserve explicit note. First, subsection (c) provides that a denial of custody or visitation under this section does not by itself terminate the parental rights of the person denied, and does not relieve that person of the obligation to support the minor child. Second, subsection (d) provides that in any proceeding to establish or enforce that support obligation, the victim shall not be required to appear in the presence of the obligor, and the victim's and child's whereabouts shall be kept confidential. These protections for victims and children remain intact under A331.

The bill takes effect immediately upon enactment.

From the Council's perspective, the expansion of disqualifying offenses to cover first-degree kidnapping, sexual exploitation through trafficking and prostitution, and lewdness against children reflects the plain moral reality that a child's safety cannot depend on the narrow accident of which specific statute a predator happened to be convicted under. The extension of these bars to equivalent out-of-state convictions closes what is, in our view, an obvious and unjustifiable gap: a person who committed the same harmful conduct in another state should not gain an advantage in a New Jersey custody proceeding simply because their conviction carries a different statutory label. We urge passage of A331 without delay.