R.K. v. F.K., Appellative Division, Published Decision, July 28, 2014: In this Appellate Division decision, which was approved for publication, the father appealed from the Judgment of Divorce entered by the trial court claiming an error in utilizing the change in circumstances standard in determining custody and for applying the presumption with regard to custody under the Domestic Violence Act. The Appellate Division agreed with the appellant, vacating the trial court's decision and remanding the matter. First, the Appellate Court noted that the trial court had erred in relying upon the failure on the part of the father to prove a chance in circumstances as the basis for adhering to the custody determination made at the time the FRO was entered. As the Appellate Court explained, a modification as to custody requires a two-step inquiry, wherein the first step is making a prima facie showing of changed circumstances and, upon meeting this burden, the second step is engaging in the appropriate best interests' analysis. As such, once a prima facie showing of changed circumstances is made, the change of circumstances inquiry is inapplicable, as the "change of circumstances standard serves to determine whether a trial should be held, not to determine the result of that trial."
In addition, when making the best interests' determination, the trial court erred in applying the DV Act's presumption "that the best interests of the child are served by an award of custody to the non-abusive parent." N.J.S.A. 2C:25-29(b)(11), which was relevant as the initial custody determination during the pendency of the divorce proceedings was made after the mother obtained a Final Restraining Order against the father. In determining that the presumption should not have applied, the Court noted that the DV Act applies the presumption only in "proceedings in which complaints for restraining orders have been filed." N.J.S.A. 2C:25-29(b) and that "the presumption weakens as time passes without any conduct which can be said to jeopardize the 'non-abusive spouse' or the child." Grover v. Terlaje, 379 N.J. Super. 400, 407 (App. Div. 2005), which was relevant in the present case since the FRO was granted in 2008 and the divorce was granted in 2012.
More importantly, a different statutory scheme applies to custody determinations in divorce trials, as N.J.S.A. 9:2-4 is the relevant statute to be considered by the trial court in making a custody determination and, as opposed to a presumption of custody as set forth in the DV Act, the custody statute addresses domestic violence as one of several factors requiring consideration. As the Court went on to note:
the presumption under N.J.S.A. 2C:25-29(b)(11) fulfills its function by influencing the determination of custody in the initial FRO proceeding. As set forth above, any subsequent change in custody requires a prima facie showing of "a change in circumstances warranting revision of custody or parenting time in the best interests of the child as defined in N.J.S.A. 9:2-4,", and then proof at a hearing that the child's "best interests are served by modification of the existing custody order." If those showings are made, even after consideration of "the history of domestic violence," N.J.S.A. 9:2-4, re-application of the presumption to change the result would dictate a decision that is not in the best interest of the child.
Based upon the legal analysis applied by the Appellate Division, it was determined that "the court should instead have decided the custody issue in the divorce trial under "'a best interests analysis that gives weight to the factors set forth in N.J.S.A. 9:2-4(c),'"including but not limited to "the history of domestic violence," N.J.S.A. 9:2-4." Because the errors in legal application were clearly capable of producing an unjust result, the Appellate Division vacated and remanded the matter.