NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Domestic Violence, Prenuptial Agreements, Child Custody

At the time of a break-up of a relationship, clearly emotions are high, it is contentious and people often do or say things that they normally would not. Unfortunately, during this time period where many feel like they are on an emotional roller coaster, the tension escalates to the point where one party has filed a Complaint for Domestic Violence as a result of the actions and/or comments of the other party and the Court enters a Final Restraining Order. Once the emotional roller coaster ride stops, does the defendant have the ability to ask that the Restraining Order be dismissed? The answer is yes but the more important inquiry is whether or not such request will be granted. 

In New Jersey, either party to a Domestic Violence Restraining Order may request dismissal of the Restraining Order by way of Motion filed with the Court. The New Jersey Prevention of Domestic Violence Act states that “Upon good cause shown, any final restraining order may be dissolved or modified upon application to the Family Part…” N.J.S.A. 2C:25-29d. In other words, simply asking for a dismissal-- even if you are the plaintiff or the victim-- does not automatically warrant a dismissal of the Restraining Order. 

If the Defendant files the Motion to dismiss the Restraining Order, there are eleven factors for the Court to consider when determining whether or not “good cause” exists to dismiss a Restraining Order: the victim’s consent; current relationship of the parties; number of contempt convictions; use of drugs or alcohol; whether defendant is violent with others; whether the aggressor attends counseling; age and health of the aggressor; whether the victim is acting in “good faith” when opposing the dismissal; whether there are any other domestic violence restraining orders between the parties in other jurisdictions; and any other relevant considerations relevant to dismissal of the Restraining Order.

If the Plaintiff is the party making a request for dismissal, before any dismissal is entered, the Court must discern whether the plaintiff is seeking the dismissal voluntarily, without coercion or duress; if the plaintiff understands the cycle of violence that occurs in the domestic violence setting; and if the plaintiff understands the loss of protection if the Restraining Order is dismissed.

Notably, regardless of whether or not Plaintiff consents to, wants to have and does have communication with a defendant to a Restraining order, unless the Court has dismissed the Restraining Order, it remains in full force and effect.

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Can an act of domestic violence by one parent against the other constitute sufficient “changed circumstance” to warrant a Court’s re-examination of an existing custodial arrangement? New Jersey law requires that a party seeking to modify a custody arrangement first establish the existence of such “changed circumstance” that affect the welfare of the child involved. Only after proving this threshold burden will a Court engage in a “best interest” of the child analysis to determine a custody award. The best interest analysis is based on the 14 factors set forth in N.J.S.A. 9:2-4.

Affirming a trial court’s order awarding primary residential custody of the parties’ nine-year old daughter to the plaintiff father, the Appellate Division in Chen v. Chen recently concluded that the mother’s act of driving over the father’s foot and dragging him for a few feet as he held onto the car in the presence of the daughter constituted a sufficient “changed circumstance” to trigger a “best interest” analysis. The father had filed a complaint after the incident under the Prevention of Domestic Violence Act (“PDVA”), N.J.S.A. 2C:15 to -35, resulting in the issuance of a Temporary Restraining Order wherein custody of the child was temporarily transferred to the father. A Final Restraining Order was subsequently entered maintaining the custody arrangement pending a full custody evaluation and hearing that ultimately resulted in the father’s designation as the primary residential custodian. 

In its affirmance, the Appellate Division rejected for three reasons the mother’s argument that the act of domestic violence could not constitute changed circumstances because the child was not physically subjected to the violence. First, the Court generally surmised that, “It seems obvious to us that domestic violence committed in the presence of a minor inherently implicates the child’s health, safety and welfare.” Next, the Court relied on the terms of the PDVA, which presumes that “the best interests of the child are served by an award of custody to the non-abusive parent” when determining temporary custody following an act of violence. Third, it rationalized that, because N.J.S.A. 9:2-4 deems this an act of domestic violence is a “critical factor” in determining custody, it, by correlation, also suffices to establish changed circumstances.  

The Appellate Division also affirmed the trial court’s best interest analysis based on proof of the mother’s domestic violence; her use of a wooden spoon to punish the child; her inflexible adherence to the parenting schedule; her failure to timely inform the father that she had relocated to New Jersey; and the child’s improved developmental growth and resolution of behavioral problems that manifested themselves while she was with her mother. Notably, the Court also rejected the mother’s charge of cultural bias stemming from the trial court’s conclusion that the values instilled by the father would continue to aid in the child’s development in a “twenty-first century United States,” since the trial court’s analysis was deemed proper and objective under 9:2-4.

Parents should keep their hostilities towards each other in check, as the Appellate Divisions’ opinion suggests that any act of domestic violence towards the other in front of the child will likely fulfill the changed circumstances threshold should a party seek to modify a custody arrangement. Parties should also be careful to abide by the terms of the PSA regarding custody, as the trial court (although not addressed by the Appellate Division) noted that even the mother’s failure to notify the father of her relocation to New Jersey with the child pursuant to the terms of the PSA also constituted changed circumstances justifying a best interest analysis.

EDITOR'S NOTE:  People should not forget that upon the entry of a final restraining order, there is a legal presumption that the victim should get custody.  Like all presumptions, this is rebuttable.  This presumption does not extend to civil restraints (i.e. a Consent Order in the matrimonial matter that is similar to a restraining order but is not under the domestic violence docket and not punishable by criminal contempt if violated).  That said, if there are true custody issues and a domestic violence matter arises, one must think long and hard about whether to settle the matter and enter into civil restraints.  - Eric S. Solotoff

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