RULE 5:1. COGNIZABILITY OF ACTIONS; SCOPE AND APPLICABILITY OF RULES
5:1-1. Scope and Applicability of Rules
The rules in Part V shall govern family actions. All family actions shall also be governed by the rules in Part I insofar as applicable. Civil family actions shall also be governed by the rules in Part IV insofar as applicable and except as otherwise provided by the rules in Part V. Criminal and quasi-criminal family actions shall also be governed by the rules in Part III insofar as applicable except as otherwise provided by the rules in Part V. Juvenile delinquency actions shall be governed by the rules in Part III insofar as applicable and except as otherwise provided by the rules in Part V.
5:1-2. Actions Cognizable
The following actions shall be cognizable in the Family Part:
(a) Civil Family Actions Generally. All civil actions in which the principal claim is unique to and arises out of a family or family-type relationship shall be brought in the Family Part. Such actions shall include all actions and proceedings provided for in Chapters II and III of Part V; all civil actions and proceedings formerly designated as matrimonial actions; all civil actions and proceedings formerly cognizable in the Juvenile and Domestic Relations Court; and all other civil actions and proceedings unique to and arising out of a family or a family-type relationship.
(b) Juvenile Delinquency Actions.
(c) Criminal and Quasi-Criminal Actions.
(1) Criminal actions brought pursuant to N.J.S. 2C:24-5 (willful nonsupport) shall be prosecuted in the Family Part subject to transfer to the Law Division pursuant to R. 3:1-5(b) in the event the defendant is entitled to and demands trial by jury.
(2) All other indictable offenses pending in the Law Division may be transferred to the Family Part for trial and disposition pursuant to R. 3:1-5 provided that (A) the gravamen of the offense charged arises out of a family or a family-type relationship between the defendant and a victim, (B) the defendant has waived trial by jury pursuant to R. 1:8-1, (C) the defendant and the prosecutor have both consented to such transfer.
(3) Any non-indictable offense or violation pending in the municipal court and any indictable offense within the trial jurisdiction of the municipal court may be transferred for trial and disposition to the Family Part pursuant to R. 5:1-3(b) provided that the gravamen of the offense or violation arises out of a family or family-type relationship between the defendant and a victim.
5:1-3. Transfer of Actions to and From the Family Part
(a) Civil Actions. The transfer of civil family actions to or from the Family Part to or from any other trial division or part of a trial division of the Superior Court shall be governed by R. 4:3-1(b).
(b) Criminal and Quasi-Criminal Actions.
(1) The transfer of criminal actions between the Law Division and the Family Part shall be governed by R. 3:1-5.
(2) The transfer of proceedings pending in a municipal court shall be on motion made by the defendant, the complaining witness or the municipal prosecutor. If there is a pending Family Part matter the motion shall be made to the judge assigned to that case and if no judge has been assigned, then to the presiding judge of that vicinage. If there is no pending Family Part matter, then the motion should be made to the presiding judge of the Family Part where the municipal court is located.
(c) Juvenile Delinquency Actions. The transfer of juvenile delinquency actions between the Family Part and other courts shall be governed by R. 5:23. The referral of a juvenile delinquency action to the Law Division for prosecution as in the case of an adult shall be governed by R. 5:22.
5:1-4. Differentiated Case Management in Civil Family Actions
(a) Case Management Tracks; Standards for Assignment. Except for summary actions, every civil family action shall be assigned, subject to reassignment as provided by paragraph (c) of this rule, to one of the following tracks as follows:
(1) Priority Track. The action shall be assigned to the priority track if it involves contested custody or parenting time issues.
(2) Complex Track. The action shall be assigned to the complex track for judicial management if it appears likely that it will require a disproportionate expenditure of court and litigant resources in preparation for trial and at trial because of the number of parties involved, the number of claims and defenses raised, the legal difficulty of the issues presented, the factual difficulty of the subject matter, the length and complexity of discovery, or a combination of these or other factors.
(3) Expedited Track. The action shall be assigned to the expedited track if it appears that it can be promptly tried with minimal pretrial proceedings, including discovery. Subject to re-assignment as provided by paragraph (c) of this rule, a dissolution action shall be assigned to the expedited track if (A) there is no dispute as to either the income of the parties or the identifiable value of the marital assets and no issue of custody or parenting time has been raised; (B) the parties have been married less than five years and have no children; (C) the parties have entered into a property settlement agreement; or (D) the action is uncontested.
(4) Standard Track. Any action not qualifying for assignment to the priority track, complex track, or expedited track shall be assigned to the standard track.
(b) Procedure for Track Assignment. The Family Presiding Judge or a judge designated by the Family Presiding Judge shall make the track assignment as soon as practicable after all parties have filed Case Information Statements required by R. 5:5-2 or after the case management conference required by R. 5:5-6, whichever is earlier. The track assignment shall not, however, precede the filing of the first responsive pleading in the action. In making the track assignment, due consideration shall be given to an attorney's request for track assignment. If all the attorneys agree on a track assignment, the case shall not be assigned to a different track except for good cause shown and after giving all attorneys the opportunity to be heard, in writing or orally. If it is not clear from an examination of the information provided by the parties which track assignment is most appropriate, the case shall be assigned to the track that affords the greatest degree of management. The parties shall be promptly advised by the court of the track assignment.
(c) Track Reassignment. An action may be reassigned to a track other than that specified in the original notice to the parties either on the court's own motion or on application of a party. Unless the court otherwise directs, such application may be made informally to the Family Presiding Judge or to a judge designated by the Family Presiding Judge and shall state with specificity the reasons therefor.
RULE 5:2. VENUE
5:2-1. Venue, Where Laid
Venue in family actions shall be laid in accordance with the applicable provisions of R. 3:14-1 and R. 4:3-2 except as follows:
(a) In actions primarily involving the welfare, support, protection and status of children (except actions for adoption or termination of parental rights and except actions in which issues of custody, parenting time or visitation, and support are joined with claims for divorce or nullity) shall be laid in the county in which the child is domiciled.
In actions involving custody of children where one party or the child does not presently reside in New Jersey, venue shall be laid in the county designated by the courts of the child's home state, which is defined as the state where the child, immediately preceding the time involved, lived with his or her parents, a parent, or a person acting as parent, for at least six consecutive months, unless it is found to be in the best interest of the child for another state to accept jurisdiction.
(b) In divorce and nullity actions, venue shall be laid in accordance with R. 5:7-1.
(c) In actions for adoption, venue shall be laid in accordance with R. 5:10-1.
(d) In actions for termination of parental rights, venue shall be laid in accordance with R. 5:9-1.
(e) In juvenile delinquency actions, venue shall be laid in accordance with R. 5:19-1.
5:2-2. Change of Venue
Change of venue in family actions shall be governed, as applicable, by R. 3:14-2 (criminal actions), R. 4:3-3 (civil actions) and R. 5:19-1 (juvenile delinquency actions).
RULE 5:3. GENERAL PROVISIONS FOR FAMILY ACTIONS
The provisions of R. 5:3 shall apply to all family actions except as is otherwise provided by these rules for juvenile delinquency actions and criminal and quasi-criminal actions tried in the Family Part.
5:3-2. Closed Hearings; Record
(a) Hearings on Welfare or Status of a Child. Except as otherwise provided by rule or statute requiring full or partial in camera proceedings, the court, in its discretion, may on its own or party's motion direct that any proceeding or severable part thereof involving the welfare or status of a child be conducted in private. In the child's best interests, the court may further order that a child not be present at a hearing or trial unless the testimony, which may be taken privately in chambers or under such protective orders as the court may provide, is necessary for the determination of the matter. A verbatim record shall, however, be made of all in camera proceedings, including in-chamber testimony by or interrogation of a child.
(b) Sealing of Records. The court, upon demonstration of good cause and notice to all interested parties, shall have the authority to order that a Family Part file, or any portion thereof, be sealed.
5:3-3. Appointment of Experts
(a) Medical, Psychological and Social Experts. Whenever the court, in its discretion, concludes that disposition of an issue will be assisted by expert opinion, and whether or not the parties propose to offer or have offered their own experts' opinions, the court may order any person under its jurisdiction to be examined by a physician, psychiatrist, psychologist or other health or mental health professional designated by it. No such appointment, however, shall be made of an expert who is providing or has provided therapy to any member of that person's family. The court may also direct who shall pay the cost of such examination. The court may also require a social investigation by a probation officer or other person at any time during the proceeding before it.
(b) Economic Experts. Whenever the court concludes that disposition of an economic issue will be assisted by expert opinion, it may in the same manner as provided in Paragraph (a) of this rule appoint an expert to appraise the value of any property or to report and recommend as to any other issue, and may further order any person or entity to produce documents or to make available for inspection any information or property, which is not privileged, that the court determines is necessary to aid the expert in rendering an opinion. The court may also direct who shall pay the cost of such expert appraisal or report.
(c) Selection of Experts. Experts appointed hereunder may be selected by the mutual agreement of the parties or independently by the court. The court shall establish the scope of the expert's assignment in the order of appointment. Neither party shall be bound by the report of the expert so appointed.
(d) Investigation by Experts. Any expert appointed by the court shall be permitted to conduct an investigation independently to obtain information reasonable and necessary to complete his or her report from any source, and may make contact directly with any party from whom information is sought within the scope of the order of appointment. The parties shall be entitled to have their attorneys and/or experts present during any examination by a court appointed expert. The expert shall not communicate with the court except upon prior notice to the parties and their attorneys who shall be afforded an opportunity to be present and to be heard during any such communication between the expert and the court. A request for communication with the court may be informally conveyed by the expert by letter or telephonic means, where after further communications with the court, which may be conducted informally by conference or conference call, shall be done only with the participation of the parties and their counsel.
(e) Submission of Report. Any finding or report by an expert appointed by the court shall be submitted upon completion to both the court and the parties. The parties shall thereafter be permitted a reasonable opportunity to conduct discovery in regard thereto, including, but not limited to, the right to take the deposition of the expert.
(f) Use of Evidence. An expert appointed by the court shall be subject to the same examination as a privately retained expert and the court shall not entertain any presumption in favor of the appointed expert's findings. Any finding or report by an expert appointed by the court may be entered into evidence upon the court's own motion or the motion of any party in a manner consistent with the rules of evidence, subject to cross-examination by the parties.
(g) Use of Private Experts. Nothing in this rule shall be construed to preclude the parties from retaining their own experts, either before or after the appointment of an expert by the court, upon the same or similar issues.
