Edward R. Weinstein, Esq.

How Does Domestic Violence Affect A Pending Child Custody Case?

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.

EDDIEVIDEO-300x225

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.

A.S. and V.S. were separated parents of two children. They appeared in family court on October 31, 2016 to resolve issues of residential custody, legal custody, support, and parenting time. An interim order was entered, and the case was carried to December 14, 2016, pending receipt of additional information. Five days before the continued proceedings, A.S. filed a domestic violence against V.S., in which she claimed that during an argument about the children, he had slapped her in the face. She alleged that she believed that he would not stop harassing her. A temporary restraining order was granted, and hearing for a final restraining order was set for December 15, 2016. As such the previous December 14 hearing, was cancelled and adjourned pending the outcome of the final domestic violence hearing. At the hearing the Family Part heard testimony from both parties. A.S. alleged that V.S. slapped her in the face, and V.S. denied the allegation. Such a “he said vs. she said” situation is common in domestic violence cases, and requires the court to conduct a credibility determination.

Judge Jones explained that a “he said vs. she said” situation involves two parties, and while in any given case a victim may have been targeted by a violence, it is also possible that the alleged violence was fabricated or exaggerated to create a case of domestic violence where one does not exist. A party in a family court dispute may choose to fabricate such an allegation for numerous self-serving reasons, including getting revenge or payback, or trying to get leverage and a strategic legal advantage over the other party in litigation. Unfortunately, anything is possible in family court. Therefore, in such a situation the court must start the case with a blank slate, without any pre determinations concerning the credibility of either party, either for or against.

With that said, the party alleging domestic violence always has the burden of proof and persuasion to establish his or her case for the entry of a final restraining order. The evidentiary burden remains the same, regardless of whether there are eyewitnesses or video evidence, and there can be no inference or presumption of guilt against the party accused of domestic violence. As such, when the only available testimony is testimony of the parties involved, the party alleging the domestic violence has the burden of convincing the court that the violence actually occurred, through persuasive testimony. The court will decide which party’s version of events is more credible and accurate. Someone’s credibility may be hurt by their demeanor, if their statements are inconsistent, bias, or if the court finds that he or she is being untruthful.

Many times a domestic violence complaint is filed at the same time or close to the same time, as another family court issue that has already been, or is about to be filed. When this happens, many times the question arises if the party is alleging domestic violence as part of an agenda, and with the motivation to use the protections of a domestic violence order to get leverage and an advantage in other issues before the Family Part.

This issue was evaluated over twenty years ago in Murray v. Murray, where the New Jersey Appellate Division found that a wife had filed a domestic violence complaint on the eve of the divorce hearing, because her husband had called her unattractive and insulted her physical appearance. The appellate panel stated that in cases where a domestic complaint is filed around the same time as the commencement of another Family Part proceeding, the trial court should be mindful that it is possible that the domestic violence complaint may have been filed for an improper purpose of getting an advantage in the companion case, and should be wary of someone using such allegations to get favorable rulings on critical issues, like custody, support, or restricting the other party from the marital residence. Indeed, according to Murray, it is quite appropriate for the court to consider, among other factors, if there is a connections between the two filings, and if the domestic violence complaint was in any way filed for strategic purposes related to the second action. However, just because a domestic violence complaint and another Family Part action are filed around the same time does not mean that there is any legal presumption, or inference that the domestic violence complaint is not credible.

There is no automatic presumption or inference in such circumstances, because even though it may be possible that a party who filed for a restraining order might be doing so just to get leverage in a another Family Part case, it is just as plausible that when the litigants were disputing support, custody, or any other family law issue, the likelihood of domestic violence might increase. According to New Jersey Rule of Evidence 201(b), a Family Part court can take judicial notice that a contested Family Part action can be one of the most traumatic and stressful events in a person’s life. As a result, there are many people who, in the heat of the moment, may impulsively and inappropriately act in a violent way, as defined by New Jersey Statute 2C:25-19(a), the Prevention of Domestic Violence Act. As such, it is not uncommon for an act of domestic violence to occur on or about the same time as another litigation between parties. Judge Jones held that the court must conduct a balanced and fair fact-finding analysis, without any preliminary inferences for or against the legitimacy of the complaint.

Our law firm stands prepared to help you if you are facing a child custody dispute or a scenario involving domestic violence.