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

In New Jersey, May a Domestic Violence Abuser Obtain Temporary Custody of Their Children?

When a court grants custody to a parent, not only does it look to a set of statutory factors set forth by N.J.S.A. 9:2-4(c), but it also will consider the child’s best interests in the situation. Clearly, if the court reveals that one parent has a history of domestic violence, that will be taken into consideration as a safe living environment is vital for the child to be raised in. You would think that that seems like common sense, not to let someone with that sort of violent history have custody over his or her children. Yet, a Camden County trial court in one case, despite a parent’s domestic violence history, granted temporary custody of the children. Strange result? Surely the Appellate Division believed so, leading it to reverse the lower court’s decision in the case of J.D. v. M.A.D. As an experienced New Jersey divorce and family law attorney, I agree with the New Jersey Appellate Division’s decision as well.  Let’s explore.

In the case, the parties were married for nine years. Two children were born of the marriage. In 2005, the defendant father was diagnosed with a serious illness for which he began receiving treatment. The plaintiff mother had remained a stay-at-home mom for the majority of the marriage, but due to her husband’s illness returned to work to help support the family. In 2010 it was clear that the defendant was much better and that he had basically recovered from his illness. While he still couldn’t return to work, he took over the at-home chores including caring for the children.

In February of 2011, the defendant found out that the plaintiff was having an affair. The defendant had been snooping through her telephone and proceeded to confront her about the messages from the man. While confronting her, the children were in the room. The plaintiff was caught off guard as the defendant came straight toward her “pushed her against a wall in their bedroom and put his hands around her throat, demanding to be told the man’s name.” The one child, in utter shock, called 911. The police arrived at the house and advised the defendant to leave the home for a bit to cool off.

Meanwhile, the plaintiff left the house with the children to take them to a birthday party. Hours later, upon her return home, she found the dresser in her bedroom overturned and drawers empty, among other things. The defendant, while the plaintiff was gone, had taken all of her belongings (clothing, pictures, jewelry, etc.) and burned them in the backyard. After this was reported as well to the police, the defendant willingly left and was subject to an evaluation. However, he was soon released and returned home again.

Upon his return, the parties discussed their future together. The plaintiff apologized for the affair and wanted to work things out. The defendant said that he needed time to forgive her and asked her to leave. On February 21, 2011, the parties signed an agreement stating that plaintiff agreed to leave and let the children remain in the home with the defendant as the primary custodial parent. The plaintiff would visit with the children regularly. Before returning home, one month had elapsed. Then the parties began to live together more regularly as they made an attempt to reconcile.

A few months passed and another incident occurred. The plaintiff was in her laundry room one morning and the defendant entered and pushed her down to the floor. He proceeded to punch her three times with his fist, striking her in the upper arm. Every time the plaintiff attempted to get up, the defendant kept pushing her down. In August, another incident occurred in which the defendant returned home drunk, pushed the plaintiff into the closet and proceeded to put his hands around her throat. After releasing her, the defendant kept calling the plaintiff a whore, all of which their one child heard and began crying. A few weeks later, another incident occurred, which finally prompted the plaintiff to seek a temporary restraining order.

When the facts were presented to the trial court, the trial court awarded temporary custody to the defendant. He had become the primary caretaker for the kids since his illness. Additionally, the court found that the statutory presumption of N.J.S.A. 2C: 25-29(b)(11), that the best interests of the child are served by awarding custody to the non-abusive parent, had been rebutted. The plaintiff appealed, stunned by the court’s decision. On appeal, the Appellate Division reversed the findings of the lower court. The children’s well-being and best interests were being jeopardized by granting temporary custody to the defendant given the numerous accounts of violence, especially that the children had witnessed.

Domestic violence is a serious issue that unfortunately frequently arises. If you believe you have witnessed such violence or are a victim, it is imperative to come forth. Please never hesitate to contact my office today to learn more. Thank you.