5:3-4. Counsel: Appearance; Prosecutor
(a) Right to Counsel; Public Defender; Assignment of Counsel. In all matters the parties shall have the right to be represented by counsel. In family matters the court shall advise the juvenile and the juvenile's parents, guardian, or custodian of their right to retain counsel and, if counsel is not otherwise provided for the family and if the matter may result in the institutional commitment or other consequence of magnitude to any family member, or if any family member is constitutionally or by law entitled to counsel, the court shall refer the family member to the Office of the Public Defender, if appropriate, or assign other counsel to represent the juvenile or family member. The court may, depending upon the financial circumstances of the parents, guardian or custodian, order them to pay the fee of assigned counsel in such amount as it fixes. The court shall also assign counsel to represent indigents in family actions where a party is by constitution, state or federal, or by law entitled to counsel and there is no publicly-funded source of representation available.
(b) Appearances. Where no answer is filed, attorneys representing any party to a proceeding shall enter their appearances promptly with the clerk of the court and, insofar as practicable, shall notify the clerk of the length of time it is anticipated the hearing or trial will take. In summary actions the attorneys, no later than 5 days prior to the date set for the hearing or trial, shall notify the clerk as to whether the matter is contested or uncontested. The parties and their counsel shall be afforded a reasonable time in which to prepare for the hearing or trial in all matters.
(c) Prosecuting Attorney. Whenever required by statute or rule the county prosecutor shall prosecute the complaint on behalf of the State. In any matter where the interest of justice so requires, the court may request the attorney general, the county prosecutor, the municipal attorney or the school board attorney, as appropriate, to appear and prosecute the complaint.
5:3-5. Attorney Fees and Retainer Agreements in Civil Family Actions; Withdrawal
(a) Retainer Agreements. Except where no fee is to be charged, every agreement for legal services to be rendered in a civil family action shall be in writing signed by the attorney and the client, and an executed copy of the agreement shall be delivered to the client. The agreement shall have annexed thereto the Statement of Client Rights and Responsibilities in Civil Family Actions in the form appearing in Appendix XVIII of these rules and shall include the following:
(1) a description of legal services anticipated to be rendered;
(2) a description of the legal services not encompassed by the agreement, such as real estate transactions, municipal court appearances, tort claims, appeals, and domestic violence proceedings;
(3) the method by which the fee will be computed;
(4) the amount of the initial retainer and how it will be applied;
(5) when bills are to be rendered, which shall be no less frequently than once every ninety days, provided that services have been rendered during that period; when payment is to be made; whether interest is to be charged, provided, however, that the running of interest shall not commence prior to thirty days following the rendering of the bill; and whether and in what manner the initial retainer is required to be replenished;
(6) the name of the attorney having primary responsibility for the client's representation and that attorney's hourly rate; the hourly rates of all other attorneys who may provide legal services; whether rate increases are agreed to, and, if so, the frequency and notice thereof required to be given to the client;
(7) a statement of the expenses and disbursements for which the client is responsible and how they will be billed;
(8) the effect of counsel fees awarded on application to the court pursuant to paragraph (c) of this rule; and
(9) the right of the attorney to withdraw from the representation, pursuant to paragraph (d) of this rule, if the client does not comply with the agreement.
(b) Limitations on Retainer Agreements. During the period of the representation, an attorney shall not take or hold a security interest, mortgage, or other lien on the client's property interests to assure payment of the fee. This Rule shall not, however, prohibit an attorney from taking a security interest in the property of a former client after the conclusion of the matter for which the attorney was retained, provided the requirements of R.P.C. 1.8(a) shall have been satisfied. Nor shall the retainer agreement include a provision for a non-refundable retainer. Contingent fees pursuant to R. 1:21-7 shall only be permitted as to claims based on the tortious conduct of another, and if compensation is contingent, in whole or in part, there shall be a separate contingent fee arrangement complying with R. 1:21-7. No services rendered in connection with the contingent fee representation shall be billed under the retainer agreement required by paragraph (a) of this rule, nor shall any such services be eligible for an award of fees pursuant to paragraph (c) of this rule.
(c) Award of Attorney Fees. Subject to the provisions of R. 4:42-9(b), (c), and (d), the court in its discretion may make an allowance, both pendente lite and on final determination, to be paid by any party to the action, including, if deemed to be just, any party successful in the action, on any claim for divorce, nullity, support, alimony, custody, parenting time, equitable distribution, separate maintenance, enforcement of interspousal agreements relating to family type matters and claims relating to family type matters in actions between unmarried persons. A pendente lite allowance may include a fee based on an evaluation of prospective services likely to be performed and the respective financial circumstances of the parties. The court may also, on good cause shown, direct the parties to sell, mortgage, or otherwise encumber or pledge marital assets to the extent the court deems necessary to permit both parties to fund the litigation. In determining the amount of the fee award, the court should consider, in addition to the information required to be submitted pursuant to R. 4:42-9, the following factors: (1) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained: (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.
(d) Withdrawal from Representation.
(1) An attorney may withdraw from the representation prior to the fixing of the trial date or the Matrimonial Early Settlement Panel hearing, whichever is earlier, upon the client's consent and in accordance with R. 1:11-2(a)(1). If the client does not consent, the attorney may withdraw only on leave of court as provided in subparagraph (2) of this rule.
(2) After the fixing of the trial date or the Matrimonial Early Settlement Panel hearing, whichever is earlier, an attorney may withdraw from the action only by leave of court on motion on notice to all parties. The motion shall be supported by the attorney's affidavit or certification setting forth the reasons for the application and shall have annexed the written retainer agreement. In deciding the motion, the court shall consider, among other relevant factors, the terms of the written retainer agreement and whether either the attorney or the client has breached the terms of that agreement; the age of the action; the imminence of the Matrimonial Early Settlement Panel hearing date or the trial date, as appropriate; the complexity of the issues; the ability of the client timely to retain substituted counsel; the amount of fees already paid by the client to the attorney; the likelihood that the attorney will receive payment of any balance due under the retainer agreement if the matter is tried; the burden on the attorney if the withdrawal application is not granted; and the prejudice to the client or to any other party.
5:3-6. Continuous Trials
Insofar as practicable, civil family actions should be tried continuously to conclusion and, in the absence of exigent circumstances, shall be so tried in counties in which four or more judges are assigned to the Family Part on a full-time basis.
5:3-7. Additional Remedies on Violation of Orders Relating to Parenting Time, Alimony, or Support
(a) Custody or Parenting Time Orders. On finding that a party has violated an order respecting custody or parenting time, the court may order, in addition to the remedies provided by R. 1:10-3, any of the following remedies, either singly or in combination: (1) compensatory time with the children; (2) economic sanctions, including but not limited to the award of monetary compensation for the costs resulting from a parent's failure to appear for scheduled parenting time or visitation such as child care expenses incurred by the other parent; (3) modification of transportation arrangements; (4) pick-up and return of the children in a public place; (5) counseling for the children or parents or any of them at the expense of the parent in violation of the order; (6) temporary or permanent modification of the custodial arrangement provided such relief is in the best interest of the children; (7) participation by the parent in violation of the order in an approved community service program; (9) incarceration, with or without work release; (9) issuance of a warrant to be executed upon the further violation of the judgment or order; and (10) any other appropriate equitable remedy.
(b) Alimony or Child Support Orders. On finding that a party has violated an alimony or child support order the court may, in addition to remedies provided by R. 1:10-3, grant any of the following remedies, either singly or in combination: (1) fixing the amount of arrearages and entering a judgment upon which interest accrues; (2) requiring payment of arrearages on a periodic basis; (3) suspension of an occupational license or driver's license consistent with law; (4) economic sanctions; (5) participation by the party in violation of the order in an approved community service program; (6) incarceration, with or without work release; (7) issuance of a warrant to be executed upon the further violation of the judgment or order; and (8) any other appropriate equitable remedy.
RULE 5:4. PROCESS, PLEADINGS, APPEARANCES
(a) Summons Generally. Except as otherwise provided by these rules with respect to a specific family action and except as otherwise provided by paragraph (b) of this rule, the summons in all civil family actions shall be in the form prescribed by R. 4:4-2 and shall be served in accordance with R. 4:4.
(b) Summons, Summary Family Actions. In every family action required or permitted by law or rule to proceed summarily, a summons shall issue either in addition to or in lieu of an order to show cause. The summons shall comply with the requirements of R. 4:4-2 except that in lieu of requiring an answer it shall notify the defendant to appear at the time, date and place therein set forth to answer the complaint, a copy of which shall be annexed thereto. It shall also notify the defendant that unless the defendant appears at the date, time and place set forth an order may be entered by default and, if appropriate, that a warrant may issue to compel the defendant's appearance. The summons shall be served in accordance with R. 4:4.
(c) Warrant. In criminal and quasi-criminal actions, the provisions of R. 3:3 insofar as applicable shall apply. A warrant may also issue where provided by rule or otherwise appropriate to compel appearance.
(a) Complaint Generally
(1) Caption. All family actions shall be captioned in the Chancery Division-Family Part.
(2) Contents. Every complaint in a family part action, in addition to the special requirements prescribed by these rules for specific family actions shall also include a statement of the essential facts constituting the basis of the relief sought, the stature or statutes, if any, relied on by the plaintiff, the street address or, if none, the post office address of each party, or a statement that such address is not known; a statement of any previous family actions between the parties; and, if not otherwise stated, the facts upon which venue is based.
In any action involving the welfare or status of a child, the complaint shall include the child's name, address, the date of birth, and a statement of where and with whom the child resides.
In any non-dissolution action involving the support of a child in which paternity was previously acknowledged by the parents, a copy of the Certificate of Parentage or other written acknowledgment of paternity shall be filed with the complaint for support.
(1) Identification of Corespondent. In family actions in which adultery or deviant sexual conduct is charged, the pleading so charging shall state the name of the person with whom such conduct was committed, if known, and if not known, shall state any available information tending to describe the said person, and shall also state such designation of the time, place and circumstances under which the act or series of acts were committed as will enable the party charged therewith and the court to distinguish the particular offense or offenses intended to be charged. If it is stated that the name is unknown, it must be shown at the hearing that it was not known at the time of the filing of the pleading containing the charge.
(2) Notice to Corespondent. A person named as a corespondent in any pleading seeking or resisting relief on the ground of adultery or deviant sexual conduct shall, within 30 days after filing of such a pleading, be served by the party making the charge, either personally or by registered or certified mail to the corespondent's last-known address, return receipt requested, or, if the corespondent refuses to claim or to accept delivery, by ordinary mail, with a copy of such pleading and a written notice of the pendency of the action, of the charge, and of the right to intervene in accordance with R. 4:33. If the name and address of the corespondent are discovered thereafter and before the trial, the party making the charge shall give such notice forthwith. If the name and address of the corespondent appear at the trial, and such notice has not been given, an adjournment may be ordered and such notice given. An affidavit of compliance with the requirements of this rule shall be filed.
