Divorce FAQ's

Domestic Violence and Child Custody Implications

1. Can a DV charge have an impact on a custody case?

Absolutely yes. To be blunt if a person is convicted of committing an act of domestic violence then this event may nuke his or her chances to obtain custody of the child(ren). The most important provision of the domestic violence law is in N.J.S.A. 2C:25:29(b)(11), which authorizes the court to award temporary custody of a minor child(ren). This provision also declares that the court shall presume that the best interests of the child are served by an award of custody to the non-abusive parent.

In summary, there is a strong interplay between domestic violence and custody decisions. The spouse who is awarded temporary custody in any domestic violence action will always remind the court, in any eventual divorce case that he or she was a victim of domestic violence. Moreover, the victim will also emphasize to the court that temporary custody was awarded to him or her, and that a year or two has passed since the entry of the DV order. It is important to emphasize that a defendant in a domestic violence case can have an impossible burden to overcome in any eventual divorce trial with custody issues.

2. Can you provide me some example cases wherein a parent lost custody because she was convicted of domestic violence?

A. Chen v. Mei-In Chen, 2008 WL 646 (App. Div. 2008). Here, Ms. Chen committed an act of domestic violence when she ran over her husband’s foot. Ms. Chen was upset because she saw her husband hugging their daughter to say goodbye to her. In a fit of rage, Ms. Chen ran over Mr. Chen’s foot and he was dragged about five feet as he banged on the window for his wife to stop the car. The child was age eight, and she cried as she witnessed this traumatic even.

Thereafter, Mr. Chen filed a complaint for a restraining order against his wife. He obtained a TRO. In the final restraining order against his wife, as a result of Mrs. Chen’s violence behavior, custody of the child was transferred to Mr. Chen. At the DV hearing custody was only temporarily transferred to Mr. Chen. However, as the case progressed the custody of the minor daughter was permanently transferred to him. Here, the custody of the daughter was transferred to the husband based solely on the domestic violence incident. It is important to emphasize that hundreds of child custody decisions are also based on acts of domestic violence.

B. Mann v. Mann, 270 N.J. Super. 269 (App. Div. 1993). Here, a mother lost custody of her three children of the ages of 11,12, and 13 to her husband. A Mercer County judge found her guilty of criminal mischief and harassment under the domestic violence law. The case was then appealed. However, the Appellate Division still held that the family court judges have the legal authority to issue custody orders following instances of domestic violence.

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