Many people in the midst of a divorce or imminent divorce proceeding find themselves involved in a situation involving domestic violence with their spouse. If you are granted a restraining order in New Jersey, you may wonder how that might effect the issue of custody in your divorce. Or, if you are the defendant in a domestic violence case that now has a restraining order entered against you, you may wonder how this may affect the ultimate issue of custody of your minor children.
Unlike issues of support or equitable distribution involved in a typical New Jersey divorce case, the issue of custody of one’s children in many instances can prove to be the most important and difficult to resolve. The existence of a final restraining order raises other concerns that can impact the issue of custody of your minor children.
In New Jersey, a trial court determines the issue of custody of minor children based upon a standard known as “the best interest of the child”. To many, this can be a very illusive standard. There is much case law in New Jersey that attempts to define this standard.
Once that determination as to the custody has been made by a court, or by consent of the parties if they can agree, it may still be changed in the future. Certain factors must be met in order to succeed in changing custody. Generally speaking, if the other parent voluntarily consents to the change, it will in most instances, be permitted by the court. If the other parent does not agree to the proposed change in custody, an application (referred to as a “motion”) must be filed to commence the process in the family court in New Jersey.
An application to modify custody requires a two-step process. The first step requires the moving party to show a “change of circumstances” as a threshold to allow discovery and an evidentiary hearing or trial. The second step is the hearing or trial itself in which the court will apply the same standard that would have applied at the time of the original custody determination. The paramount consideration in all child custody cases is to determine “what is in the best interest of the child?. ”
However, the issues to be considered by the court can be affected where a situation involving domestic violence between the parents intervenes and a final restraining order is entered.
While the domestic violence statute of New Jersey presumes that the best interest of the child is served when custody is granted to the non-abusive parent, that award is only a temporary one with regard to the issue of custody.
Domestic violence proceedings are conducted expeditiously and those hearings have custody as only one of many issues which the court must address on this expedited basis, usually lacking sufficient details and background to make a long term, fully informed decision as to custody. In a divorce trial (as compared with the expedited domestic violence hearing), the presumption may no longer apply as the presumption weakens as time passes without any conduct which is seen as jeopardizing the non-abusive spouse or the child.
The New Jersey Appellate Division on July 28, 2014, approved for publication its’ recent decision in the case of R.K. vs. F.K. This case was originally decided by a family court judge in the Middlesex County Superior Court, Family Part. In this instance, given the specific facts of that case, the Appellate Division vacated and remanded the matter back to the trial court for the determination as to whether the mother or father should be designated as the parent of primary residence. The Prevention of Domestic Violence Act, NJSA2C:25-29 (B)(11) presumes that the custody of the unemancipated children should be with the non-abusive parents. However, a completely different statutory scheme governs custody decisions generally , NJSA 9:2-4.
The Appellate Division addressed this situation in R.K.vs. F.K. stating the following: “While the history of domestic violence is a factor under the statutory considerations at the time of divorce, it is not the same as at the time of the issuance of a final restraining order in domestic violence. New Jersey courts have held that “The trial court must remain mindful of the need for the continued protection of domestic violence victims when crafting orders, particularly those involving parenting time.” The New Jersey legislature has determined that “The child’s “best interest” is fostered when both parents are involved with the child, assuring (the child) of frequent and continuant contact with both parties. The court must strike this difficult balance, always remembering the benchmark of what is in the best interest of the child. Therefore, in determining custody during a divorce hearing, the history of domestic violence is one consideration in determining what’s in the best interest of the child. It is not a presumption that predetermines this most important and key issue.
Custody is perhaps the most important aspect of a divorce case. An intervening domestic violence case and resulting restraining order can add levels of complexity to the issue of custody. It is important to know your rights and the law if you find yourself involved in such a situation. To speak with an experienced family law attorney in New Jersey that is knowledgeable about the law pertaining to custody of your minor children, and domestic violence, please contact the law firm of Goldstein Law Group.