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A state Supreme Court panel is proposing to enhance judicial oversight of domestic-violence search warrants and tighten the procedure for issuing them. Under current practice, governed by court Directive 16-01, domestic violence hearing officers, who need not be lawyers, can issue warrants for seizure of weapons. A judge need do no more than sign off on the officer’s decision. The proposed rule, R. 5:25-4, published last week as part of the Family Practice Committee’s biennial report [175 N.J.L.J. 1185], would require the judge to hear testimony prior to issuing a warrant. The committee’s recommendation for an increased judicial role comes in response to dicta in a 2002 appeals court decision, State v. Johnson, 352 N.J. Super. 15. There, the court overturned a conviction for possession of marijuana seized during a domestic violence weapons search because there were no facts justifying the search on the record or in the warrant. Though it was not necessary to the ruling, the Johnson panel said it felt “compelled” to question the wisdom of allowing a hearing officer to conduct hearings on search warrants. The court said the best approach was to send all warrant requests to a judge. But it suggested, as an alternative, requiring judges to take direct testimony when a hearing officer recommends a warrant or revising the TRO form to ensure that precise facts supporting a warrant are elicited. Both recommendations are embodied in the proposed rule, which would supplant Directive 16-01. The rule spells out that a hearing officer should ask whether the defendant possesses or has access to a weapon, and whether and why the complainant feels threatened. The directive required judicial review of the affidavit supporting the warrant, while the rule provides for the judge to hear testimony. If the judge finds probable cause based on a risk of serious bodily harm, he or she must place on the record that finding and the underlying reasons and facts. The rule retains the directive’s probable cause standard. In another proposed rule change affecting domestic violence cases, the committee rejected a hearsay exception that would have helped in prosecuting batterers whose victims declined to testify in court. Instead, the panel recommended adding information about the excited utterance exception to judicial training and court rule comments. The committee did not explain why it decided against the exception. But criminal defense lawyer Rocco Cipparone Jr., who heads a firm in Haddon Heights, says it might have run afoul of the Sixth Amendment right to confront witnesses, especially where the statement was one given to police. On March 8, the U.S. Supreme Court held in Crawford v. Washington, 02-9410, [digested in this issue at page 55] that use of a statement to police where a witness was unavailable violated the Sixth Amendment right to confront witnesses. Parenting Coordinators Aside from domestic violence concerns, other committee proposals are geared toward minimizing tensions that can taint and impede divorce and custody proceedings. A new rule, R. 5:8-7, would authorize judges to appoint parenting coordinators to help resolve day-to-day disputes about parenting time or responsibility. The parenting coordinators would try to help parents reach agreement. Where that failed, they would make a recommendation, which the parents could reject but either of them could bring it to the court. Communications with coordinators would not be confidential, unlike mediation. Though coordinators would generally be mental health professionals, such as psychologists, psychiatrists, social workers and family therapists, the parties could agree to designate a lawyer or other layperson. The parties would split the cost. Either parent could request the appointment, which also could be on the court’s own motion. The judge would have to find it to be in the best interest of the children and state the reasons. The proposed rule does not list the types of disputes that would call for a parenting coordinator. Family lawyer Philip Sobel suggests they would include child care, discipline, recreational activities and health care reimbursement. Disputes that might be well suited for a lawyer would include reimbursement, notice and child support recalculation issues, adds Sobel, a partner with East Hanover’s Sobel & Brown. The New Jersey chapter of the Association of Family and Conciliation Courts, which Sobel heads, originated the rule proposal. The committee noted that the current de facto use of parenting coordinators by some judges and that adoption of a rule would promote a more uniform practice. The committee also proposed a change to R. 5:3-3(b) to provide that where experts hired by the parties reach differing conclusions on parenting or custody, the court can direct them to confer in an effort to make a common recommendation. The intention is “to provide the courts with another judicial tool to use at their discretion to attempt to facilitate resolution,” said the report. John DeBartolo, chair of the Family Law Section of the New Jersey State Bar Association, predicts the proposal will be controversial. While a common recommendation is “a nice thing to have, . . . a lot of attorneys are going to be concerned about placing experts in a position where they think they have to compromise,” says DeBartolo, a partner with Atkinson & DeBartolo in Red Bank. And even though the proposed 5:3-3(b) provides that the court is not to be told about the experts’ discussion or either side’s refusal to accept a common recommendation, confidentiality is a concern, according to DeBartolo. The fear is that a client might blurt out the information, he says. DeBartolo also sees problems with the recommended change to R. 5:5-5 that would require parties in early settlement programs to give submissions to panelists five days before a scheduled session. “Individual counties are best able to determine particular rules or procedures,” he says, noting it was the Bar that started the ESP program and the rule recognizes the central role played by local bar groups in conjunction with presiding judges. Not every case justifies a memo, in his view. Though memoranda are required by a best practices directive, “once it’s a rule, there is a possibility, no a probability, that sanctions will be imposed,” he says. “The practice is stressful enough. We don’t need this added concern.”

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