(c) Affidavit of Verification and Non-collusion. There shall be annexed to every complaint or counterclaim for divorce or nullity of marriage an oath or affirmation by the plaintiff or counter claimant that the allegations of the complaint or counterclaim are true to the best of the party's knowledge, information and belief, and that the pleading is made in truth and good faith and without collusion for the causes set forth therein.
(d) Counterclaim. A counterclaim may state any family cause of action, and any other cause or causes of action which exist at the time of service of the counterclaim. A counterclaim not stated in an answer may be filed by leave of the court at any time prior to final judgment. Failure to counterclaim for divorce or nullity of marriage shall not bar such cause of action. In any action involving the welfare or status of a child the counterclaim shall include the child's name, address, date of birth and a statement of where and with whom the child resides.
(e) Amended or Supplemental Complaint or Counterclaim. In any action for divorce, nullity of marriage, or separate maintenance, a supplemental complaint or counterclaim may be allowed to set forth a cause of action which has arisen or become known since the filing of the original complaint, and an amended complaint or counterclaim may be allowed to change the action from separate maintenance, absolute divorce or divorce from bed and board to any other one of said actions.
(f) Affidavit or Certification of Insurance Coverage. The first pleading of each party shall have annexed thereto an affidavit listing all known insurance coverage of the parties and their minor children, including but not limited to life, health, automobile, and homeowner's insurance. The affidavit shall specify the name of the insurance company, the policy number, the named insured and, if applicable, other persons covered by the policy; a description of the coverage including the policy term, if applicable; and in the case of life insurance, an identification of the named beneficiaries. The affidavit shall also specify whether any insurance coverage was canceled or modified within the ninety days preceding its date and, if so, a description of the canceled insurance coverage. Insurance coverage identified in the affidavit shall be maintained pending further order of the court. If, however, the only relief sought is dissolution of the marriage or if a property settlement agreement addressing insurance coverage has already been reached, the parties shall annex to their pleadings, in lieu of the required insurance affidavit, an affidavit so stating. Nevertheless, if a responding party seeks financial relief, the responding party shall annex an insurance-coverage affidavit to the responsive pleading and the adverse party shall serve and file an insurance-coverage affidavit within 20 days after service of the responsive pleading. A certification in lieu of affidavit may be filed.
5:4-3. Answer, Acknowledgment, Appearance
(a) Generally. Except as otherwise provided by paragraph (b) hereof or by any other rule or statute, a defendant in a family action shall file an answer in accordance with R. 4:5-3 or a general appearance and, without filing an answer, be heard on issues of custody of children, parenting time or visitation, alimony, child support, equitable distribution, counsel fees and other issues incidental to the proceeding. A defendant may also file an acknowledgment of service in accordance with R. 4:4-6.
(b) Summary Actions. In summary family actions in which the process fixes a return day, the defendant need not file an answer, appearance or acknowledgment in order to be heard if the defendant appears on the return day.
5:4-4. Service of Process in Paternity and Support Proceedings
(a) Manner of Service. Service of process within this State for paternity and support complaints shall be made in accordance with Rule 4:4-4 or paragraph (b) of this rule. Substituted or constructive service of process outside this State may be made pursuant to the applicable provisions in Rule 4:4-4 or Rule 4:4-5.
(b) Establishment of a Paternity or Support Order-Service by Mail Program. Service of process for initial paternity and support complaints may be effected as follows:
(1) Initial Service by Mail. The Family Part shall mail process simultaneously by both certified and ordinary mail to the mailing address of the defendant provided by the party filing the complaint.
(2) Effective Service. Consistent with due process of law, service by mail pursuant to this rule shall have the same effect as personal service, and the simultaneous mailing shall constitute effective service unless there is no proof that the certified mail was received, or either the certified or the regular mail is returned by the postal service marked "moved, unable to forward," "addressee not known," "no such number/street," "insufficient address," "forwarding order expired," or the court has other reason to believe that service was not effected. Process served by mail may be addressed to a post office box. Where process is addressed to the defendant at that person's place of business or employment, with postal instructions to deliver to addressee only, service will be deemed effective only if the signature on the return receipt appears to be that of the defendant to whom process was mailed.
(3) Ineffective Service. If service cannot be effected by mail, the court shall inactivate the complaint and attempt to verify the address by contacting plaintiff or the attorney filing the complaint or the postal service and thereafter shall attempt to re-serve defendant by mail. If service of process still cannot be effected by mail, the court shall order that defendant be served personally or as otherwise provided in Rule 4:4-4 or Rule 4:4-5.
(4) Vacating Defaults. If process is returned to the court by the postal service subsequent to entry of default and the certified mail receipt displays any of the notations listed in the paragraph (b)(2) of this Rule, or another reason exists to believe that service was not effected, the court shall vacate the order entered by default, immediately notify plaintiff or the attorney of the action taken, and reinstitute efforts to serve defendant either by mail or personally. A defendant may, at any time after an order has been entered by default based on mailed service, file a motion requesting that a paternity or support order be vacated or modified based on the fact that defendant was not served with process prior to entry of the order. A party alleging that process was not received must show that the address to which process was directed was not that person's address at the time that the order was entered. Upon such a showing, the court may conduct a hearing or order paternity testing to determine whether the order should be modified or vacated.
(c) Enforcement of a Support Order. For purposes of enforcing a support provision in an order or judgment, the court may deem due process requirements for notice and service of process to have been met with respect to the obligor on delivery of written notice to the most recent residential or employer address. If the obligor fails to respond to the notice and no proof is available that the obligor received the notice, the party bringing the enforcement action must show that diligent efforts have been made to locate the obligor by making inquiries to the U.S. Postal Service, the Division of Motor Vehicles, the Department of Labor, and the Department of Corrections. A certification documenting unsuccessful efforts to locate the obligor shall be provided to the court before any action adverse to the obligor is taken based on failure of the obligor to respond to a notice.
(d) General Appearance; Acknowledgment of Service. A general appearance or an acceptance of the service of a summons, signed by defendant's attorney, or signed and acknowledged by defendant or by a competent adult in defendant's household, or as otherwise provided in R. 4:4-4, shall have the same effect as if defendant had been properly served.
RULE 5:5. PRETRIAL PROCEDURES
Except for summary actions and except as otherwise provided by law or rule, discovery in civil family actions shall be permitted as follows:
(a) Interrogatories as to all issues in all family actions may be served by any party as of course pursuant to R. 4:17.
(b) An interrogatory requesting financial information may be answered by reference to the case information statement required by R. 5:5-2.
(c) Depositions of any person, excluding family members under the age of 18, and including parties or experts, as of course may be taken pursuant to R. 4:11 et seq. and R. 4:10-2(d)(2) as to all matters except those relating to the elements that constitute grounds for divorce.
(d) All other discovery in family actions shall be permitted only by leave of court for good cause shown except for production of documents (R. 4:18-1); request for admissions (R. 4:22-1); and copies of documents referred to in pleadings (R. 4:18-2) which shall be permitted as of right.
(e) Discovery shall be completed within 90 days from the date of service of the original complaint in actions assigned to the expedited track and within 120 days from said date in actions assigned to the standard track. In actions assigned to the priority or complex track, time for completion of discovery shall be prescribed by case management order.
5:5-2. Case Information Statement
(a) Applicability. The case information statement required by this rule shall be filed and served in all contested family actions, except summary actions, in which there is any issue as to custody, support, alimony or equitable distribution. In all other family actions, a case information statement may be required by order on motion of the court or a party.
(b) Time and Filing. Except as otherwise provided in R. 5:7-2, a case information statement or certification that no such statement is required under subparagraph (a) shall be filed by each party with the clerk in the county of venue within 20 days after the filing of an Answer or Appearance. The case information statement shall be filed in the form set forth in Appendix V of these rules. The court on either its own or a party's motion may, on notice to all parties, dismiss a party's pleadings for failure to have filed a Case Information Statement. If dismissed, said pleadings shall be subject to reinstatement upon such conditions as the court may deem just.
(c) Amendments. Parties are under a continuing duty to inform the court of any changes in the information supplied on the case information statement. All amendments to the statement shall be filed with the court no later than 20 days before the final hearing. The court may prohibit a party from introducing into evidence any information not disclosed or it may enter such other order as it deems appropriate.
(d) Income Tax Returns. Following the entry of a final judgment, the court shall order the return to the parties of any income tax returns filed with a case information statement under this rule.
(e) Default; Notice for Equitable Distribution, Alimony, Child Support and Other Relief. In those cases where equitable distribution, alimony, child support and other relief are sought and a default has been entered, the plaintiff shall file and serve upon the defaulting party, in accordance with R. 1:5-2, A Notice of Application for Equitable Distribution, Alimony, Child Support and Other Relief, not less than 20 days prior to the hearing date. The notice shall include the proposed trial date, a statement of the value of each asset and the amount of each debt sought to be distributed, a proposal for distribution and a statement whether plaintiff is seeking alimony and/or child support and, if so, in what amount and a statement as to all other relief sought. Plaintiff shall annex to the notice a completed and filed Case Information Statement in the form set forth in Appendix V of these Rules. Where a written property settlement agreement has been executed, plaintiff shall not be obligated to file such a notice. When the summons and complaint have been served on the defendant by substituted service pursuant to R. 4:4-4, a copy of the Notice of Application for Equitable Distribution, Alimony, Child Support and Other Relief Sought shall be filed and served upon the defendant in the same manner as the summons and complaint or in any other manner permitted by the court, at least twenty (20) days prior to the date set for hearing. The notice shall state that such notice can be examined by the defendant during normal business hours at the Family Division Manager's office in the county in which the notice was filed. The notice shall provide the address of the county courthouse where the notice has been filed.
5:5-3. Financial Statement in Summary Support Actions
In any summary action in which support of a child is in issue, each party shall, prior to the commencement of any hearing, serve upon the other party and furnish the court with an affidavit or certification in the form set forth in Appendix XIV of these Rules. The court shall use the information provided on the affidavit or certification and any other relevant facts to set an adequate level of child support in accordance with R. 5:6A. In summary actions to determine the support of spouse, each party shall, prior to the commencement of any hearing, provide the opposing party and the court with an affidavit or certification of income, assets, needs, expenses, liabilities, and other relevant facts to assist the court in determining the issue of support. Such affidavit or certification shall be preserved for appellate review but shall not be filed.
