In my last blog post I noted that, effective September 1, 2019, a number of Court Rules directly impacting upon Family Part practice had been amended. In this blog post, I will continue this discussion, summarizing some additional court rule amendments, including those which were in response to, or in clarification of, statutory changes which went into effect over the last few years.
Rule 5:7A was adopted for the purpose of implementing the provisions of the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq., and provided a procedure by which a victim of domestic violence may obtain both temporary and long-term relief to the extent afforded under the statute. There were six (6) subparagraphs to this Rule, designated (a) through (f). However, as part of the 2019 Amendments, these subparagraphs were reorganized “to better reflect the flow of a case through the court process”. Notwithstanding this reorganization, most of the language of these Rule provisions remained unchanged, except for three (3) specific modifications/clarifications.
With respect to subparagraph (c) [formerly subparagraph (a)] dealing with applications for temporary restraining orders, a sentence was added to the end of that provision to the effect that in order to be eligible for a temporary restraining order, the applicant must qualify as a “victim of domestic violence” as defined by N.J.S.A. 2C:25-19(d). That statute has been amended several times to expand the class of persons who qualifying for its protection. Originally a “victim” was defined to include any person who was 18 years of age or older or who was an emancipated minor who had been subjected to domestic violence by a spouse, former spouse, or any other person who was a present household member or at any time a household member. A “victim of domestic violence” was subsequently defined to also include any person, regardless of age, who had been subjected to domestic violence by a person with whom the victim had a child in common, or with whom the victim anticipated having a child in common, if one of the parties was pregnant, as well as to include any person who had been subjected to domestic violence by a person with whom the victim has had a dating relationship. These provisions have been the subject of significant case law over the years given the remedial purpose of the domestic violence statute to protect victims to the greatest extent possible. This includes most recently the case of T.M. v. R.M.W., 456 N.J. Super. 446 (Ch. Div. 2017), wherein the family court concluded that a private relationship of consensual, but sporadic, sexual encounters could be construed as a “dating relationship” under the statute.
Subparagraph (e) [formerly subparagraph(d)] dealing with Final Restraining Orders was modified to now include language requiring that a hearing for a final restraining order must be held in the Superior Court within ten (10) days of the filing of an application, making same consistent with the requirement expressly stated in N.J.S.A. 2C:25-29.
Finally, subparagraph (f) [formerly subparagraph (e)] regarding criminal procedures incident to domestic violence matters was modified to delete the reference for bail and to call for the application of the Rule 3:4-1 complaint procedures.
Sexual Assault Survivor Protection Act
Originally adopted in September 2017, Rule 5:7B established procedures for obtaining
temporary and final protective orders under the Sexual Assault Survivor Protection Act, N.J.S.A. 2C:14-13 et seq. Enacted in 2015 to be effective in May of 2016, this statute was designed to afford victims of various enumerated sexual offenses, including non-consensual sexual contact, sexual penetration, lewdness or any attempt of such conduct, who were not eligible for restraining orders as a victim of domestic violence as defined in that Act (ie. absence of a required relationship-family type, dating, etc.) the ability to file an application for a protective order (as distinguished from a restraining order) regardless of whether criminal charges based upon the incident were filed or the disposition of such charges. It is noteworthy that the Sexual Assault Survivor Protection Act largely mirrors much of the language contained in the Prevention of Domestic Violence Act, including the opportunities to seek temporary and/or final protective orders, the administrative and court procedures for obtaining same, and the nature of the relief available to victims. As such, the provisions of Rule 5:7B were also similar to those contained in Rule 5:7A referred to above.
There were five (5) subparagraphs to Rule 5:7B, designated (a) through (e); however, as part of the 2019 Amendments, these subparagraphs were also reorganized to “better reflect the flow of a case through the court process”. Once again, notwithstanding this reorganization most of the language of the Rule provisions remained unchanged, except for two (2) specific modifications. With respect subparagraph (c)[formerly subparagraph (a)], dealing with applications for temporary protective orders, a sentence was added to the end of that provision so as to clarify those persons eligible for a temporary protective order consistent with the statute, namely any person alleged to be a victim of non-consensual sexual contact, sexual penetration or lewdness or any attempt at such conduct and who was not eligible for a restraining order as a “victim of domestic violence” as defined under N.J.S.A. 2C:25-19d.
Further, similar to the amendment to Rule 5:7A, subsection (e) [formerly subsection (d)] dealing with final protective orders was modified to now include language that a hearing for a final protective order was to be held in the Superior Court within ten (10) days of the filing of an application, consistent with the requirement of N.J.S.A. 2C:14-16.
