The lawyers at our law firm here in East Brunswick, New Jersey, handle many child custody disputes. Needless to say, emotions run very high which may result in one parent having to obtain a restraining order against the other while the child custody case is still ongoing. The attorneys at our New Jersey based law firm have had many cases wherein the temporary restraining order was absolutely necessary to protect the victim. However and regretfully, we have also had cases in which a questionable temporary restraining order is obtained by one parent with the underhanded goal of hoping to gain an “upper hand” in the child custody dispute. This blog analyzes how a judge of the Family Part of the Superior Court of New Jersey decides if the restraining order is “credible” or was obtained for the sole purpose of gaining an unfair advantage in the pending child custody case.
In A.S. v. V.S., the Honorable Judge Jones of the Superior Court of New Jersey, Family Part of Ocean County, addressed the problem of evidentiary issues in a domestic violence case, when a complaint is simultaneously filed in a Family Part court relating to issues of parenting time, child custody, support, divorce, separation, or other related issues. Judge Jones held that under the principle enumerated in Murray v. Murray, when a complaint alleging domestic violence is filed on or near the same time as another family court complaint, the may can appropriately consider the proximity of the filing as relevant to issues of motivation, credibility, bias, and the possibility that the domestic violence complaint was filed in order to gain a legal advantage, in regards to rulings about support, custody or other similar issues. However, in terms of evidence, Murray does not automatically create a presumption that a domestic violence complaint that is filed at the same time of companion family court litigation is not legitimate. Even though it is possible that one party may have filed a domestic violence complaint in an effort to acquire a legal advantage in another litigation, it is just as possible that as a result of family court litigation, the other party committed domestic violence. Furthermore, because of the specific nature of domestic violence, a complaint alleging domestic violence can be substantiated by testimonial evidence by one of the parties, without the need for video proof, or eyewitnesses.