Domestic Violence and Custody
If you are charged with domestic violence your life can be seriously affected. You will have a record if someone does a background search. When the court finds that a person committed domestic violence, it made a finding that the person specifically engaged in a criminal activity of one or more of the following acts: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, and/or stalking. If a Final Restraining Order is entered against you, you may be disqualified for certain jobs because of your record. There is also a presumption in the domestic violence court that the Defendant should be given limited parenting time.
Many divorces become acrimonious and people will engage in acts of domestic violence, from threatening emails to harassment to actual physical violence. If a domestic violence Final Restraining Order is filed in a divorce case, it will often be an uphill battle if the defendant wants significant parenting rights. In order to change the parenting rights or schedule from what was set forth in the FRO, your lawyer will have to fight in divorce court for more parenting time. Mediation cannot occur between the parties because of the restraining order. Either negotiation between counsel or an evaluation may have to be ordered if the perpetrator of domestic violence wants more parenting time and the victim opposes.
Most divorces do not go to trial; it is extremely costly and burdensome. Judges in litigation and at trials have historically maintained a bias against the defendant in the FRO when it came to custody, although this is often not justified. The court, however, in the recent case R.K. v. F.K., 437 N.J. Super. 58 (App. Div. 2014) clarified that a decision in divorce court with regard to custody must follow the custody statute and analysis with regard to the following factors: 1) the parents’ willingness to agree, communicate and cooperate in matters relating to the child; 2) the parents’ willingness to accept custody and any history of unwillingness to allow parenting time not based on substantiated abuse; 3) the interaction and relationship of the child with its parents and siblings; 4) the history of domestic violence, if any; 5) the safety of child and the safety of either parent from physical abuse by the other parent; 6) the preference of the child when of sufficient age and capacity to reason so as to form an intelligent decision; 7) the needs of the child; 8) the stability of the home environment offered; 9) the quality and continuity of the child’s education; 10) the fitness of the parents; 11) the geographical proximity of the parents’ homes; 12) the extent and quality of the time spent with the child prior to or subsequent to the separation; 13) the parents’ employment responsibilities; 14) the age and number of the children.
As you can see, only one of the 14 factors (#4) that the court must consider in its analysis is the domestic violence factor. This in no way means that having a Final Restraining Order is a minor issue, particularly when addressing custody, but it clarifies that it is not “the whole story”. The truth is you should do everything you can to avoid a domestic violence situation. It is expensive, complicated, and has permanent ramifications. The court however has articulated in R.K. v. F.K. that custody is a complicated, layered issue which revolves around the best interest of the children. It is not a simple issue that can be decided just because of a Final Restraining Order. It is important that an individual receives proper representation for a restraining order and then again when it comes to the very important custody/parenting issues.
Tanya N. Helfand, Esq., a certified matrimonial attorney practicing for 23 years, handles Family Law in NY and NJ as well as Bankruptcy. The office also handles Municipal Court defense, Worker’s Compensation and Department of Child Protection and Permanency parental representation. The firm welcomes your questions and inquiries. Everything is confidential. This article is not legal advice. Please consult an attorney.