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

How May Domestic Violence Effect Child Custody In My New Jersey Divorce?

As a New Jersey Divorce Attorney, child custody disputes are all far too common.  Furthermore, as a New Jersey Divorce Lawyer I all too frequently handle cases involving domestic violence.  Today, I would like to address how domestic violence may effect child custody during a NJ divorce action.

When determining child custody in the state of New Jersey, the standard that the court abides by is the best interest of the child standard. This standard’s meaning is plain on its face—the child’s best interest is to be considered, pursuant to a list of factors designated by the court. N.J.S.A. 9:2-4(c) lists those factors.  The factors relevant to this discussion are as follows:


1. The parents' ability to agree, communicate and cooperate in matters relating to the child;

2. The history of domestic violence, if any;

3. The safety of the child and the safety of either parent from physical abuse by the other parent;

4. The stability of the home environment offered;

5. The fitness of the parents;

Of course, a Final Restraining Order is paramount.

In addition, it is especially important to look at the history of domestic violence, if any, and the safety of the child and the safety of either parent from physical abuse by the other parent. When looking at these factors more closely, the New Jersey courts suggest that the following factors be considered:

1.     Whether or not the domestic violence has an effect on, or was directed at, the child

2.     Whether the accused poses a danger to a child or parent

3.     The severity and frequency of the domestic violence

4.     Whether there is a pending criminal case

5.     Physical evidence of the abuse

The most recent New Jersey case that focuses on this issue is Kinsella v. Kinsella. (Kinsella v. Kinsella, 150 N.J. 276 (1997). In Kinsella, Mr. Kinsella was abusing Mrs. Kinsella. She reported that she had “lived in an attitude of constant fear and had contemplated suicide.” Id. Furthermore, she alleged that “her husband had threatened to kill her and had tried to convince her to kill herself on multiple occasions.” Id. Other instances of alleged abuse against the husband included “striking, dragging, choking, kicking and cutting her, throwing objects at her, and attempting to run her over with a car.” Id.

Aside from Mr. Kinsella abusing his wife, it was reported that he also had abused their two children. Mrs. Kinsella alleged that “even before their son was one year old, her husband had frequently struck him and that, throughout his residence in the home, he had continued to kick and punch the child.” Id She further alleged that “her husband had once sat on the couple's five-year-old daughter to make her stop crying.” Id.

While Mr. Kinsella admitted to some of the physical acts of domestic violence, he claimed that his wife had exaggerated on the gravity of the situation in order to, among other things, obtain sole custody of the children. When it came down to the court determining the custody of the children, the Supreme Court of New Jersey applied the best interest of the child standard factors. The court held that the children were unsafe living in a home with their father due to his abusive track record. Moreover, it held that such a history of domestic violence was critical in determining that Mrs. Kinsella should have sole custody.

At the Law Office of Edward R. Weinstein, our primary focus is always the best interest of children.  If you or a loved one find themselves in this serious predicament, please never hesitate to come to visit with me so we may discuss the situation and how my office may protect you and your children.