Just as the Domestic Violence and Sexual Assault Survivor statutes are similar, so are their corresponding Rules, R.5:7A and R.5:7B. However in both instances, these Rules are merely intended to implement procedural aspects of those statutes, do so in a summary manner, and as such, the statutes themselves should be consulted to be more fully versed in their substantive and procedural requirements.
Gestational Carrier Matters
The struggle of men and women unable to have children on their own, whether due to the infertility of one or both, or the inability to carry a child, has been a serious issue for generations. While adoption was the only option in the past, reproductive advances have given rise to other alternatives. Many parents wanted to have a genetic or biological tie to the child. Artificial insemination afforded fathers to have children be conceived with their own sperm. If their partner was infertile or unable to carry a child, this gave rise to “surrogacy contracts” whereby a woman would agree to become pregnant on behalf of another couple, surrendering the child upon birth, and waiving any parental rights, and allowing for the child’s adoption – generally for a prearranged fee and/or other consideration. The validity and enforceability of such surrogacy contracts were what the Supreme Court was confronted with in the famous case of In re Baby M, 109 N.J. 396 (1988). On various grounds, the Court held such surrogacy contracts to be an invalid, unenforceable and against public policy. In that case, the “surrogate” was in fact the genetic and biological mother of the child, her own egg being the one conceived, and carried to term in her womb. She had been artificially inseminated with sperm from the contracted husband of the couple, with the intent for the wife to adopt the child after it was surrendered to the couple upon birth. The birth mother had a change of heart, and the Baby M litigation ensued. Clearly that the “surrogate mother” was the genetic and biological mother of the child was a substantial basis upon which the Court recognized a natural parent’s fundamental, constitutional and statutory rights and deeming such contracts as against public policy.
The evolution in reproduction science over the intervening years has largely rendered the “surrogate mother” process challenged in Baby M obsolete. In-vitro fertilization and implantation technology enabled a woman to be implanted with an embryo with whom she had no genetic connection, and carry that pregnancy to term. As a result, people began entering into “gestational surrogacy contracts”. The expectation was that since the woman carrying and giving birth was not genetically linked to the child, it would not raise the same fundamental parental rights concerns that doomed the surrogacy arrangements in Baby M. However, several court decisions, including A.H.W. v. G.H.B., 339 N.J. Super. 495(Ch. Div. 2000) and most importantly In re T.J.S., 212 N.J. 334 (2012), left the efficacy of such gestational contracts in doubt. While neither of these cases dealt with the validity or enforceability of gestational surrogacy contracts per se, their continued reference to the non-genetically related gestational carrier as a biological mother in whom fundamental parental rights were conferred, raised doubts as to the validity of such arrangements. In both sets of cases, the courts suggested that these were matters that needed to be legislatively addressed.
Indeed, since the Supreme Court’s 2012 decision in the In re T.J.S. case, the New Jersey Legislature endeavored to address the issue of gestational carrier agreements. Although none of those initial efforts had been enacted into law, in 2015, Rule 5:14-4 was nevertheless adopted in an effort to set forth procedures for establishing parentage in gestational surrogacy arrangements, incorporating procedural aspects addressed by the courts in both A.H.W. and T.J.S.
Finally, in 2018, the third time (in a change in governors) being the charm, the New Jersey Gestational Carrier Agreement Act, N.J.S.A. 9:17-60 et seq. was finally enacted into law. This Act would allow persons to enter into gestational carrier agreements; namely for the intended parents to enter into a contract with a woman 21 years of age or older to become pregnant by assisted reproductive technology without the use of her own egg and to surrender custody of the child to the intended parents immediately upon birth, and considered neither an adoption nor termination of parental rights as long as the requirements of the statute were strictly adhered to. In declaring that gestational carrier agreements executed pursuant to this Act were in accord with the public policy of this State, the Legislature stated as its intent and purpose to establish consistent standards and procedural safeguards to promote the best interest of the children who would be born as a result of such gestational carrier agreements, to protect all parties involved, and to recognize the technological advances in assisted reproductive medicine in ways to allow the use of these advances by intended parents and gestational carriers according to this public policy. I more fully addressed this topic and the statutory requirements in an earlier blog post in April of 2018.
As a result of this new statute, Rule 5:14-4 has been modified, albeit modestly. The amended rule now includes specific reference to complaints filed pursuant to the Act, added reference in various provisions to such “gestational carrier agreements”, and modified aspects of the notice and service requirements in such matters. However, like the rules referenced earlier, Rule 5:14-4 is somewhat summary in nature in regards to the handling of such gestational carrier matters; hence, a thorough review of the detailed and comprehensive statutory provisions and requirements is necessary given the complexity of these matters, not only when an action is being brought to enforce such agreements, but before they are even entered into.