In the domestic violence statute, there is a presumption that the abused should get custody.  In the custody statute, the prior history of domestic violence is simply one of the many factors that a court must consider.  There really has not been a reported case that addresses the confluence of these two statutes until July 28, 2014, when the Appellate Division decided R.K. v. F.K.

In that case, the mother obtained a Final Restraining Order (FRO) against the father in 2008 and was awarded custody subject to the father’s parenting time.  In 2010, a plenary hearing was held in the domestic violence action on the father’s application to change custody, which was ultimately denied.

In 2011, the father filed a complaint for divorce and hired a custody expert who opined: (1) “that Mother had “very significant psychological problems,” which jeopardized her “emotional stability as a parent,” were “likely to interfere with appropriate parental communication with” Father, were “likely to interfere with her parenting,” and could have “a very negative effect on her children.””; 2) “that “[t]he current situation does not appear to be in the best interests of the children as a long-term plan.””;  3) that it was “inadvisable for Mother to continue home-schooling the children and 4) also recommended that Father and Mother split residential parenting responsibilities evenly.

After a seven-day trial, the court denied relief because it found no substantial change of circumstance, and because it relied on the presumption of custody in N.J.S.A. 2C:25-29(b)(11) of the Prevention of Domestic Violence Act of 1991 (DV Act), N.J.S.A. 2C:25-17 to -33.

The Appellate Division vacated the decision, finding that the trial court “misapprehended the roles of both the change of circumstances requirement and the presumption.”

The Appellate Division noted that while the trial court applied a changed circumstances analyis, “…at a trial to determine custody, “the ultimate judgment is squarely dependent on what is in the child’s best interests.” Baures v. Lewis, 167 N.J. 91, 115 (2001).”  The Appellate Division noted that the two step process relative to change of circumstances (i.e. the threshhold showing of a changed circumstances to be entitled to discovery and a plenary hearing) does apply to custody cases.  That said, one a movant makes that preliminary showing, “…  the second-step hearing or trial is decided using “the same standard that applies at the time of [an] original judgment of divorce.””

The Appellate Division noted that based upon the expert’s report which established a change of circumstances, an evidentiary hearing was warranted; i.e. the trial court correctly went to step two of the process making the finding of a lack of showing of a change circumstance a contradictory finding.  Put succinctly, the Appellate Division held:

Thus, the court was required to determine custody at that trial based solely on the best interests of the children. However, in its decision the court mistakenly relied on the lack of a “substantial change in circumstances.” The change of circumstances standard serves to determine whether a trial should be held, not to determine the result of that trial. (Emphasis added)

The Appellate Division went on to hold that, “The trial court also erred by relying in this matrimonial proceeding on the presumption used in domestic violence cases.”  The court noted that it is proper and within the statute to award temporary custody at an FRO hearing.  The court noted the rationale for this:

This presumption plays an important role in the initial DV proceedings, which must be conducted expeditiously, and in which custody is only one of many issues. See N.J.S.A. 2C:25-29(b). Further, this presumption reflects the DV Act’s finding “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.'”

In this case, the DV court awarded Mother temporary custody of the and the trial court assumed that the presumption still governed.  It did not because a different statutory scheme applies to custody determinations in divorce trials which are governed by N.J.S.A. 9:2-4, which addresses domestic violence as one of several factors requiring consideration.  The court further noted:

Allowing our family courts to weigh the seriousness of the history of domestic violence against the other N.J.S.A. 9:2-4 factors, rather than binding them with a mechanical presumption, better enables them to consider the best interests of the child in determining the vital issue of child custody in divorce, using their “special expertise in the field of domestic relations.” Cesare, supra, 154 N.J. at 412. In so doing, the court must consider “the safety of the child and the safety of either parent from physical abuse by the other parent.” N.J.S.A. 9:2-4.

The take away here is that if the court thought that there was no change of circumstances, then it shouldn’t have had a trial (though this too may have been reversed based upon the expert’s report – but I think it would be harder to show an abuse of discretion than an error in the law – which is what this reversal was based upon.)  Once it did, it had to apply the custody statute.  Since more than two years went by, the parties were allowed to  supplement the record to bring the court up to date.  That said, the father lost more than two years here that he can never get back – further showing the inefficiency of the system.


Eric SolotoffEric 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 is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or