5:5-4. Motions in Family Actions
(a) Motions. Motions in family actions shall be governed by R. 1:6-2(b) except that, in exercising its discretion as to the mode and scheduling of disposition of motions, the court shall ordinarily grant requests for oral argument on substantive and non-routine discovery motions and ordinarily deny requests for oral argument on calendar and routine discovery motions. When a motion is brought for enforcement or modification of a prior order or judgment, a copy of the order or judgment sought to be enforced or modified shall be appended to the pleading filed in support of the motion. When a motion is brought for the modification of an order or judgment for alimony or child support, the pleading filed in support of the motion shall have appended to it a copy of the prior Case Information Statement or Statements filed before entry of the order or judgment sought to be modified and a copy of a current Case Information Statement.
(b) Page Limits. Unless the court otherwise permits for good cause shown and except for the certification required by R. 4:42-9(b) (affidavit of service), a certification in support of a motion shall not exceed fifteen pages. A certification in opposition to a motion or in support of a cross-motion or both shall not exceed twenty-five pages. A reply certification to opposing pleadings shall not exceed ten pages.
(c) Time for Service and Filing. A notice of motion, except for motions brought pursuant to R. 1:10-3 and motions involving the status of a child, filed more than 45 days after the entry of the written judgment of divorce or annulment, other than an ex parte motion, shall be served and filed, together with supporting affidavits and briefs, when necessary, not later than 29 days before the time specified for the return date. For example, a motion must be served and filed on the Thursday for a motion date falling on a Friday 29 days later. Any opposing affidavits, cross-motions or objections shall be served and filed not later than 15 days before the return date. For example, a response must be served and filed on a Thursday for a motion date falling on a Friday 15 days later. Answers or responses to any opposing affidavits and cross-motions shall be served and filed not later than 8 days before the return date. For example, such papers would have to be served and filed on a Thursday for a motion date falling on the Friday of the following week. If service is made by mail, 3 days shall be added to the above time periods.
(d) Advance Notice. Every motion shall include the following language: NOTICE TO LITIGANTS: IF YOU WANT TO RESPOND TO THIS MOTION YOU MUST DO SO IN WRITING. This written response shall be by affidavit or certification. (Affidavits and certifications are documents filed with the court. In either document the person signing it swears to its truth and acknowledges that they are aware that they can be punished for not filing a true statement with the court. Affidavits are notarized and certifications are not.) If you would also like to submit your own separate requests in a motion to the judge you can do so by filing a cross-motion. Your response and/or cross-motion may ask for oral argument. That means you can ask to appear before the court to explain your position. However, you must submit a written response even if you request oral argument. Any papers you send to the court must be sent to the opposing side, either to the attorney if the opposing party is represented by one, or to the other party if they represent themselves.
The response and/or cross-motion must be submitted to the court by a certain date. All pre-divorce motions, all enforcement motions (also known as motions for enforcement of litigants' rights, R. 1:10-3), or motions that deal with the status of children must be filed 16 days before the return date. (Since most motion days are on a Friday, motion papers must be filed on the Wednesday 16 days before.) Therefore, a response and/or cross motion must be filed eight days (Thursday) before the return date. All post-judgment motions, including all motions for modification of alimony, child support, custody, or parenting time/visitation must be filed 29 days (Thursday) before the (Friday) return date. Therefore, a response and/or cross-motion must be filed 15 days (Thursday) before the return date. If you mail in your papers you must add three days to the above time periods.
Response to motion papers sent to the court are to be sent to the following address: ______________. Call the Family Division Manager's office (_______) if you have any questions on how to file a motion, cross-motion or any response papers. Please note that the Family Division Manager's office cannot give you legal advice.
(e) Tentative Decisions. In any Family Part motion scheduled for oral argument pursuant to this rule, the motion judge prior to the motion date may tentatively decide the matter on the basis of the motion papers, posting the tentative decision and making it available to the parties. After such tentative decision has been made, unless either party renews the request for oral argument, that request shall be deemed withdrawn and the tentative decision shall become final and shall be set forth in an appropriate order. If, however, either party renews the request for oral argument, the motion shall be argued as scheduled. This tentative motion decision process shall be subject to the general supervision of the Family Presiding Judge of the vicinage.
(f) Orders on Family Part Motions. Absent good cause to the contrary, a written order shall be entered at the conclusion of each motion hearing.
5:5-5. Participation in Early Settlement Programs
All vicinages shall establish an Early Settlement Program, in conjunction with the County Bar Associations, and the Presiding Judges, or designee, shall refer appropriate cases, including post-judgment applications, to the program based upon review of the pleadings and case information statements filed by the parties. Parties to cases which have been so referred shall participate in the program as scheduled. The failure of a party to participate in the program or to provide a case information statement or such other required information may result in the assessment of counsel fees and/or dismissal of the non-cooperating party's pleadings.
5:5-6. Case Management Conferences
(a) Priority and Complex Actions. In civil family actions assigned to the priority or complex track, an initial case management conference, which may be by telephone, shall be held within 30 days after the expiration of the time for the last permissible responsive pleading or as soon thereafter as is practicable considering, among other factors, the number of parties, if any, added or impleaded. Following the conference, the court shall enter an initial case management order fixing a schedule for initial discovery; requiring other parties to be joined, if necessary; narrowing the issues in dispute, if possible; and scheduling a second case management conference to be held after the close of the initial discovery period. The second case management order shall, among its other determinations, fix a firm trial date.
(b) Standard and Expedited Cases. In civil family actions assigned to the standard or expedited track, a case management conference, which may be by telephone, shall be held within 30 days after the expiration of the time for the last permissible responsive pleading. The attorneys actually responsible for the prosecution and defense of the case shall participate in the case management conference and the parties shall be available in person or by telephone. Following the conference, the court shall enter a case management order fixing a discovery schedule and a firm trial date. Additional case management conferences may be held in the court's discretion and for good cause shown on its motion or a party's request.
5:5-7. Previous File or Record
(a) Previous Action Within State. In every family action where it appears by a pleading that there has been a previous family action in this State between the parties, any party or the court shall request the clerk of the court in which it was instituted to send to the clerk of the county in which the pending action is to be tried the complete file in the previous action or a certified copy thereof. At the conclusion of the action such file shall be returned.
(b) Previous Action Outside State. If it appears that the previous action was in a foreign jurisdiction, the party whose pleading refers thereto, or the moving party if the action is uncontested, shall produce at trial so much of the record in said action as is necessary to enable the court to determine the effect, if any, of the previous action upon the issue before it.
RULE 5:6. SUMMARY ACTION FOR SUPPORT
5:6-1. When and by Whom Filed
Except for UIFSA proceedings pursuant to N.J.S.A. 2A:4-30.65 through 2A:4-30.123, a summary action for support may be brought by either the party entitled thereto or an assistance agency provided no other family action is pending in which the issue of support has been or could be raised.
5:6-2. Matters Brought by Assistance Agencies
In a proceeding for support brought by an assistance agency, any support that may be directed to be paid shall comply with R. 5:6A. If sufficient financial information is not available for either party, the court shall, insofar as practicable, make the support award in consideration of the amount of assistance received by the obligee.
The court shall hear and determine the matter in a summary manner on the return day fixed in the process unless it is adjourned by or with the consent of the court. If the plaintiff does not attend the hearing, the court may dismiss the complaint, adjourn the matter to a future date and re notify the parties or take other appropriate action. On its own or a party's motion on good cause shown the court may order that the matter proceed in a plenary manner as it shall direct.
5:6-4. Interstate Support
Matters originating under N.J.S.A. 2A:4-30.65 through 2A:4-30.123 inclusive (Uniform Interstate Family Support Act), shall be scheduled in the same manner as other Family cases and shall be heard expeditiously.
5:6-5. Enforcement of Orders
Support orders may be enforced and contempts proceeded upon in accordance with R. 1:10 and the applicable provisions of R. 5:7-5 and R. 5:7-6.
5:6-6. Modification of Title IV-D Child Support Orders
The Probation Division may present to the court any appropriate case being enforced under Title IV, Part D of the Social Security Act (42 U.S.C. §§ 601 to 669) for adjustment of the child support award or the addition of a health insurance provision in accordance with N.J.S.A. 2A:17-56.9a. The court shall consider such cases and may modify orders in accordance with the child support guidelines or other relevant factors. If the proposed modification is contested, the moving party or that person's attorney shall be responsible for preparing and filing all motions and supporting documentation required under these Rules. The moving party shall be responsible for paying all applicable filing fees. If the moving party states under oath in the application that he or she is indigent and unable to pay the required filing fees, the court, if satisfied of the fact of indigency, may waive the payment of such fees in accordance with Rule 1:13-2.
RULE 5:6A. CHILD SUPPORT GUIDELINES
The guidelines set forth in Appendix IX of these Rules shall be applied when an application to establish or modify child support is considered by the court. The guidelines may be modified or disregarded by the court only where good cause is shown. Good cause shall consist of a) the considerations set forth in Appendix IX-A, or the presence of other relevant factors which may make the guidelines inapplicable or subject to modification, and b) the fact that an injustice would result from the application of the guidelines. In all cases, the determination of good cause shall be within the sound discretion of the court.
A completed child support guidelines worksheet in the form prescribed in Appendix IX of these Rules shall be filed with any order or judgment that includes child support that is submitted for the approval of the court. If a proposed child support award differs from the award calculated under the child support guidelines, the worksheet shall state the reason for the deviation and the amount of the award calculated under the child support guidelines.
RULE 5:6B. COST-OF-LIVING ADJUSTMENTS FOR CHILD SUPPORT ORDERS
All orders and judgments that include child support entered, modified, or enforced after the effective date of this rule shall provide that the child support amount will be adjusted every two years to reflect the cost of living. The cost-of-living adjustment shall be based on the average change in the Consumer Price Index for the metropolitan statistical areas that encompass New Jersey and shall be compounded. Before a cost-of-living adjustment is applied, the parties shall be provided with notice of the proposed adjustment and an opportunity to contest the adjustment within 30 days of the mailing of the notice. An obligor may contest the adjustment if the obligor's income has not increased at a rate at least equal to the rate of inflation as measured by the Consumer Price Index or if the order or judgment provides for an alternative periodic cost-of-living adjustment. Either party may contest the cost-of-living adjustment based on changed circumstances and may request that the Appendix IX child support guidelines be applied to adjust the amount of child support to be paid. The application of the child support guidelines shall take precedence over cost-of-living adjustments. A cost-of-living adjustment shall not impair the right of either parent to apply to the court for a modification of support provisions of the order or judgment based on changed circumstances. The forms and procedures to implement cost-of-living adjustments shall be prescribed by the Administrative Director of the Courts.
