Punitive sanctions for custody violations generally are obtained through criminal prosecution by the State for violation of the statute prohibiting interference with custody, N.J.S. 2C:13-4. Although R. 1:10-2 does not prohibit the State from initiating a criminal contempt proceeding for a custody violation, there is no published case law in which the rule has been applied to an interference claim. Thus, despite the provisions of Rule 5:3-7 and N.J.S. 2C:29-9 permitting incarceration for violation of a custody order, such a remedy is appropriate only where the violation amounts to a crime under N.J.S. 2C:13-4, unless one of the statute's four affirmative defenses enumerated in N.J.S. 2C:13-4(c) have been met.
Pursuant to N.J.S. 2C:13-4, a court may impose criminal sanctions upon any person, including a parent, guardian, or other lawful custodian, who wrongfully deprives a parent of custody or parenting time by committing one of four enumerated actions. See, e.g., State v. Froland, 193 N.J. 186, 191 (2007); State v. Williams, 234 N.J. Super. 84, 86 (App. Div. 1989). And see Innes v. Carrascosa, 391 N.J. Super. 453, 479 (App. Div.), certif. den. 192 N.J. 73 (2007) (mother who fled with child to Spain in violation of court order indicted for eight counts of interference with child custody contrary to N.J.S. 2C:13-4(a) and one count of contempt contrary to N.J.S. 2C:29-9(a)). Note that in Innes, the attorney representing the mother also was held responsible, inasmuch as she released the child's passport to the mother in contravention of the parties' agreement, which was found to be the proximate cause of the damages suffered by the husband. See Innes v. Marzano-Lesnevich, 435 N.J. Super. 198, 217, 225 (App. Div. 2014).
As a practical matter, however, the remedy of criminal sanctions is rarely utilized or effective. Rather, civil means of enforcement should be exhausted before resorting to criminal remedies. See Criminal Law Revision Commission 1971 Commentary to N.J.S. 2C:13-4, included in the online version of Cannel, Current N.J. Criminal Code Annotated (GANN), Comment to N.J.S. 2C:13-4 (suggesting that "[o]ne should be especially cautious in providing penal sanctions applicable to estranged parents struggling over the custody of their children, since such situations are better regulated by custody orders enforced through contempt proceedings").
Interference with custody is a crime of the second degree if the child is taken, detained, enticed or concealed outside the United States or for more than 24 hours. N.J.S. 2C:13-4(a). Otherwise, it is a third-degree crime. Notably, the presumption of non-imprisonment set forth in N.J.S. 2C:44-1(e) for a first offense of a third-degree crime does not apply where the defendant is found guilty of interference with custody. N.J.S. 2C:13-4(a).
Prior to 1990, a parent could be found guilty only of interference with custody upon abducting a child to obtain more favorable custodial controlin knowing violation of a formal court order. See State v. Butterfoss, 234 N.J. Super. 606, 612-614 (Law Div. 1988); State v. Stocksdale, 138 N.J. Super. 312, 315 (Law Div. 1975) (each holding that, absent a custody order, a parent could not be charged with the crime of kidnapping). The law was substantially revised in 1990, to address parental abductions taking place prior to the entry of a formal court order. See L. 1990, c. 104. As a result, parents who abduct a child or retain custody in violation of a court order are prosecuted under the interference with custody statute rather than the kidnapping statute. This is not to say that parents cannot be charged with the crime of kidnapping. A conviction, however, would require evidence of force, threat, or deception. State v. Froland, 193 N.J. 186, 199 (2007). In addition, pursuant to the International Parental Kidnapping Crime Act, 18 U.S.C. § 1204, a parent's unlawful removal of a child may be a federal crime, even absent force, threat, or deception.
For additional interference with custody cases, see State v. Anastasia, 356 N.J. Super. 534 (App. Div. 2003); State v. Jones, 346 N.J. Super. 391 (App. Div.), certif. den. 172 N.J. 181 (2002). And see Paterno v. Paterno, 254 N.J. Super. 190, 192 (Ch. Div. 1991) (holding that an aggrieved parent may simultaneously utilize civil and criminal enforcement methods in order to stop the other parent's interference with custody or visitation). See also Cannel, Current N.J. Criminal Code Annotated (GANN), Comments on N.J.S. 2C:13-4 (interference with custody) and N.J.S. 2C:13-1(b)(4) (kidnapping).
See Fall and Romanowski, Relationships Involving Children
------------------------------
Curtis Romanowski Esq.
Senior Attorney - Proprietor
Metuchen NJ
(732)603-8585
------------------------------
Original Message:
Sent: 07-07-2015 16:57
From: David Perry Davis
Subject: Enforcement of OSC - custody
Been there. I don't want to digress, but someone tell me again how there's no gender issues in enforcement of custody and parenting time orders in New Jersey? Can anyone say to themselves with a straight face that this would be happening if the genders were reversed? Interference with custody or parenting time is a third degree crime, yet the police will turn a blind eye to situations like this (and overt continuing violations of parenting time orders), saying "it's a civil matter." Aggravated criminal sexual contact is also a crime of the third degree... but somehow police don't ignore it (as they shouldn't), telling a victim to seek civil remedies. Another dragon to slay at some point. I was a member of groups who fought and fought for years to have this made a specific crime (aside from 2C:29-9, contempt of a court order) in the hope it would then be taken seriously. Not a good feeling to see the legislature finally pass a bill, the governor sign it into law, and then to have the police to say they won't enforce it - or to selectively do so based on the gender of the victim.
Anyway, soap box aside, what's worked for me is an immediate letter to the chief of police citing the law and statute. Point out that interference with custody or parenting time is a third degree crime ( http://law.onecle.com/new-jersey/2c-the-new-jersey-code-of-criminal-justice/13-4.html / https://scholar.google.com/scholar?hl=en&as_sdt=4,31&q=%222c:13-4%22&scisbd=2 ). Cc county counsel and advise that you're putting them on notice that, if any harm whatsoever comes to the children due to the police department's failure to act and enforce the order, the police department, officers, and county will be held liability in a suit under the New Jersey Civil Rights Act. Cite them to Gormley v. Wood-El, 218 N.J. 72, 86 (2014)). Of course, butter this all up with how much you deeply love and worship and respect the police, but they need to act and do so ASAP to protect these kids.
Also (at the same time), go back to your trial judge and request a revision to the order specifically instructing that "the appropriate law enforcement authorities shall enforce the terms of this order." Might be able to do it via a hand-delivered letter with a proposed revised form of OSC. If you get action from the court before the police, send them a revised copy of the order.
---------------------------------------
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
www.FamilyLawNJ.pro
Voice: 609-737-2222
Fax: 609-737-3222
---------------------------------------