Text of NJ A 5180 (2023)

ASSEMBLY, No. 5180 STATE OF NEW JERSEY 220th LEGISLATURE INTRODUCED FEBRUARY 13, 2023 Sponsored by: Assemblywoman SADAF F. JAFFER District 16 (Hunterdon, Mercer, Middlesex and Somerset) Assemblywoman MILA M. JASEY District 27 (Essex and Morris) Assemblyman RAJ MUKHERJI District 33 (Hudson) Co-Sponsored by: Assemblyman Stanley SYNOPSIS Establishes certain protections for persons providing, receiving, or allowing children to receive gender-affirming health care. CURRENT VERSION OF TEXT As introduced. An Act concerning gender-affirming care, amending P.L.2004, c.147 (C.2A:34-53 et seq.), and supplementing Title 2A of the New Jersey Statutes, and Titles 9, 26, and 45 of the Revised Statutes. Be It Enacted by the Senate and General Assembly of the State of New Jersey: 1. Section 13 of P.L.2004, c.147 (C.2A:34-65) is amended to read as follows: 13. a. Except as otherwise provided in section 16 of this act, or section 1 of P.L.2013, c.7 (C.9:2-12.1) concerning a service member's absence due to a deployment or service-related treatment as set forth in that section, a court of this State has jurisdiction to make an initial child custody determination only if: (1) this State is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State; (2) a court of another state does not have jurisdiction under paragraph (1) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under section 19 or 20 of this act and: (a) the child and the child's parents, or the child and at least one parent or a person acting as a parent have a significant connection with this State other than mere physical presence; and (b) substantial evidence is available in this State concerning the child's care, protection, training and personal relationships; (3) all courts having jurisdiction under paragraph (1) or (2) of this subsection have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under section 19 or 20 of this act; or (4) no state would have jurisdiction under paragraph (1), (2) or (3) of this subsection. b. Subsection a. of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this State. c. Physical presence of, or personal jurisdiction over, a party or a child is neither necessary nor sufficient to make a child custody determination. d. A court of this State may assume temporary emergency jurisdiction in accordance with section 16 of this act. e. The presence of the child in this State for the purpose of receiving gender-affirming health care as defined in section 5 of P.L., c. (C ) (pending before the Legislature as this bill) is sufficient to meet the requirements of subparagraph (a) of paragraph (2) of subsection a. of this section. (cf: P.L. 2013, c.7, s.2) 2. Section 16 of P.L.2004, c.147 (C. 2A:34-68) is amended to read as follows: 16. a. A court of this State has temporary emergency jurisdiction if the child is present in this State and the child has been abandoned, or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse, or the child is unable to receive gender-affirming health care as defined in section 5 of P.L. c., (C. ) (pending before the Legislature as this bill) in the child's home state. b. If there is no previous child custody determination that is entitled to be enforced under this act, and if no child custody proceeding has been commenced in a court of a state having jurisdiction under sections 13 through 15 of this act, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under sections 13 through 15 of this act. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under sections 13 through 15 of this act, a child custody determination made under this section becomes a final determination if: (1) it so provides; and (2) this State becomes the home state of the child. c. If there is a previous child custody determination that is entitled to be enforced under this act, or a child custody proceeding has been commenced in a court of a state having jurisdiction under sections 13 through 15 of this act, any order issued by a court of this State under this section must specify in the order a period of time which the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under sections 13 through 15 of this act. The order issued in this State remains in effect until an order is obtained from the other state within the period specified or the period expires. d. A court of this State which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made, by a court of a state having jurisdiction under sections 13 through 15 of this act, shall immediately communicate with the other court. A court of this State which is exercising jurisdiction pursuant to sections 13 through 15 of this act, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order. (cf: P.L.2004, c.147, s.16) 3. Section 19 of P.L.2004, c.147 (C.2A:34-71) is amended to read as follows: 19. a. Inconvenient Forum. A court of this State that has jurisdiction under this act to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon the court's own motion, request of another court or motion of a party. b. Before determining whether it is an inconvenient forum, a court of this State shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including: (1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; (2) the length of time the child has resided outside this State; (3) the distance between the court in this State and the court in the state that would assume jurisdiction; (4) the relative financial circumstances of the parties; (5) any agreement of the parties as to which state should assume jurisdiction; (6) the nature and location of the evidence required to resolve the pending litigation, including the testimony of the child; (7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and (8) the familiarity of the court of each state with the facts and issues of the pending litigation. c. If a court of this State determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper. d. A court of this State may decline to exercise its jurisdiction under this act if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding. e. A court of this State shall be the appropriate forum to exercise jurisdiction in a case when the law or policy of the other state that may take jurisdiction limits the ability of a parent to obtain gender-affirming health care, as defined in section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill), for their child. (cf: P.L.2004, c.147, s.19) 4. Section 20 of P.L.2004, c.147 (C.2A:34-72) is amended to read as follows: 20. Jurisdiction Declined by Reason of Conduct. a. Except as otherwise provided in section 16 of this act or by other law of this State, if a court of this State has jurisdiction under this act because a person invoking the jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless: (1) the parents and all persons acting as parents have acquiesced in the exercise of jurisdiction; (2) a court of the state otherwise having jurisdiction under sections 13 through 15 of this act determines that this State is a more appropriate forum under section 19 of this act; or (3) no other State would have jurisdiction under sections 13 through 15 of this act. b. If a court of this State declines to exercise its jurisdiction pursuant to subsection a. of this section, it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the wrongful conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under sections 13 through 15 of this act. c. If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction pursuant to subsection a. of this section, it shall charge the party invoking the jurisdiction of the court with necessary and reasonable expenses including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the award would be inappropriate. The court may not assess fees, costs, or expenses against this State except as otherwise provided by law other than this act. No fees, costs or expenses shall be assessed against a party who is fleeing an incident or pattern of domestic violence or mistreatment or abuse of a child or sibling, unless the court is convinced by a preponderance of evidence that such assessment would be clearly appropriate. d. In making a determination under this section, a court shall not consider as a factor weighing against the petitioner any taking of the child or retention of the child from the person who has rights of legal custody, physical custody or visitation, if there is evidence that the taking or retention of the child was to protect the petitioner from domestic violence, or to protect the child or sibling from mistreatment or abuse, or for the purposes of receiving gender-affirming health care, as defined in section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill), for the child. (cf: P.L.2004, c.147, s.20) 5. As used in P.L. c, (C. ) (pending before the Legislature as this bill): "Gender-affirming health care" means care that focuses on a transgender person's physical, mental, and social health needs and well-being while confirming the person's gender identity, including but not limited to, psychological or psychiatric care, surgery, hormone replacement therapy, and other nonsurgical treatments intended to align certain physical aspects of a person's gender identity. "Person" means a person, any State, county, or local governmental entity or instrumentality, a partnership, an association, a limited liability company, or a corporation. 6. (New section) Notwithstanding the provisions of N.J.S.2A:160-14, the Governor shall not surrender, on demand of the executive authority of any other state, any person who: a. is found in this State; b. was not in the state whose executive authority is making the demand at the time of the commission of the alleged crime and has not fled therefrom; and c. is charged in the state whose executive authority is making the demand with providing, receiving, or allowing a child to receive gender-affirming health care that is permitted under the laws of this State, including on any theory of vicarious, joint, several, or conspiracy liability. 