RULE 5:7. DIVORCE, NULLITY, SEPARATE MAINTENANCE
Except as otherwise provided by law, venue in actions for divorce, nullity and separate maintenance shall be laid in the county in which plaintiff was domiciled when the cause of action arose, or if plaintiff was not then domiciled in this State, then in the county in which defendant was domiciled when the cause of action arose; or if neither party was domiciled in this State when the cause of action arose, then in the county in which the plaintiff is domiciled when the action is commenced, or if plaintiff is not domiciled in this State, then in the county where defendant is domiciled when service of process is made. For purposes of this rule, in actions brought under N.J.S.A. 2A:34-2(c), the cause of action shall be deemed to have arisen three months after the last act of cruelty complained of in the Complaint.
5:7-2. Application Pendente Lite
(a) Support Pendente Lite. Applications for support, counsel fees and costs pendente lite, whether made with the complaint or by notice of motion thereafter, shall be accompanied by a completed case information statement in the form set forth in Appendix V to these rules pursuant to R. 5:5-2. If this form has previously been submitted, amendments thereto must be filed with the court no later than eight days prior to the motion hearing date. A completed case information statement shall accompany the response to the application pendente lite. If previously submitted, amendments thereto must be filed with the court no later than eight days prior to the hearing date.
(b) Restraints; Contempt. If pendente lite relief is sought, by way of preliminary restraint or to hold a party in contempt, the application shall be on petition and order to show cause.
All elements of a claim for divorce or nullity may be proved without corroboration.
5:7-4. Alimony and Child Support Payments
(a) Allocation of Support. In awarding alimony, maintenance or child support, the court shall separate the amounts awarded for alimony or maintenance and the amounts awarded for child support, unless for good cause shown the court determines that the amounts should be unallocated. In awarding child support, payments for health care, child care and other expenses necessary to maintain the child or children shall be designated as part of the child support award unless good cause is shown why such amounts should be separated.
(b) Payments Through the Probation Division. The judgment or order shall provide that payments be made to the New Jersey Family Support Payment Center. When an obligor's county of residence changes, the transfer of the responsibility for the collection and enforcement of such judgment or order shall be governed by the policies established by the Administrative Director of the Courts. Alimony, maintenance or child support payments not presently made through the Probation Division shall be so made upon application of either party to the Probation Division unless the other party, upon application to the court, shows good cause to the contrary. In non-dissolution support proceedings, the court shall record its decision using the Uniform Order for Summary Support shown in Appendix XVI of these Rules. Upon the signing of any order that includes support or health insurance provisions to be administered by the Probation Division, the court shall, immediately after the hearing, send to the appropriate Probation Division one copy of the order which shall include statements prepared by the parties or their attorneys providing the names, dates of birth, Social Security Numbers, and mailing addresses of the parents and the children; the occupation and driver's license number of the parent who is ordered to pay support; the policy number and name of the health insurance provider of the parent who is ordered to insure the children; and, if income withholding is ordered, the name and address of the obligor's employer. When a party or attorney must prepare a formal written judgment or order pursuant to a judicial decision that includes support or health insurance provisions to be administered by the Probation Division, the court shall, on the date of the hearing, record the support and health insurance provisions on a Temporary Support Order using the form prescribed in Appendix XVII of these Rules and shall immediately have such order delivered to the Probation Division so that a support account can be established on the Automated Child Support Enforcement System (ACSES). The Probation Division shall establish a support account on ACSES within eight business days of the date the court order was signed. Demographic information provided on the Temporary Support Order shall be limited to that which is required to establish an ACSES account and send case initiation documents to the parties and the obligor's employer. In addition to the information provided to the court with the final order or judgment as required by this paragraph, the parties and their attorneys shall provide additional family and benefit information at the request of the Probation Division. The Temporary Support Order shall remain in effect until a copy of the final judgment or order is received by the Probation Division. After a judgment or order is entered and the Probation Division has established an ACSES support account, the obligor shall notify the appropriate Probation Division of any change of employer, health insurance provider or address and the obligee shall notify the Probation Division of a change of address or a change in the status of the children as may be required in the order or judgment within 10 days of the change, and any judgment or order that includes alimony or support shall so provide. Failure to provide information as to change of employer, health insurance provider or address shall be considered a violation of the order. Judgments or orders amending the amounts to be paid through the Probation Division shall be treated in the same manner.
(c) Income Withholding. All complaints, notices, pleadings, orders and judgments which include child support filed or entered on or after October 1, 1990 shall comply with the income withholding provisions of Rule 5:7-5.
(d) Notices Applicable to All Orders and Judgments That Include Child Support Provisions. The judgment or order shall include notices stating: (1) that, if support is not paid through immediate income withholding, the child support provisions of an order or judgment are subject to income withholding when a child support arrearage has accrued in an amount equal to or in excess of the amount of support payable for 14 days. The withholding is effective against the obligor's current and future income from all sources authorized by law; (2) that any payment or installment of an order for child support or those portions of an order which are allocated for child support shall be fully enforceable and entitled to full faith and credit and shall be a judgment by operation of law on or after the date it is due; (3) that no payment or installment of an order for child support or those portions of an order that are allocated for child support shall be retroactively modified by the court except for the period during which the party seeking relief has pending an application for modification as provided in N.J.S.A. 2A:17-56.23a; (4) that the occupational, recreational, and professional licenses, including a license to practice law, held or applied for by the obligor may be denied, suspended or revoked if: 1) a child support arrearage accumulates that is equal to or exceeds the amount of child support payable for six months, or 2) the obligor fails to provide health care coverage for the child as ordered by the court within six months, or 3) a warrant for the obligor's arrest has been issued by the court for obligor's failure to pay child support as ordered, or for obligor's failure to appear at a hearing to establish paternity or child support, or for obligor's failure to appear at a child support hearing to enforce a child support order and said warrant remains outstanding; (5) that the driver's license held or applied for by the obligor may be denied, suspended, or revoked if 1) a child support arrearage accumulates that is equal to or exceeds the amount of child support payable for six months, or 2) the obligor fails to provide health care coverage for the child as ordered by the court within six months; and (6) that the driver's license held or applied for by the obligor shall be denied, suspended, or revoked if the court issues a warrant for the obligor's arrest for failure to pay child support as ordered, or for failure to appear at a hearing to establish paternity or child support, or for failure to appear at a child support hearing to enforce a child support order and said warrant remains outstanding..
(e) Additional Notices for Orders and Judgments Payable Through the Probation Division. Orders and judgments payable through the Probation Division shall include notices, in addition to those listed in paragraph (d), stating: (1) that the amount of child support and/or the addition of a health care coverage provision in Title IV-D cases shall be subject to review, at least once every three years, on written request by either party to the Division of Family Development, P.O. Box 716, Trenton, NJ 08625-0716 and adjusted by the court, as appropriate, or upon application to the court; (2) that the parties are required to notify the appropriate Probation Division of any change of employer, address or health care coverage provider within 10 days of the change and that failure to provide such information shall be considered a violation of the order; (3) that, in accordance with N.J.S.A. 2A:34-23b, the custodial parent may require the non-custodial parent's health care coverage provider to make payments directly to the health care provider by submitting a copy of the relevant sections of the order to the insurer; and (4) that Social Security numbers are collected and used in accordance with section 205 of the Social Security Act (42 U.S.C. 405), that disclosure of an individual's Social Security number for Title IV-D purposes is mandatory, that Social Security numbers are used to obtain income, employment and benefit information on individuals through computer matching programs with federal and state agencies, and that such information is used to establish and enforce child support under Title IV-D of the Social Security Act (42 U.S.C. 651 et seq.).
5:7-5. Failure to Pay; Enforcement by the Court or Party; Income Withholding for Child Support; Suspension and Revocation of Licenses for Failure to Support Dependents; Execution of Assets for Child Support; Child Support Judgments and Post-judgment Interest
(a) Contempt and Relief in Aid of Litigant's Rights. If a person fails to make payments or provide health insurance coverage as directed by an order or judgment, the Probation Division responsible for monitoring and enforcing compliance shall notify such person by mail that such failure may result in the institution of contempt proceedings. Upon the accumulation of a support arrearage equal to or in excess of the amount of support payable for 14 days or failure to provide health insurance coverage as ordered, the Probation Division shall file a verified statement setting forth the facts establishing disobedience of the order or judgment. The court in the county in which the person against whom the award is made resides, unless another court is designated by order or Rule 5:7-6(a) otherwise provides, may then, in its discretion, institute contempt proceedings in accordance with Rule 1:10-2, and an aggrieved party, or the Probation Division on that person's behalf, may apply to the court for relief in accordance with Rule 1:10-3. If the aggrieved party states under oath in the application that he or she is indigent and unable to pay the required filing fees, the court, if satisfied of the fact of indigency, may waive the payment of such fees. If the application for relief is made on behalf of a party by the Probation Division, filing fees shall be waived, and may, in the discretion of the court, subsequently be assessed against the adverse party if it is determined that he or she has not complied with the order or judgment being enforced. For past-due alimony or child support payments that have not been docketed as a civil money judgment with the Clerk of the Superior Court, the court may, on its own motion or on motion by the party bringing the enforcement action, assess a late interest charge against the adverse party at the rate prescribed by Rule 4:42-11(a). For past-due child support payments that have been docketed as a civil money judgment, see paragraph g of this Rule.
(b) Immediate Income Withholding. All orders that include child support shall be paid through immediate income withholding from the obligor's current and future income unless the parties agree, in writing, to an alternative arrangement or either party shows, and the court finds, good cause for an alternative arrangement. If included in the same order as child support, the court may, in its discretion, garnish a separate amount for alimony, maintenance or spousal support in accordance with N.J.S.A. 2A:17-50 et seq. and include such amount in the immediate income withholding order.
(1) Application. Immediate income withholding applies to all orders which include child support that are established or modified on or after October 1, 1990.
(2) Procedure. If an order or judgment contains a child support provision, the child support shall be paid through immediate income withholding, and the withholding may include amounts for alimony, maintenance or spousal support, unless the parties agree, in writing, to an alternative arrangement or either party shows and the court finds good cause for an alternative arrangement. The court shall forward the order to the Probation Division which shall prepare and send a Notice to Payor of Income Withholding to the obligor's employer or other source of income.
(3) Advance Notice. Every complaint, notice or pleading for the entry or modification of a child support order shall include the following written notice: In accordance with N.J.S.A. 2A:17-56.7 et seq., the child support provisions of a court order are subject to income withholding on the effective date of the order unless the parties agree, in writing, to an alternative arrangement or either party shows and the court finds good cause to establish an alternative arrangement. The income withholding is effective upon all types of income including wages from current and future employment.
(c) Initiated Income Withholding. When any child support order that is not subject to immediate income withholding in accordance with paragraph (b) has an accumulated arrearage equal to or exceeding the amount of support payable for 14 days, the Probation Division supervising the support order shall initiate an income withholding against the obligor's current and future income that is subject to income withholding.
