May A Final Restraining Order Hurt My Child Custody Case In New Jersey?

May A Final Restraining Order Hurt My Child Custody Case In New Jersey?

Yes. Lawyers who only handle family law and domestic violence cases truly embrace that a judge of the Family Part of the Superior Court of New Jersey is more likely to award residential custody to the victim as opposed to the defendant who was found to have committed acts of domestic violence following a restraining order hearing. This is because family law attorneys, child custody experts and judges will assume that it is in the best interests of the children to be awarded to the parent who is not abusive. In fact, just as in the following case, this can occur even if the abuser (in this case the husband/father) was the primary care giver of the child during the course of the marriage.

In H.C.F. v. J.T.B., the parties were married in 2008 after having known each other since high school. The parties had one child born of the marriage in 2011. The parties lived together in a three-bedroom house in Chatham, New Jersey. Both parties’ names were on the deed and mortgage even though the wife paid the mortgage. The wife worked full-time and held a degree from Georgetown University in finance and a Masters of Business Administration from UC Davis. The husband was primarily a stay-at-home dad and worked part-time at the YMCA.

The wife filed a complaint against the husband under the Prevention Against Domestic Violence Act of 1991 (“PDVA”) on June 24, 2015. The wife alleged that after an argument the husband punched a door in the home so forcefully that the door came off its hinges. The wife also alleged in the complaint that the husband kept a gun in the house and told the wife in a text message in February 2015 that he would use the gun to commit suicide and end the wife’s suffering. An evidentiary hearing was conducted by the Superior Court of New Jersey Family Part on July 1, 2015. At the hearing, the court heard testimony from both parties regarding the allegations in the complaint.

The wife testified that the parties’ marriage had been rocky for over two-and-a-half years. Specifically, the wife stated that she and the husband had been sleeping in separate bedroom s in the house for over two years. The wife also testified to the incident on June 24, 2015. She stated that she observed that her neck was red and swollen that morning and she asked the husband to take a look at it. According to the wife, the husband did not notice anything and an argument followed. At the end of the argument, the husband became so angry that he punched the wife’s big, wood bedroom door causing the door to crack and fall off its hinges. The wife stated that the husband was very mad and that she was afraid, especially since the parties’ daughter was in the room. She also said that her daughter asked the husband why he had a “boo-boo on his hand,” which made the husband to leave the room and go downstairs. The husband then asked the wife to come downstairs, which the wife cautiously agreed to. The wife stated that she feared that the husband had his gun at that point, but when she went downstairs, the parties simply discussed their dying marriage. The wife then took the parties’ daughter with her to the doctor to have her neck checked and dropped the daughter off at home before driving to the police station to file for a temporary restraining order (“TRO”). The wife told the police that she was afraid every night that her husband was going to kill her, especially since she knew the gun was in the house but that the husband would not tell her where the gun was located.

The wife also testified to a text message she received from the husband in February 2015 where the husband threatened to kill himself with the gun. According to the wife, the parties got into an argument about the husband’s lack of compassion before he sent the text implying suicide. At that time, the wife contacted the parties’ marriage counselor and met with a divorce lawyer a few weeks later. The wife testified that she knew the marriage was failing and that she was afraid for her safety and her daughter’s safety every day.

The husband also testified about the wife’s allegations at the hearing. The husband stated that the door did not fall off the hinges when he punched it, but that he took the door off and placed it down when he saw it was loose. He also testified that the parties’ conversation was short and calm, but admitted that his tone of voice could have appeared threatening. He stated that the wife had never mentioned being afraid of him before and that his text implying suicide in February was simply a joke. The husband also testified that he told the wife that he moved the gun to the basement and that, although it was loaded, the gun’s safety mechanism was on, and that the parties had gun training in the past.

The judge entered an oral opinion following the hearing. The judge found that entering a final restraining order (“FRO”) against the husband was appropriate. The judge found the wife’s testimony to be credible but not the husband’s testimony. The judge applied the two-prong test of Silver v. Silver, which states that a predicate act has occurred, as defined by N.J.S.A.2C:25-19(a), and that granting a FRO is necessary to protect the victim from further harm. The judge found that both prongs had been satisfied. The judge stated that the first prong had been satisfied because the husband committed the acts of criminal mischief and harassment by punching the wife’s bedroom door. The judge noted that although both parties owned the house, criminal mischief still occurred because each party had an interest in the house and owning the house did not give the husband the right to damage property. The judge also found that the husband harassed the wife by punching the door because he intended to alarm her, which is a factor for harassment under the law. The second prong was also satisfied because the judge found that there is real potential that the husband could harm the wife in the future, especially since there is a gun in the house. The judge also granted the wife possession of the home and temporary custody of the parties’ daughter. However, the judge granted the husband visitation with the child at the discretion of the wife.

On appeal, the husband argued that there was insufficient evidence to find a violation under the PDVA. He also argued that the court was wrong to give the wife temporary custody of the parties’ daughter since he had always been the daughter’s primary caregiver. The New Jersey Appellate Division stated that it is not to disturb the factual findings of the lower court unless the evidence is so unreliable or unbelievable that the court’s decision would be unjust. The Appellate Division also noted that it gives special regard to the lower court since the lower court judges are experts in family matters. The court then stated that domestic violence is the occurrence of one or more predicate acts against a protected person, which includes someone who is eighteen years or older and is the subject of abuse by a spouse. The Appellate Division also stated that criminal mischief and harassment are predicate acts under the law and that a FRO should be granted if the two-prong test found in Silver is satisfied.

The Appellate Division affirmed the decision of the lower court and agreed with its holding. The court found that there was enough credible and reliable evidence to find that domestic violence, specifically criminal mischief and harassment, had occurred and that a FRO was necessary to protect the wife. The court reasoned that the husband’s claims that his actions were small arguments and not domestic violence were unfounded. The Appellate Division also found that it was appropriate to award temporary custody to the wife. The court reasoned that a judge has the authority to award custody when domestic violence has occurred if it is in the best interests of the child, and that the PDVA presumes that a child’s best interests are with the non-abusive parent. The Appellate Division also stated that parenting time should be given as long as the child will be safe and protected. The Appellate Division held that the lower court followed the standards under the PDVA, and that granting temporary custody to the wife and potential parenting time to the father was proper. Lastly, the court found that the fact that the husband was the primary caregiver is irrelevant since there is no presumption in the PDVA that being the primary caregiver is in the child’s best interests, especially when the child observed the domestic violence.

Ultimately, the Appellate Division agreed with the lower court’s decision to grant the wife a FRO and affirmed the lower court’s decision. If you or a loved one finds themselves in a similar situation, the attorneys at our law firm stand prepared to protect you and your children.


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