Domestic Violence Custody

As recent issues of domestic violence remain in the news cycle it is important to analyze how the issue of domestic violence has been analyzed and decided in the New Jersey court system and how it relates to custody agreements in cases of divorce. In the case of R.K. v F.K., decided on July 28th, 2014, the Superior Court of New Jersey’s Appellate Division ruled on the issue of child custody pursuant to the multiple factors of N.J.S.A. 9:2-4 which relates to custody agreements in the best interest of a child.

In R.K. v F.K., R.K. (Father) and F.K. (Mother) were married in 2001 and had four children together. Prior to the Father’s filing for divorce in 2011, the Mother, in 2008, obtained a final restraining order (F.R.O.) under the Prevention of Domestic Violence Act in Family Court against her husband, the Father, alleging an act of harassment. Due to the F.R.O. against her husband, Mother was given temporary custody of her four children and Father, ordered to undergo anger management counseling, was limited to parenting time on Wednesdays, Saturdays and Sundays. He was also allowed e-mail communication with the children.

In November of 2008, the F.R.O. was amended to give Father and Mother joint custody of the children. The Court had amended the F.R.O. a previous time limiting the Father’s parenting time to alternate weekends from Friday evening until Sunday evening, Wednesdays from school’s end until 8pm, and holidays. The Family Court denied a subsequent application by Father to change custody in July of 2010. Father proceeded to file for divorce in 2011.

Prior to the divorce trial, Father retained an expert psychologist to interview him, the Mother and the four children. The psychologist found that Mother had “very significant psychological problems,” which jeopardized her “emotional stability as a parent,” and were “likely to interfere with appropriate parental communication, likely to interfere with her parenting” and could have “a very negative effect on her children.” R.K. v F.K., page 3 1. The trial court then held a seven- day divorce trial focused on child custody and schooling and held that the Mother was the parent of primary residence and continued the existing custody schedule. It was then that the Father filed his now successful appeal.

The Superior Court, Appellate Division, applied the test prevalent in Lepis v Lepis 2 where the New Jersey Supreme Court outlined a two-step process, with the first step being that the movant “must meet the threshold standard of changed circumstances to be entitled to discovery and an evidentiary hearing or trial” and, once the movant makes that showing, the second step is a hearing or trial using “the same standard that applies at the time of an original judgment of divorce. 3” The Appellate Court found that the trial court was correct in ordering a new custody trial due to the expert psychologist’s report, but found that the trial court erred in relying on the “change in circumstances” standard in determining custody, while not using the correct best-interests-of-the-child standard under N.J.S.A. 9:2-4, which includes factors for the court to consider such as:

the parents ability to agree, communicate and cooperate in matters relating to the child; the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; the interaction and relationship of the child with its parents and siblings; the history of domestic violence, if any; the safety of the child and the safety of either parent from physical abuse by the other parent; the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; the needs of the child; the stability of the home environment offered; the quality and continuity of the child’s education; the fitness of the parents; the geographical proximity of the parents’ homes; the extent and quality of the time spent with the child prior to or subsequent from the separation; the parents employment responsibilities; and the age and number of children 4.

The Appellate Court also found that the trial court put too much emphasis on the domestic violence factor found in N.J.S.A. 9:2-4, rather than treating it correctly as one of the many factors to be considered in determining a child’s best interest. The Appellate Court thereby vacated the trial court decision and remanded the case for reconsideration.

This case illustrates that in many areas of family law, New Jersey courts will conduct a thoughtful analysis and consider all applicable factors to reach a fair result and when children are involved, the best interest of the child that must always be considered.