(1) Application. Initiated income withholding applies to all orders which include child support (a) that are entered prior to October 1, 1990, (b) that are entered or modified after October 1, 1990 which do not include a provision for immediate income withholding or (c) in which the parties have agreed, in writing, to an alternative arrangement and an arrearage equal to or in excess of the amount of support payable for 14 days exists. Initiated income withholding does not apply to alimony, maintenance or spousal support provisions.
(2) Procedure. When any order that includes child support is in default in an amount equal to or in excess of the amount of support payable for 14 days, the Probation Division of the County responsible for monitoring and enforcing compliance with the order or judgment shall initiate an income withholding against any of the obligor's income that is subject to income withholding. The Probation Division shall send, by regular mail, a Notice to Obligor of Income Withholding to the obligor's last known address. This notice shall be postmarked no later than 10 days after the date on which the case was identified as having the requisite 14-day arrearage and shall be mailed at the same time as the notice to the payor. The notice shall inform the obligor of the amounts withheld for current support and for the liquidation of arrearages and state that the withholding has commenced. An obligor may contest the withholding only on the basis of mistake of fact. If an obligor objects to the withholding, the Probation Division shall schedule a hearing or administrative review within 20 days after receiving notice of the contest of the withholding. Payment of arrearages after the due date shall not constitute good cause to terminate the withholding. No later than five days after the hearing or administrative review, the Probation Division shall notify the obligor, in writing, whether the withholding shall continue.
(3) Advance Notice. All orders that include child support and that are not subject to immediate income withholding as described in paragraph (b) shall include a notice to the obligor stating that: The child support provisions of a support order are subject to income withholding when a child support arrearage has accrued in an amount equal to or in excess of the amount of support payable for 14 days. The withholding is effective against the obligor's current and future income from all sources authorized by law.
(d) Rules Applicable to All Withholdings. The income withholding shall be binding on the obligor's employer or other source of income and successive payors of the obligor's income immediately after service of the Notice to Payor of Income Withholding upon the payor of such income. An employer or other source of income is not required to alter normal pay cycles to comply with the withholding but shall withhold and forward the required amount beginning with the first pay period that ends immediately after the notice is postmarked and each time the obligor is paid thereafter. The Notice to Payor of Income Withholding shall state that the payor of the obligor's income, except for the Division of Unemployment and Temporary Disability, may deduct a fee of $1.00 for each payment. Such fee shall be deducted from the obligor's income in addition to the amount withheld for child support. The total amount of the withholding shall not exceed the maximum amount permitted under section 303(b) of the federal Consumer Credit Protection Act (15 U.S.C. 1673(b)). If the court modifies any support order based upon changed circumstances, the Probation Division shall notify the payor to change the income withholding accordingly. When the Probation Division is unable to locate the obligor's current employer or other source of income to effectuate an income withholding, it may use any other procedures authorized by law to obtain this information. An income withholding for child support shall have priority over all other legal processes under State law without regard to the date of entry. If the obligor has more than one support order subject to withholding, the employer or other source of income shall withhold the payments on a pro-rata basis. The income withholding shall remain in effect until such time as the court enters an order to the contrary and the Probation Division delivers a Notice of Termination of Income Withholding to the employer or other source of income. An employer may not use an income withholding as a basis for discharge, discipline or discrimination in hiring. An aggrieved obligor may institute court action against the employer or other source of income as set forth in N.J.S.A. 2A:17-56.12. If the obligor's source of income fails to comply with a Notice to Payor of Income Withholding, it is liable for amounts that should have been withheld. The employer or other source of income shall notify the Probation Division promptly upon termination of the obligor's employment. If an employer or other source of income fails to comply with the terms of the income withholding or any withholding provision in this paragraph, the court may, upon application of the Probation Division, issue an Order to Show Cause for Contempt against the payor and proceed with contempt proceedings under Rule 1:10-3. The forms and notices required herein shall be prescribed by the Administrative Director of the Courts.
(e) Suspension and Revocation of Licenses for Failure to Support Dependents.
(1) General Provisions. If a child support arrearage equals or exceeds the amount of child support payable for six months, or court-ordered health care coverage for a child is not provided within six months of the date that it is ordered, or the obligor fails to respond to a subpoena relating to a paternity or child support action, or a warrant for the obligor's arrest has been issued by the court due to the failure to pay child support as ordered, failure to appear at a hearing to establish paternity or child support, or failure to appear at a child support hearing to enforce a child support order, and said warrant remains outstanding, and the obligor is found to possess a license in the State of New Jersey, including a license to practice law, and attempts to enforce the support provisions through income withholding, withholding of civil lawsuit awards, and the execution of assets, when available, have been exhausted, the Probation Division shall send a written notice to the obligor, by certified and regular mail, return receipt requested, at the obligor's last-known address or place of business or employment, stating that the obligor's licenses may be revoked or suspended unless, within 30 days of the postmark date of the notice, the obligor pays the full amount of past-due child support, or provides proof that health care coverage for the child has been obtained, or responds to a subpoena, or makes a written request for a court hearing to the Probation Division. If a child support-related warrant exists, the license revocation or suspension will be terminated if the obligor pays the full amount of the child support arrearage, provides proof that health care coverage for the child has been obtained, or surrenders to the county sheriff or the Probation Division. No license revocation action shall be initiated if the Probation Division has received notice that the obligor has pending a motion to modify the child support order if that motion was filed prior to the date that the notice of the license suspension or revocation was sent by the Probation Division. If the court issues a warrant for the obligor's arrest for failure to pay child support as ordered, or for failure to appear at a hearing to establish paternity or child support, or for failure to appear at a child support hearing to enforce a child support order, and said warrant remains outstanding, the Probation Division shall immediately notify the Division of Motor Vehicles of the warrant and the requirement to suspend the obligor's driving privileges pursuant to N.J.S.A. 2A:17-56.41.
(2) Suspension by Default of the Obligor. If, after receiving notice of a proposed license suspension or revocation, the obligor fails to take one of the actions specified in paragraph (e)(1) of this Rule, the Probation Division shall provide the court with a certification setting forth the obligor's non-compliance and failure to respond to the written notice of the pending license revocation or suspension as well as proof of service of the written notice of license suspension or denial. If, based on the papers filed by the Probation Division, the court is satisfied that service on the obligor was effective as set forth below, it shall, without need for further due process or hearing, enter an order suspending or revoking all licenses held by the obligor except that if the obligor is an attorney licensed to practice law in New Jersey, the order shall notify the Supreme Court to suspend the obligor's license to practice law.
(3) Service of the Notice of Proposed License Suspension or Revocation. For the purpose of license suspensions or revocations initiated in accordance with this paragraph, simultaneous certified and regular mailing of the written notice shall constitute effective service. The court may deem procedural due process requirements for notice and service of process to be met with respect to a party thereto upon delivery of written notice to the most recent residential or employer address filed with the Probation Division for that party. If a party fails to respond to a notice and no proof is available that the party received the notice, the Probation Division shall document to the court that it has made a diligent effort to locate the party by making inquiries that may include, but are not limited to: the United States Postal Service, the Division of Motor Vehicles in the Department of Transportation, the Division of Taxation in the Department of the Treasury, the Department of Corrections, and the Department of Labor. The Probation Division shall provide an affidavit to the court presenting such documentation of its diligent effort, which certifies its inability to locate the party. If the United States Postal Service returns the mail to the Probation Division within the 30-day response period marked "moved, unable to forward," "addressee not known," "no such number/street," "insufficient address," or "forwarding order expired," the court may deem procedural due process requirements for notice and service of process to be met upon a finding that the Probation Division has provided the affidavit documenting the diligent effort to locate the party. If the certified mail is returned for any other reason without the return of the regular mail, the regular mail service shall constitute effective service. If the mail is addressed to the obligor at the obligor's place of business or employment, with postal instructions to deliver to the addressee only, service will be deemed effective only if the signature on the return receipt appears to be that of the obligor. Acceptance of certified mail notice signed by the obligor, the obligor's attorney, or a competent member of the obligor's household above the age of 14 shall be deemed effective service.
(4) License Suspension or Revocation Hearings. If the obligor requests a hearing, the Probation Division shall file a petition for a court hearing, which shall occur within 45 days of the obligor's request. If, at or prior to the hearing, the obligor pays the full amount of the child support arrearage or provides proof that health care coverage for the child has been obtained or responds to the subpoena or surrenders to the county sheriff or the Probation Division, the license revocation process shall be terminated. The court shall suspend or revoke the obligor's licenses (if the obligor is an attorney licensed to practice law in New Jersey, the order shall notify the Supreme Court to suspend the obligor's license to practice law) if it finds that: (a) all appropriate enforcement methods have been exhausted, (b) the obligor is the holder of a license, (c) the requisite child support arrearage amount exists or health care coverage for the child has not been provided as ordered, (d) no motion to modify the child support order, filed prior to the date that the notice of the license suspension or revocation was sent by the Probation Division, is pending before the court, and (e) there is no equitable reason, such as involuntary unemployment, disability, or compliance with a court-ordered plan for the periodic payment of the child support arrearage amount, for the obligor's non-compliance with the child support order. If the court is satisfied that these conditions exist, it shall first consider suspending or revoking the obligor's driver's license prior to a professional or occupational license. If the obligor fails to appear at the hearing after being properly served with notice, the court shall order the suspension or revocation of all licenses held by the obligor except that if the obligor is an attorney licensed to practice law in New Jersey, the order shall notify the Supreme Court to suspend the obligor's license to practice law. In the case of a driver's license, if the court finds that the license revocation or suspension will result in a significant hardship to the obligor, to the obligor's legal dependents under 18 years of age living in the obligor's household, to the obligor's employees, or to persons, businesses, or entities to whom the obligor provides goods or services, the court may allow the obligor to pay 25% of the past-due child support amount within three working days of the hearing, establish a payment schedule to satisfy the remainder of the arrearages within one year, and require that the obligor comply with any current child support obligation. If the obligor agrees to this arrangement, no suspension or revocation of any licenses shall be ordered. Compliance with the payment agreement shall be monitored by the Probation Division. If the obligor has good cause for not complying with the payment agreement within the time permitted, the obligor shall immediately file a motion with the court and the Probation Division requesting an extension of the payment plan. The court may extend the payment plan if it is satisfied that the obligor has made a good faith effort to comply with the plan and is unable to satisfy the full amount of past-due support within the time permitted due to circumstances beyond the obligor's control. In no case shall a payment plan extend beyond the date that the dependent child reaches the age of 18. If the obligor fails to comply with the court-ordered payment schedule, the court shall, upon receipt of a certification of non-compliance from the Probation Division, and without further hearing, order the immediate revocation or suspension of all licenses held by the obligor. If the obligor is an attorney licensed to practice law in New Jersey, the order shall notify the Supreme Court to suspend the obligor's license to practice law. If required by existing law or regulation, the court shall order that the obligor surrender the license to the issuing authority within 30 days of the date of the order.
