How Domestic Violence Affects Child Custody in New Jersey

Domestic violence—whether it's just between parents or whether a child is also abused—destroys families from within. It fractures the connection between parents and leaves their children with psychological scars. It's such a serious matter that the courts frequently consider the role of domestic violence in a family when they make decisions about child custody.

This article will explain what domestic violence is and how it affects child custody. If you have any questions after you read this article, consult with a local family law attorney for advice.

Domestic Violence 101

Victims of domestic abuse frequently believe they haven't really been abused unless they were physically injured. People who don't believe they're victims tend not to seek out the help they need. For this reason, it's crucial to understand how New Jersey law defines domestic violence.

New Jersey's Code of Criminal Justice defines "domestic violence" as behavior that includes one or more of the following acts:

• homicide
• assault
• terroristic threats
• kidnapping
• criminal restraint
• false imprisonment
• sexual assault
• criminal sexual contact
• lewdness
• burglary
• criminal trespass
• harassment, and
• stalking.

A victim of domestic violence is defined as any one of the following people:

• people who are dating when they're subjected to abuse
• people who have a child together when they're abused
• pregnant women who are abused, and
• any person who is age 18 or older, or who is an emancipated minor (a person under the age of 18 who has married, served in the military, had a child, been pregnant, or been declared legally independent by a court or administrative agency) who has been subjected to any of the above acts of domestic abuse.

If you're a victim of domestic violence, you can go to court and ask for a domestic violence restraining order. See this page for more information from the New Jersey Courts.

Community Resources

New Jersey has many organizations whose mission is to help victims of domestic violence. One of the best known is the New Jersey Coalition for Battered Women, which offers education and training, referrals to lawyers, safety plans, and a helpful guide to all the services offered to domestic violence victims in each of New Jersey's counties.

Finally, victims can call the New Jersey Domestic Violence Hotline (1-800-572-7233) or the National Domestic Violence Hotline (1-800-799-7233). Both hotlines are open 24 hours a day, seven days a week.

Domestic Abuse and Child Custody

In any custody case, the judge can make an award of custody that's joint (shared) or sole. There are two types of custody: legal and physical. Legal custody is a parent's right to help make major decisions about a child's life, like where the child should go to school or whether the child should undergo medical treatment. Physical custody is where the child lives and who provides basic care like bathing and feeding.

Courts are required to consider a long list of factors when deciding what kind of custody award is in a child's best interest. The factors include:

• the parents' ability to agree, communicate and cooperate in matters pertaining to their child
• the parents' willingness to accept custody and any history of unwillingness to allow the other parent to have parenting time, unless there is a substantiated history of abuse
• the interaction and relationship of the child with parents and siblings
• the history of domestic violence, if any
• the safety of the child and the safety of either parent from physical abuse by the other parent
• the preference of the child, but only when the child is old enough to reach a reasonable decision
• the needs of the child
• the stability of each parent's home environment
• the extent and quality of the time each parent spent with the child before and after the parents separated
• the quality and continuity of the child's education
• the fitness of the parents
• the geographical proximity of the parents' homes
• the parents' employment responsibilities, and
• the age and number of the children.

Therefore, a judge must consider a history of domestic abuse when deciding which parent gets custody. (For more general information about how courts make custody decisions, see Child Custody in New Jersey: The Best Interests of the Child, by Susan Bishop.)

Impact on Visitation

Judges must grant reasonable visitation rights to parents unless visitation wouldn't be in the child's best interests. It's not in a child's best interests to be exposed to domestic violence, so the court can protect the child by, for example, ordering supervised visitation or banning overnight visits. The court can also grant visitation with conditions (like supervision by a third party) or may suspend or deny visitation entirely until the abusive parent has completed counseling or parenting classes and can be trusted again.

Other Proceedings

If a victim pursues a domestic violence restraining order, evidence of domestic violence can be used as the basis for a temporary award of custody to the victim until a full custody case can be scheduled. If the court becomes concerned about a child's safety at any time during a custody case, the judge can take whatever actions it deems appropriate to protect the child until an investigation can be completed.

In cases where abuse is extreme, it is possible for a parent's rights to be terminated. This means that the abusive parent loses all rights to both the physical and legal custody of a child. This only happens when a parent has neglected or treated a child with cruelty. Parents rarely lose all rights to a child, but when they do it's permanent and the rights can never be regained.

Judges can make a child victim a ward of the court if a public or private agency or person files a complaint. Finally, courts can appoint a guardian to watch over an abused child.