JUVENILE DETAINED AND IN CUSTODY IN NJ

The following information has been provided to assist you in gaining an understanding of juvenile detention in New Jersey.

Initial Custody of Child

Police possess authority in New Jersey to take a child into custody where there is probable cause to believe that the juvenile has been delinquent as provided for under N.J.S.A. 2A:4A-23. It is important to understand that while a minor may be taken into custody, this process is not an arrest rather a measure to protect the child under R. 5:21-1. Police are required to immediately notify parents of the child’s being taken into custody and a delinquency complaint is to be filed as set forth in R. 5:20-1. For information on what constitutes “delinquency,” please refer to our Juvenile Arrests page.

Detention Beyond Initial Custody

R. 5:21-1 is the Court Rule governing juvenile detention after initial placement into custody. The rule provides, in pertinent part, that:

(a) Initial Detention Hearing. If the juvenile has not been released pursuant to R. 5:21-2, an initial hearing to determine whether pretrial detention is required pursuant to the standards of R. 5:21-5 shall be held no later than the morning following the juvenile’s placement in custody, including holidays and weekends. Said hearing shall be on oral or written notice to the juvenile and the juvenile’s parents or guardian, all of whom shall be present at the hearing. The hearing, however, shall not be adjourned if such notice or process fails to produce the attendance of the parents or guardian. If a complaint has not been filed by the time the initial hearing is held, the juvenile shall be immediately released from custody. If the juvenile is not represented by counsel at the initial hearing and if the court determines that the juvenile should be detained, a second detention hearing shall be held within two court days after the initial hearing at which the juvenile shall be represented by assigned or retained counsel or by the public defender as the circumstances require.

(b) Probable Cause Hearing. If the juvenile is detained following the initial detention hearing, the court shall conduct a probable cause hearing within two court days after the initial hearing. Where a second detention hearing is required by paragraph (a), it shall be held with the probable cause hearing. If the prosecutor has filed a motion seeking waiver of jurisdiction pursuant to Rule 5:22-2 or indicates an intention to file such a motion, or the court determines based on the circumstances that such a motion is likely, the court shall permit the parties to present evidence regarding the issues of age of the juvenile and other standards for referral which may be addressed at the time of the probable cause hearing. If the court determines that there is no probable cause to believe that the juvenile has committed the conduct alleged in the complaint, the juvenile shall be forthwith released. If probable cause is found, detention review hearings shall be conducted as provided in paragraph (c).

(c) Detention Review Hearing. If the court determines that the juvenile should continue to be detained, a detention review hearing shall be held within 14 court days after the prior detention hearing. If detention is again continued, review hearings shall be held thereafter at intervals not to exceed 21 court days. The juvenile shall be represented by counsel at all such hearings.

(d) Findings. Whenever the court places a juvenile in detention, it shall state the reasons therefor on the record, giving consideration to the following factors among others:

1. The nature and circumstances of the offense charged;
2. The age of the juvenile;
3. The juvenile’s ties to the community;
4. The juvenile’s record of prior adjudications, if any; and
5. The juvenile’s record of appearance or non-appearance at previous court proceedings.

(e) Credit for Time Served. A juvenile shall receive credit on the term of a custodial sentence for any time served in detention or court-ordered shelter care between apprehension and disposition.

Standard for Pretrial Detention in NJ

New Jersey has adopted a specific Court Rule, R. 5:21-5, which sets forth the standard to be applied by the juvenile court to determine whether pretrial detention is appropriate. This Rule provides as follows:

5:21-5. Standards for Detention

(a) Juveniles Over the Age of 11. The court shall only order pretrial detention of a juvenile over the age of 11 if it finds, pursuant to sub-paragraphs (1) and (2) hereof, either that detention is necessary to secure the presence of the juvenile at the next hearing or that the physical safety of persons or property of the community would be seriously threatened if a juvenile, charged with an offense as hereafter set forth, were not detained.

1. The necessity of detention to secure the presence of a juvenile at the next hearing may be demonstrated by the juvenile’s record of recent willful failure to appear at juvenile court proceedings or the juvenile’s unauthorized departure from a placement made by the court or the court intake service.
2. For purposes of this rule a juvenile may be detained to protect the physical safety of persons or property only if the juvenile is charged with an offense which, if committed by an adult, would constitute a crime. If the charge would constitute a repetitive disorderly persons offense, the juveniles shall be detained only if the judge determines that there is a likelihood that upon adjudication of delinquency a custodial disposition will be ordered.
3. When the criteria for detention are met and the juvenile is charged with an offense which, if committed by an adult, would constitute a disorderly persons or petty disorderly persons offense, the juvenile may be placed in detention temporarily. Police and court intake personnel shall make all reasonable efforts to locate a parent or guardian to accept custody of the juvenile prior to requesting or approving the juvenile’s placement in detention. If, after the initial detention hearing, continued detention is necessary, the juvenile shall not be detained in a secure facility but shall be transferred to a shelter or other non-secure placement.

(b) Juvenile Not Over the Age of 11. The court may order pretrial detention of a juvenile not over the age of 11 only if the juvenile is charged with an offense which, if committed by an adult, would constitute a crime of the first or second degree or arson and provided further that the juvenile otherwise meets either of the detention criteria of paragraph (a) of this rule.

In apply this Rule, the Juvenile Judge must also consult the criteria set forth under N.J.S.A. 2A:4A-34 for placing a juvenile in detention. This law precludes detention except where detention is necessary to secure future appearance on the charge or where the safety of the community would be seriously threatened if the juvenile were not detained and the charge is an indictable offense, aggravated assault, stalking, sexual contact, bias, intimidation, arson, or possession of a weapon. N.J.S.A. 2A:4A-34 also provides for temporary detention of juveniles charged with disorderly persons offenses until such time as a parent or guardian is located and accepts custody.

Detention Pending Resolution of the Charges

When a child is detained pending resolution of charges, the trial of the charges is to be held within 30 days of detention. Where the hearing has not taken place within this 30 day period, the Court shall set a date certain for the final hearing within 72 hours after receipt of a motion by the juvenile or his attorney for a hearing date.

If your child has been arrested, an attorney at our office is available to answer your questions and assist you. Our juvenile defense lawyers appear statewide including Ocean County, Union County, Middlesex County, Monmouth County, Somerset County, Mercer County, Burlington County, Essex County, Hudson County and Bergen County. One of our attorneys will make sure that an appropriate strategy is formulated to minimize detention of your child.