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NJ Family Legal Blog Pertinent Information As It Relates To New Jersey Family Laws

Perpetrator of Domestic Violence Cannot have the victim removed and get temporary custody of the kids, can he?

Posted in Custody, Domestic Violence, Visitation/Parenting Time

If I were to tell you that the victim of domestic violence was put out of the marital home and the abuser was granted temporary custody of the kids, you would say I was crazy.  The Appellate Division would agree and in reported (precedential) decision released on October 19, 2012 in the case of J.D. v. M.A.D.(ironically), reversed such a holding by a Camden County trial court. 

In this case, the defendant’s discovery of the victim’s infidelity lead to an act of domestic violence.  The victim, however, wanted to remain in and work on the marriage.  The defendant wanted "space" and somehow convinced the victim to leave the home and sign a document giving him primary custody of the children.  The parties later reconciled and the victim returned to the house.  However, unable to control his anger over her affair, a number of additional acts of domestic violence occur ed, culminating with the entry of a TRO against the defendant.  At the Final Restraining Order hearing, the judge then entertained argument "as to who should have possession of the marital home and as to who should have
temporary custody of the children."  The trial judge decided that it should be the defendant, finding that the anger only occur ed when the parties were together and as such because the defendant had been the primary caretaker, he was awarded temporary custody and the victim was excluded from the marital home. 

The victim appealed and the Appellate Division reversed, holding:

The trial court’s findings, set forth in the beginning of this opinion regarding the events over the course of the seven months following defendant’s discovery of his wife’s extramarital affair, are supported by substantial credible evidence in the record and we do not disturb them. The facts as found, however, do not overcome the presumption embodied in N.J.S.A. 2C:25-29b(11), governing the court’s award of temporary custody
in a proceeding under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, "that the best interests of the child are served by an award of custody to the non-abusive parent." Moreover, these facts cannot support an order granting exclusive possession of the marital home to the party the court has found to have perpetrated the abuse.

The court then noted the reason for the domestic violence statute and the societal problem of domestic violence, noting:

The Legislature enacted the PDVA in response to the serious societal problem of domestic violence, which persists "as a grave threat to the family, particularly to women and children." State v. Chenique-Puey, 145 N.J. 334, 340 (1996). In crafting the law, the Legislature made clear its intention "’to assure the victims of domestic violence the maximum protection from abuse the law can provide.’" Cesare, supra, 154 N.J. at 399.
(quoting N.J.S.A. 2C:25-18). Our Supreme Court has likewise made clear its belief "that there is no such thing as an act of domestic violence that is not serious." Brennan v. Orban, 145 N.J. 282, 298 (1996).

In enacting the statute, the Legislature determined that there exists "a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence." N.J.S.A. 2C:25-18. This legislative declaration guides our interpretation of the statute generally, and specifically limits our understanding of the statute’s presumption that temporary custody is to be awarded to the non-abusive parent. (Emphasis added).

The Appellate Division held that the trial court’s determination about the defendant’s anger was incorrect, and in fact, that many of the incidents happened in front of the children.  The court noted:

We do not doubt that the trial judge correctly found that "defendant’s anger issues are anger issues about one thing only," that being his wife’s infidelity. But we think the judge
erred and misperceived the nature and effect of domestic violence in a family when he apparently determined that the level of anger defendant harbored for his wife was isolated and thus did not affect the couple’s children. Defendant’s anger over the weeks and months following the disclosure, when he burned her clothes and other possessions, did not subside.

Indeed, just the opposite occurred. His attacks on his wife became more frequent and escalated in intensity. The court also clearly credited the testimony that defendant had spoken to the children about the temporary restraining order and that the children, by their comments, displayed an inappropriate awareness of the problems between their parents. Defendant’s anger was clearly a force beyond his mastery or control. These facts found by the trial judge, and supported by substantial credible evidence in the record, make clear that the statutory presumption, grounded in the Legislature’s judgment that
children exposed to domestic violence are detrimentally affected by the experience, was not rebutted here and that the award of custody to defendant was error.

The Appellate Division then found that there was no statutory authority to remove the victim from the marital home where there was no impediment to her remaining there.

Finally, the court consolidated the domestic violence matter with the pending divorce and instructed the trial court to review the temporary custody arrangements in light of this decision.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild’s Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.