7. (New section) a. Notwithstanding the provisions of any law, rule, regulation, or order to the contrary, an attorney or counselor at law who engages in this State in the practice of law shall not respond to any subpoena issued by another state or jurisdiction if the subpoena relates to a violation of that state's or jurisdiction's law against a person providing, receiving, or allowing a child to receive gender-affirming health care that is permitted under the laws of this State. b. Notwithstanding the provisions of any law, rule, regulation, or order to the contrary, a State, county, or local law enforcement agency shall not: (1) knowingly make an, or participate in the, arrest of a person pursuant to an outstanding arrest warrant issued by another state or jurisdiction for a violation of that state's or jurisdiction's law against a person providing, receiving, or allowing a child to receive gender-affirming health care that is permitted under the laws of this State; and (2) cooperate with, or respond to, an inquiry from a state or jurisdiction about a person providing, receiving, or allowing a child to receive gender-affirming health care that is permitted under the laws of this State; 8. (New section) Any law or judicial ruling of another state or jurisdiction authorizing a state agency to remove a child from the care and custody of the child's parent or guardian as a result of the parent or guardian allowing the child to receive gender-affirming health care, as defined in section 5 of P.L. ,c. (C. ) (pending before the Legislature as this bill), shall not be enforced by a court of this State in a case pending therein. 9. a. (New section) A health care facility licensed pursuant to P.L.1971, c.136 (C.26:2H-1 et seq.) shall not provide the medical records of any child seeking or receiving gender-affirming health care, as defined in section 5 of P.L. ,c. (C. ) (pending before the Legislature as this bill), in furtherance of any interstate investigation or proceeding, based on another state's law, seeking to impose civil or criminal liability upon a person: (1) for the provision, receipt, or seeking of, or inquiring or responding to an inquiry about, the person providing gender-affirming health care to a child that is permitted under the laws of this State; (2) in response to a subpoena issued by another state relating to the person providing gender-affirming care to a child that is permitted under the laws of this State; or (3) for assisting, advising, aiding, abetting, facilitating, soliciting, or conspiring with any person or entity providing, receiving, seeking, or inquiring or responding to an inquiry about, the person providing gender-affirming health care to a child that is permitted under the laws of this State. b. This section shall not apply to any investigation or proceeding when the conduct subject to potential liability under the investigation or proceeding would be subject to liability under the laws of this State if committed in this State. This section shall not apply if it is necessary for the agency or person to engage in conduct otherwise prohibited by this section in order to comply with a valid order issued by a court with jurisdiction over the agency or person, or to comply with applicable provisions of State or federal law. 10. a. (New section) A health care professional licensed pursuant to Title 45 or Title 52 of the Revised Statutes shall not provide the medical records of any child seeking or receiving gender affirming health care, as defined in section 5 of P.L. , c. (C. ) (pending before the Legislature as this bill), in furtherance of any interstate investigation or proceeding, based on another state's law, seeking to impose civil or criminal liability upon a person: (1) for the provision, receipt, or seeking of, or inquiring or responding to an inquiry about, the person providing gender-affirming health care to a child that is permitted under the laws of this State; (2) in response to a subpoena issued by another state relating to the person providing gender-affirming care to a child that is permitted under the laws of this State; or (3) for assisting, advising, aiding, abetting, facilitating, soliciting, or conspiring with any person or entity providing, receiving, seeking, or inquiring or responding to an inquiry about, the person providing gender-affirming health care to a child that is permitted under the laws of this State. b. This section shall not apply to any investigation or proceeding when the conduct subject to potential liability under the investigation or proceeding would be subject to liability under the laws of this State if committed in this State. This section shall not apply if it is necessary for a person to engage in conduct otherwise prohibited by this section in order to comply with a valid order issued by a court with jurisdiction over the person or entity, or to comply with applicable provisions of State or federal law. 11. This act shall take effect immediately. STATEMENT This bill establishes certain protections for persons who provide, receive, or allow a child to receive gender-affirming health care. As defined in the bill, "gender-affirming care" means care that focuses on a transgender person's physical, mental, and social health needs and well-being while confirming the person's gender identity, including but not limited to, psychological or psychiatric care, surgery, hormone replacement therapy, and other nonsurgical treatments intended to align