Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

Are New Jersey Child Custody Cases Handled Differently in a Divorce Action as Opposed to a Domestic Violence Hearing?

If child custody is being contested in a New Jersey divorce, a New Jersey Family Court will consider a set of statutory factors to help decide what type of custody should be granted to each parent. Pursuant to Section (C) of the New Jersey child custody statute, N.J.S.A. 9:2-4, the court shall consider but not be limited to an array of factors, including the history of domestic violence. While it is an important factor the courts look at, it is not necessarily the deciding factor. That might seem puzzling to some including New Jersey divorce lawyers, especially when looking at the New Jersey domestic violence statute.  Let’s explore. 

On the contrary from the custody statute, the New Jersey domestic violence statute includes the legal presumption that the abused parent should get custody of the children. This seems rational, even if the abuser has not abused the children; it is merely in their best interest to be placed in the custody of the non-abusive parent. If our state’s domestic violence statute has such a strong presumption of custody that is so difficult to rebut, why is it that the history of domestic violence is only one of many factors the court looks to in a pure child custody case? Let’s explore.

Until extremely recently, the courts in New Jersey had not addressed whether or not there was a convergence between the two statutes. However, the Appellate Division decided the case of R.K. v. F.K on July 28, 2014, which was the first reported case to address the statutes’ confluence. In the case, the parties were married in 2001. All was fine in their marriage until August 2008 when F.K. obtained a Final Restraining Order against R.K. She was granted the restraining order pursuant to New Jersey's Prevention of Domestic Violence Act, which presumed that she would take custody of their four children.

Three months after F.K. was given temporary custody due to the statute, the court amended its decision and awarded joint legal custody to the couple instead, with F.K.’s home being the children’s primary physical residence. Three years later, R.K. filed for a divorce. Seeking to obtain sole custody over his children, he submitted expert testimony discoursing that F.K. was emotionally unstable and therefore an unfit parent. Yet, at trial the court found no reason to believe that F.K. was an unfit parent; therefore, the children remained under her roof. The court stated that none of the circumstances had changed since F.K. was awarded physical custody of the children and also that New Jersey's Prevention of Domestic Violence Act’s presumption favored her, the non-abusive parent, to have custody of the kids.

Naturally, R.K. appealed, arguing that the court incorrectly applied the changed circumstances standard frequently referenced when seeking to have a court order modified. Furthermore, R.K. argued that the Prevention of Domestic Violence Act presumption to the custody determination should not have been applied. And the appellate division agreed with R.K.  The New Jersey appellate court held that the trial court erred in assuming that the New Jersey’s Prevention of Domestic Violence Act presumption still applied after the expert psychologist submitted a lengthy report detailing changed circumstances. The change in the mother’s attitude and behavior was significant enough that it was impacting the children’s lives. Although initially the domestic violence presumption of custody did favor her, the situation had changed, and the presumption no longer applied.

At the Law Offices of Edward R. Weinstein, we will continue to monitor this red-hot topic, as the R.K. case is only the first of many to come on the issue. For any questions related to either of the two statutes, please do not hesitate to contact my New Jersey divorce and family law firm. Thank you.