Based upon this proposed legislation, the following language would be added to N.J.S.A. 2C:25-26(a) and N.J.S.A. 2C:25-27: “If the victim is pregnant the court may order that the victim’s child shall, immediately upon birth, be included in the order. “
Furthermore, N.J.S.A. 2C:25-29(b) would be amended to include the following language as subsection (20): “An order providing that, if the plaintiff is pregnant, the plaintiff’s child shall be included in the restraining order immediately upon birth.”
This proposed legislation, in addition to being a proper Legislative follow up to the published Judicial decision previously mentioned, is important on several levels. First and foremost, this proposed legislation makes it clear and unambiguous that any pregnant victim of domestic violence can seek and be granted protection for their unborn child upon their birth without any other qualifiers needed to be shown or proven. This is significant because case law is always up to interpretation and without this legislation, an argument could always be made that the Court’s decision only intended to protect victims in the same or similar circumstances as the victim in that particular decision. That could always prove to be problematic because the victim in that particular case suffered the unfortunate circumstances of a very violent, planned, physical attack upon her while she was pregnant. Needless to say, the circumstances of that case were of a highly violent nature, which thankfully does not occur in every domestic violence case. Under the proposed legislation, the circumstances of the domestic violence would be of no consequence and any victim that receives a restraining order can properly have their unborn child protected upon that child’s birth without having to go back to Court for an updated, amended, or new order.
Secondly, this proposed legislation presents a formal resolution to a previously unresolved problem that has the likelihood of presenting itself again in the future. Specifically, there was previously no recourse for a pregnant victim of domestic violence to ensure protection for an unborn child without having to go back to the Court after giving birth. This was given a high level of consideration by the Court when entering its decision in the above referenced matter. Furthermore, this proposed legislation effectively takes an otherwise difficult analysis based upon each case’s facts and circumstances out of the hands of the judiciary and allows for a more efficient enforcement of the statutory language. As mentioned above, enforcing the clear and unambiguous language set forth in the proposed legislation is an easier and more efficient prospect for the judiciary of this State because they are no longer required to make the determination as to whether the decision in B.C. v. T.G., should be extended to apply to that current matter, as they would now be able to provide that protection to any pregnant victim of domestic violence without any consideration as to the nature or effect of that domestic violence.
As presented in any and all Court decisions and/or legislation, there continue to be unresolved questions or unanswered dilemmas that continue to exist despite the Court’s prior decision and the proposed legislation referenced above. For example, will this proposed legislation, in addition to the Court’s prior decision, lead to an increased number of domestic violence complaints being filed by pregnant spouses looking to gain an upperhand in pending custody litigation? While this would likely not lead to the entry of restraining orders that would otherwise not have been entered without this proposed legislation, it is safe to assume that there is at the very least the potential for an increased number of domestic violence complaints that the Courts of this State will be forced to deal with. If that in fact does come to fruition, it would obviously be an unintended negative effect of this otherwise effective and problem-solving legislation.
Another hypothetical to consider would be a case where the pregnant spouse is the offender and not the victim of the domestic violence. Given the Court’s prior decision and the language of this proposed legislation, the victim of this domestic violence would not necessarily be afforded the same protections and may not be granted protection to that unborn child. Based upon the intent of the Court’s decision and this proposed legislation, it appears that it would be a common sense extension thereof to include protection to the unborn child of an offender of domestic violence for the same reason the unborn child of a victim of domestic violence is provided protection. However, that also brings about a number of additional questions to be answered, such as whether it is in the best interests of a child to be taken away from their mother at birth and restrained from contact with that mother based upon the domestic violence incident or is it proper to transfer custody of a newborn child to the non-pregnant spouse based solely upon the consideration that the non-pregnant spouse was the victim of domestic violence? While the aforementioned argument, along with any other good faith argument, can always be made it appears that this is something that either was not yet considered by the legislature and/or not yet appreciated as a possible extension of the protections being offered by this proposed legislation. It may seem a bit of an over-extension of the current circumstances that led to the Court’s decision and this proposed legislation, but it is our job, as attorneys, to consider any and all possible circumstances and the proper application of the law to those circumstances.
With years of experience interpreting and applying domestic violence law in ew Jersey, the attorneys at James P. Yudes, P.C., are willing and able to answer any questions one might have regarding this proposed legislation and the possible impact it may have on a given set of circumstances or assist you with regard to any issues involving domestic violence in your relationship.