certain physical aspects of a person's gender identity. Specifically, the bill amends P.L.2004, c.187 (C.2A:34-53 et seq.), the "Uniform Child Custody Jurisdiction and Enforcement Act" to stipulate that: 1) the presence of the child in this State for the purpose of receiving gender-affirming health care is sufficient for a State court to have jurisdiction to make an initial child custody determination for a child, if the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence (section 13 of P.L.2004, c.147 (C.2A:34-65)); 2) a court of this State has temporary emergency jurisdiction if the child is present in this State and the child is unable to receive gender-affirming health care in the child's home state (section 16 of P.L.2004, c.147 (C. 2A:34-68)); 3) a court of this State is the appropriate forum to exercise jurisdiction in a child custody case when the law or policy of the other state that may take jurisdiction limits the ability of a parent to obtain gender-affirming health care for a child (section 19 of P.L.2004, c.147 (C.2A:34-71)); and 4) in making a determination about whether a court in this State can decline to exercise its jurisdiction over a child custody case, the court cannot consider the taking or keeping of the child from the person who has legal or physical custody or visitation rights as a factor weighing against a petitioner in the case, if there is evidence that taking or keeping the child was so that the child could receive gender-affirming health care (section 20 of P.L.2004, c.147 (C.2A:34-72)). The bill also prohibits the Governor from extraditing a person who: is found in this State; was not in the state making the demand for extradition at the time of the commission of the alleged crime and did not flee; and is charged in the state making the demand for extradition with providing, receiving, or allowing a child to receive gender-affirming health care that is permitted under the laws of this State. Under the bill's provisions, an attorney or counselor at law who practices law in the State is prohibited from responding to any subpoena issued by another state or jurisdiction if the subpoena relates to a violation of that state's or jurisdiction's law against a person providing, receiving, or allowing a child to receive gender-affirming health care that is permitted under the laws of this State. The bill also prohibits a State, county, or local law enforcement agency from: 1) knowingly making an, or participating in the, arrest of a person pursuant to an outstanding arrest warrant issued by another state or jurisdiction for a violation of that state's or jurisdiction's law against a person providing, receiving, or allowing a child to receive gender-affirming health care that is permitted under the laws of this State; and 2) cooperating with, or responding to, an inquiry from another state or jurisdiction about a person providing, receiving, or allowing a child to receive gender-affirming health care that is permitted under the laws of this State. Under the bill, any law or judicial ruling of another state or jurisdiction authorizing a state agency to remove a child from the care and custody of the child's parent or guardian as a result of the parent or guardian allowing the child to receive gender-affirming health care cannot be enforced by a court of this State. The bill's provisions bar a health care facility licensed pursuant to pursuant to P.L.1971, c.136 (C.26:3H-2 et seq.) and a health care professional licensed pursuant to Title 45 or Title 52 of the Revised Statutes from providing the medical records of any child seeking or receiving gender-affirming health care in furtherance of any interstate investigation or proceeding, based on another state's law, seeking to impose civil or criminal liability upon a person or entity for: 1) the provision, receipt, or seeking of, or inquiring or responding to an inquiry about, the person providing gender-affirming health care to a child that is permitted under the laws of this State; or 2) assisting, advising, aiding, abetting, facilitating, soliciting, or conspiring with any person or entity providing, receiving, seeking, or inquiring or responding to an inquiry about, the person providing gender-affirming health care to a child that is permitted under the laws of this State. A health care facility or health care professional would be required to provide the medical records of any child seeking or receiving gender-affirming health care in the furtherance of an investigation or proceeding if the conduct subject to potential liability under the investigation or proceeding would be subject to liability under New Jersey law if committed in New Jersey, or if the provision of such medical records is necessary for a person to engage in conduct otherwise prohibited by the bill in order to comply with a valid order issued by a court with jurisdiction over the person, or to comply with applicable provisions of State or federal law. As defined in the bill: "person" means an individual, any State, county, or local governmental entity or instrumentality, a, partnership, an association, a limited liability company, or a corporation.