(5) Transmittal of Order Suspending or Revoking License. If the court issues an order suspending or revoking a license pursuant to paragraph (e) of this Rule, the Probation Division shall forward a copy of the order to the obligor and all appropriate licensing authorities. If the order notifies the Supreme Court to suspend a license to practice law in New Jersey, the Probation Division shall forward the order to the Clerk of the Supreme Court and a copy to the Director of the Office of Attorney Ethics. The suspension of a license to practice law in the State of New Jersey pursuant to paragraph (e) of this Rule, shall be governed by R. 1:20-11A.
(6) Relief From Suspension or Revocation Due to Mistaken Identity. If the licensee, upon receipt of the notice of suspension or revocation from the licensing authority, disputes that he or she is the obligor, the licensee shall notify the licensing authority and the Probation Division by registered mail within 20 days of the postmark date of the notice and request a hearing. Upon receipt of the licensee's request for a hearing, the Probation Division shall determine if the licensee is the obligor. If the Probation Division determines that the licensee is not the obligor, the Probation Division shall so notify the licensee and the licensing authority. If the Probation Division determines that the licensee is the obligor and the licensee still disputes this finding, the Probation Division shall file a petition for a court hearing to resolve the issue. The hearing shall be held within 30 days of the date that the Probation Division determines that a hearing is required. If a hearing is held to determine if the licensee is the obligor, the Probation Division shall notify the licensing authority of the court's finding.
(7) Term of Suspension/Restoration of License. A license suspension or revocation ordered by the court remains in effect until the obligor files with the licensing authority either a court order restoring the license or a Probation Division certification attesting to the full satisfaction of the child support arrearage. Within three working days of the full payment of the child support arrearage, the Probation Division shall provide the court with a certification stating that the obligor has satisfied the past-due child support amount. Upon receipt of the certification, the court shall issue an order restoring the obligor's licenses. The Probation Division shall immediately forward the restoration order or certification to the obligor. The obligor is responsible for filing the court order or Probation certification with the licensing authority. If a license to practice law in New Jersey was suspended by the Supreme Court pursuant to R. 1:20-11A, the attorney shall forward the Chancery Division, Family Part order that recommends the restoration of the license to the Clerk of the Supreme Court and a copy of the order to the Director of the Office of Attorney Ethics. The reinstatement of a license to practice law in New Jersey shall be governed by R. 1:20-11A. When the court issues an order to vacate a child support-related warrant or local law enforcement authorities execute the warrant, the Probation Division shall send a certification or the court's order to the obligor and to the Division of Motor Vehicles indicating that the child support-related warrant is no longer effective. The Division of Motor Vehicles, upon receipt of the order or certification, may reinstate the obligor's driving privileges, provided that the obligor pays the Division's restoration fee.
(f) Execution on Assets to Collect Alimony and Child Support. If an order is issued pursuant to R. 4:59-1(b) authorizing the Probation Division to execute on cash or cash-equivalent assets as defined therein to collect alimony and child support judgments payable through the Probation Division, the Probation Division may assist judgment creditors by preparing the writ of execution, serving the writ on the holder of the debtor's asset by registered or certified mail, and scheduling the matter before the court to obtain an order to turn over funds. Service of the writ shall freeze the asset for the amount of the judgment, but no turnover of funds shall be made or required to be made until ordered by the court. The writ of execution shall be signed by the judgment creditor or the attorney for the judgment creditor and may, subject to the limitations of this rule, be issued by the Vicinage Chief Probation Officer acting as deputy clerk of the Superior Court pursuant to R. 4:59-1(b). The Probation Division shall mail a notice to the debtor as required by R. 4:59-1(g) immediately after the writ has been served on the holder of the asset. The Probation Division shall send a copy of all writs of execution issued pursuant to R. 4:59-1(b) to the Family Division Case Management Office. No costs or fees shall be assessed by the Probation Division for aiding in the execution of a judgment for alimony or child support. With respect to assets other than cash or cash-equivalents as defined in R. 4:59-1(b), the Probation Division may assist the judgment creditor in preparing the writ of execution and such other forms relating to the execution as may be required, and in referring the judgment creditor to the sheriff of the county where the asset is located.
(g) Child Support Judgments and Post-judgment Interest. In accordance with N.J.S.A. 2A:17-56.23a, past-due child support payments are a judgment by operation of law on or after the date due and are subject to post-judgment interest at the rates prescribed in Rule 4:42-11 at the time of satisfaction or execution. Past-due child support payable through the Probation Division shall be automatically docketed as civil judgments with the Clerk of the Superior Court on the first day of the month following the date the payment was due. The Probation Division may, with the authorization of a child support judgment creditor, assist that party in calculating post-judgment interest in accordance with Rule 4:42-11 at the time an offer of satisfaction is tendered or an execution of assets is initiated. For child support that is not payable through the Probation Division, the obligee shall file a motion with the court asking that the amount of past-due child support be fixed and that a judgment be entered for that amount. The obligee shall be responsible for filing the judgment with the Clerk of the Superior Court. Alternatively, the obligee may procure a judgment by filing an application with the Probation Division requesting that past-due and future child support payments be made through that office in accordance with Rule 5:7-4(b).
5:7-6. Consolidated Enforcement and Modification Proceedings
(a) Where an order or judgment requires payment of support or alimony through a probation office in a county other than the county of venue and where motions are pending both for modification and enforcement of the order or judgment, all such motions shall be heard in the county of venue. Prior to such hearing, the amount of arrearages shall be fixed in the county where payments are required to be made either by certification of the probation office or, if its certification is contested, by the court in that county. Where motions are pending both for modification and enforcement, a certification of arrears shall be forwarded by the probation office to the court of original venue seven (7) days prior to the return date.
(b) Where any judgment requires payment through a probation office, all motions for modification or enforcement shall be served by both regular and certified mail upon the probation office in that county as if it were a party to the action.
5:7-7. Delay in Prosecution: Order to Proceed
In divorce and nullity actions, a party either resisting an order of dismissal pursuant to R. 1:13-7 or seeking an order to proceed after such dismissal shall file an affidavit stating the reason for the delay, the relations of the parties toward each other since the commencement of the action, and any agreements or understandings between them.
Bifurcation of trial of the marital dissolution or custody dispute from trial of disputes over support and equitable distribution shall be permitted only with the approval of the Family Presiding Judge, which approval shall be granted only in extraordinary circumstances and for good cause shown.
Rule 5:7A. DOMESTIC VIOLENCE: RESTRAINING ORDERS
(a) Application for Temporary Restraining Order. Except as provided in paragraph (b) herein, an applicant for a temporary restraining order shall appear before a judge personally to testify upon the record or by sworn complaint submitted pursuant to N.J.S.A. 2C:25-12. If it appears that the applicant is in danger of domestic violence, the judge shall, upon consideration of the applicant's domestic violence affidavit, complaint or testimony, order emergency relief including ex parte relief, in the nature of a temporary restraining order as authorized by N.J.S.A. 2C:25-1 et seq.
(b) Issuance of Temporary Restraining Order by Electronic Communication. A judge may issue a temporary restraining order upon sworn oral testimony of an applicant who is not physically present. Such sworn oral testimony may be communicated to the judge by telephone, radio or other means of electronic communication. The judge or law enforcement officer assisting the applicant shall contemporaneously record such sworn oral testimony by means of a tape-recording device or stenographic machine if such are available; otherwise, adequate long hand notes summarizing what is said shall be made by the judge. Subsequent to taking the oath, the applicant must identify himself or herself, specify the purpose of the request and disclose the basis of the application. This sworn testimony shall be deemed to be an affidavit for the purposes of issuance of a temporary restraining order. A temporary restraining order may issue 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. Upon issuance of the temporary restraining order, the judge shall memorialize the specific terms of the order and shall direct the law enforcement officer assisting the applicant to enter the judge's authorization verbatim on a form, or other appropriate paper, designated the duplicate original temporary restraining order. This order shall be deemed a temporary restraining order for the purpose of N.J.S.A. 2C:25-14. The judge shall direct the law enforcement officer assisting applicant to print the judge's name on the temporary restraining order. The judge shall also contemporaneously record factual determinations. Contemporaneously the judge shall issue a written confirmatory order and shall enter thereon the exact time of issuance of the duplicate order. In all other respects, the method of issuance and contents of the order shall be that required by sub-section (a) of this rule.
(c) Temporary Restraining Order. In court proceedings instituted under the Prevention of Domestic Violence Act of 1990, the judge shall issue a temporary restraining order when the applicant appears to be in danger of domestic violence. The order may be issued ex parte when necessary to protect the life, health, or well-being of a victim on whose behalf the relief is sought.
(d) Final Restraining Order. A final order restraining a defendant shall be issued only on a specific finding of domestic violence or on a stipulation by a defendant to the commission of an act or acts of domestic violence as defined by the statute.
(e) Procedure Upon Arrest Without a Warrant. Whenever a law enforcement officer has effected an arrest without a warrant on a criminal complaint brought for a violation otherwise defined as an offense under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-1 et seq., bail may be set and a complaint-warrant may be issued pursuant to the procedures prescribed in R. 3:4-1(b).
(f) Venue in Domestic Violence Proceedings. Venue in domestic violence actions shall be laid in the county where either of the parties resides, in the county where the domestic violence offense took place, or in the county where the victim of domestic violence is sheltered. If the action is not brought in a county of residence, venue shall be transferred to a county of residence for the final hearing unless the court orders the matter retained in the county where the complaint is filed for good cause shown.
Court Comment to Amendment Effective November 18, 1993
After a thorough review of positions taken by several knowledgeable and interested groups, the Court has decided to adopt a Rule that accords with the recommendation of the Court-appointed Statewide Domestic Violence Working Group. That body exists to coordinate the response of the Judiciary to domestic violence issues.
The Rule reflects the position recommended to the Court by the Statewide Domestic Violence Working Group. The policy underlying this Rule was initially embodied in the Domestic Violence Procedures Manual, which was jointly issued by the Court and the Attorney General.
After that policy became operative, the Family Law Section of the New Jersey State Bar Association requested reconsideration of the policy prohibiting consent orders without a finding by the court, or an admission by the defendant, of domestic violence. Subsequently, the Court asked for additional comment from the Statewide Domestic Violence Working Group, the Family Division Practice Committee, and other agencies and organizations interested in the subject. Legal Services of New Jersey, the Governor's Advisory Council on Domestic Violence, the Commission on Sex Discrimination in the Statutes, and the New Jersey Coalition for Battered Women all took positions consistent with that of the Statewide Domestic Violence Working Group.
The Family Law Section, the New Jersey State Bar Association, and the Women's Rights Section of the New Jersey State Bar Association favored a policy permitting the entry of consent orders to dispose of allegations of domestic violence without conditioning entry on a requirement of a finding or stipulation of domestic violence. The Court's Family Practice Committee also favored that position. The Conference of Family Division Presiding Judges was divided on the issue, a majority apparently favoring limited use of consent orders.
The Court reviewed numerous and detailed submissions and arguments on the issue that had previously been considered by those various groups and thereafter made available to the Court. Given the extensive debate and thorough airing of the positions, the Court concluded that no further comment period or hearing would be necessary and that the importance of the matter called for disposition now rather than waiting for the probable effective date of the Rules cycle. The Court has concluded that on balance the current prohibition on consent orders not containing a finding or admission of domestic violence should continue.
Legislation on this matter is pending. Given the substantial policy considerations involved, the Court will give considerable deference to a legislative determination, if one is made.
RULE 5:8. CUSTODY OF CHILDREN
5:8-1. Investigation Before Award
In family actions in which the court finds that the custody of children is a genuine and substantial issue the court shall refer the case to mediation in accordance with the provisions of R. 1:40-5. During the mediation process, the parties shall not be required to participate in custody evaluations with any expert. The parties may, however, agree to do so. The mediation process shall last no longer than two months from the date it commences or is ordered to commence, whichever is sooner. The court, on good cause shown, may extend the time period. The date for conclusion of mediation shall be set forth in any Case Management Order(s). If the mediation is not successful in resolving custody issues, the court may before final judgment or order require an investigation to be made by the Family Division of the character and fitness of the parties, the economic condition of the family and the financial ability of the party to pay alimony or support or both. In other family actions the court may, if the public interest so requires, order such an investigation. The court may continue any family action for the purpose of such investigation, but shall not withhold the granting of any temporary relief by way of alimony, support or pendente lite orders pertaining to parenting issues under R. 5:5-4 and R. 5:7-2 where the circumstances require. Such investigation of the parties shall be conducted by the Family Division of the county of venue, notwithstanding that one of the parties may live in another county, and the Family Division shall file its report with the court no later than 45 days after its receipt of the judgment or order requiring the investigation, unless the court otherwise provides. Such investigation of the parties shall be conducted by the probation office of the county of the home state of the child, notwithstanding that one of the parties may live in another country or state.
5:8-2. Direction for Periodic Reports
If an award of custody of minor children has been made, the court may in its discretion file a certified copy of its order or judgment with the probation office of the county or counties in which the child or children reside with a direction therein to such probation office to make periodic reports to the court as to the status of the custody. It shall be the duty of counsel to file 2 copies of the order or judgment with the probation office within 2 days, together with information concerning the exact place of residence of the child or children. Upon the filing of such report, the court may on its own motion and where it deems it necessary, reopen the case and schedule a formal hearing on proper notice to all parties.
A certified copy of a custody decree of another state filed with the Clerk of the Superior Court of this State shall be sent to the probation office of the county or counties in which the child or children reside.
5:8-3. Investigation After Award
The court may on its own motion when it deems it necessary or where an application is made by either party to modify the award or terms thereof, in its discretion require the investigation provided for in R. 5:8-1. The court may continue such application for the purpose of such investigation and report.
5:8-4. Filing of Reports
The written report of an investigation made pursuant to this rule shall be filed with the court, shall be furnished to the parties, and shall thereafter be filed in the office of the Chief Probation Officer. The report shall be regarded as confidential, except as otherwise provided by rule or by court order. The report shall be received as direct evidence of the facts contained therein which are within the personal knowledge of the probation officer who made the investigation and report, subject to cross-examination
5:8-5. Custody and Parenting Time/Visitation Plans, Recital in Judgment or Order
(a) In any family action in which the parties cannot agree to a custody or parenting time/visitation arrangement, the parties must each submit a Custody and Parenting Time/Visitation Plan to the court no later than seventy-five (75) days after the last responsive pleading, which the court shall consider in awarding custody and fixing a parenting time or visitation schedule.
Contents of Plan. The Custody and Parenting Time/Visitation Plan shall include but shall not be limited to the following factors:
(1) Address of the parties.
(2) Employment of the parties.
(3) Type of custody requested with the reasons for selecting the type of custody.
(a) Joint legal custody with one parent having primary residential care.
(b) Joint physical custody.
(c) Sole custody to one parent, parenting time/visitation to the other.
(d) Other custodial arrangement.
(4) Specific schedule as to parenting time/visitation including, but not limited to, weeknights, weekends, vacations, legal holidays, religious holidays, school vacations, birthdays and special occasions (family outings, extracurricular activities and religious services).
(5) Access to medical school records.
(6) Impact if there is to be a contemplated change of residence by a parent.
(7) Participation in making decisions regarding the child(ren).
(8) Any other pertinent information.
(b) The court shall set out in its order or judgment fully and specifically all terms and conditions relating to the award of custody and proper support for the children.
(c) Failure to comply with the provisions of the Custody and Parenting Time/Visitation Plan may result in the dismissal of the non-complying party's pleadings or the imposition of other sanctions, or both. Dismissed pleadings shall be subject to reinstatement upon such conditions as the court may order.
5:8-6. Trial of Custody Issue
Where the court finds that the custody of children is a genuine and substantial issue, the court shall set a hearing date no later than six months after the last responsive pleading. The court may, in order to protect the best interests of the children, conduct the custody hearing in a family action prior to a final hearing of the entire family action. As part of the custody hearing, the court may on its own motion or at the request of a litigant conduct an in camera interview with the child(ren). In the absence of good cause, the decision to conduct an interview shall be made before trial. If the court elects not to conduct an interview, it shall place its reasons on the record. If the court elects to conduct an interview, it shall afford counsel the opportunity to submit questions for the court's use during the interview and shall place on the record its reasons for not asking any question thus submitted. A stenographic or recorded record shall be made of each interview in its entirety. Transcripts thereof shall be provided to counsel and the parties upon request and payment for the cost. However, neither parent shall discuss nor reveal the contents of the interview with the children or third parties without permission of the court. Counsel shall have the right to provide the transcript or its contents to any expert retained on the issue of custody. Any judgment or order pursuant to this hearing shall be treated as a final judgment or order for custody.
RULE 5:8A. APPOINTMENT OF COUNSEL FOR CHILD
In all cases where custody or parenting time/visitation is an issue, the court may, on the application of either party or the child or children in a custody or parenting time/visitation dispute, or on its own motion, appoint counsel on behalf of the child or children. Counsel shall be an attorney licensed to practice in the courts of the State of New Jersey and shall serve as the child's lawyer. The appointment of counsel should occur when the trial court concludes that a child's best interest is not being sufficiently protected by the attorneys for the parties. Counsel may, on an interim basis or at the conclusion of the litigation, apply for an award of fees and costs with an appropriate affidavit of services, and the trial court shall award fees and costs, assessing same against either or both of the parties.
RULE 5:8B. APPOINTMENT OF GUARDIAN AD LITEM
(a) Appointment. In all cases in which custody or parenting time/visitation is an issue, a guardian ad litem may be appointed by court order to represent the best interests of the child or children if the circumstances warrant such an appointment. The services rendered by a guardian ad litem shall be to the court on behalf of the child. A guardian ad litem may be appointed by the court on its own motion or on application of either or both of the parents. The guardian ad litem shall file a written report with the court setting forth findings and recommendations and the basis thereof, and shall be available to testify and shall be subject to cross-examination thereon. In addition to the preparation of a written report and the obligation to testify and be cross-examined thereon, the duties of a guardian may include, but need not be limited to, the following:
1. Interviewing the children and parties.
2. Interviewing other persons possessing relevant information.
3. Obtaining relevant documentary evidence.
4. Conferring with counsel for the parties.
5. Conferring with the court, on notice to counsel.
6. Obtaining the assistance of independent experts, on leave of court.
7. Obtaining the assistance of a lawyer for the child (Rule 5:8A) on leave of court.
8. Such other matters as the guardian ad litem may request, on leave of court.
(b) Objection or Refusal of Appointment. A proposed guardian ad litem shall have the right to consent or to decline to serve as such, notice of such decision to be in writing to the court with copies to counsel. The parties shall have the right to object to the person appointed as guardian ad litem on good cause shown.
(c) Term. The term of the guardian ad litem shall be coextensive with the application pending before the court and shall end on the entry of a Judgment of Divorce or an Order terminating the application for which the appointment was made, unless continued by the court. The guardian ad litem shall have no obligation to file a notice of appeal from a Judgment or Order nor to participate in an appeal filed by a party.
(d) Fee. The hourly rate to be charged by the guardian ad litem shall be fixed in the initial appointing order and the guardian ad litem shall submit informational monthly statements to the parties. The court shall have the power and discretion to fix a retainer in the appointing order and to allocate final payment of the guardian ad litem fee between the parties. The guardian ad litem shall submit a certification of services at the conclusion of the matter, on notice to the parties, who will thereafter be afforded the right to respond prior to the court fixing the final fee.
Official Comment for Rules 5:8A and 5:8B
The purpose of Rules 5:8A and 5:8B is to eliminate the confusion between the role of a court-appointed counsel for a child and that of a court-appointed guardian ad litem (GAL). The Supreme Court's Family Division Practice Committee in its 1987-1988 Annual Report distinguishes the roles.
A court-appointed counsel's services are to the child. Counsel acts as an independent legal advocate for the best interests of the child and takes an active part in the hearing, ranging from subpoenaing and cross-examining witnesses to appealing the decision, if warranted. If the purpose of the appointment is for legal advocacy, then counsel would be appointed.
A court-appointed guardian ad litem's services are to the court on behalf of the child. The GAL acts as an independent fact finder, investigator and evaluator as to what furthers the best interests of the child. The GAL submits a written report to the court and is available to testify. If the purpose of the appointment is for independent investigation and fact finding, then a GAL would be appointed. The GAL can be an attorney, a social worker, a mental health professional or other appropriate person. If the primary function of the GAL is to act in the capacity of an expert, then the court should ordinarily appoint a GAL from the appropriate area of expertise. Attorneys acting on behalf of children in abuse or neglect cases and in termination of parental rights cases should act as counsel for the child pursuant to Rule 5:8A rather than in the capacity of a GAL pursuant to Rule 5:8B. See, Matter of M.R., 135 N.J. 155, 174, 638 A.2d 1274, 1283 (1994)).
These rules are not intended to expand the circumstances when such appointments are to be made; neither are these appointments to be made routinely.