When charged with domestic violence in New Jersey, one of the most pressing questions most people have is, “How with this affect my custody rights?” No matter if you've been wrongly accused or convicted, domestic violence can impact a parent's right to custodial rights in New Jersey. It can even lead to the loss of custody.
Regardless of your guilt or innocence, the fact remains that accusations of domestic violence should never be taken lightly. An apathetic response could cost you your custody rights and even impact your ability to see your children. For this reason, it's critical to have an experienced domestic violence defense attorney in your corner--not only for the criminal charges themselves but also to fight any pending restraining orders. Attorney Joseph D. Lento has more than 15 years of proven experience helping those accused of domestic violence to protect their rights and preserve custody arrangements. Let's dive deeper into how New Jersey law addresses child custody when it comes to domestic violence charges so you can be well informed about what to expect.
What Constitutes Domestic Violence in New Jersey?
In New Jersey, Domestic violence is any type of abuse that occurs between family or household members, such as spouses, former spouses, parents and children who are living together, or even people who are dating or who have dated. The definition of domestic violence may also extend to other relatives and cohabitants, such as grandparents, siblings, roommates/housemates, etc.—however, for the purposes of child custody, we'll mainly be focused on the relationships that produce children.
Whoever the individuals involved in domestic abuse may be, one thing is certain: if there is a child or children shared between them, child custody will play a critical role following an arrest for domestic violence against a family member.
Many acts of domestic violence qualify as other crimes, as well, but New Jersey specifically categorizes them as domestic violence when they are committed against any victim related to the defendant in one of the ways mentioned above. Examples of domestic violence crimes in New Jersey include:
- Sexual assault
- Criminal restraint
- False imprisonment
- Terroristic threats
- Criminal trespass
Note that many of the crimes listed above don't involve physical contact with the victim (burglary or criminal trespass, for example), but you can still be charged with domestic violence for committing them against a spouse, dating partner, etc. If so, your custody arrangements could be jeopardized.
Understanding Child Custody in New Jersey
There are two basic types of custody in New Jersey:
- Legal custody refers to the parent's right to make important decisions about the child's upbringing and future, including religious, educational, and other major decisions.
- Physical custody refers to where the child lives physically—under which parent's care the child resides.
Under this second type, physical custody arrangements between separated parents can take one of three forms:
- Sole physical custody means one parent has complete custody of the child.
- Shared physical custody means that the child stays with both parents, but not equally (e.g., the child stays at one house for 5 nights, and the other home for 2 nights).
- Joint physical custody means that both parents share custody equally.
When determining custody arrangements in New Jersey, the judge must take many factors into account to determine what sort of arrangement would be in the best interest of the child. These factors include, but are not limited to:
- The interaction and relationship between the child and each parent
- The stability of each parent's family environment
- The amount and quality of time each parent spent with the child prior to and after separation
- The ability of the parents to cooperate on issues and decisions that concern their child
- The quality and consistency of the child's education
- How close the parents' homes are to each other geographically
- The willingness of both parents to accept custody
- The child's preference (if he/she is of age to make a reasoned decision)
- History of conflict between parents on custody matters (e.g., if one parent refuses the other parent access to the child)
- Any history of domestic violence
- The safety of the child
How a Domestic Violence Conviction Can Affect Your Custody Rights
Being convicted for any type of domestic violence, no matter how minor the charge, can have an immediate negative effect on your right to custody of your children. Judges must weigh any instance of domestic violence (whether alleged or proven) when making decisions in the child's best interests with custody arrangements. This is true with any form of domestic violence within the relationship, whether or not it was directed at the child.
The judge will consider the following questions when weighing alleged or proven instances of domestic violence:
- Who was the target/victim of the violence?
- Is there a prior history of criminal activity in general, or domestic violence in particular?
- Is the alleged offender still a threat?
- Is there a recognized pattern of domestic violence in the relationship?
- What types of injuries (physical or emotional) resulted from the violence?
- Is there corroborating evidence for the alleged violence (e.g., police reports, eyewitness accounts)?
- Does the child show any signs of physical or emotional damage from the alleged violence?
Domestic violence is a serious offense, one that judges awarding custody take very seriously. If the very accusation of domestic violence can endanger your custody rights, a conviction can cause you to forfeit your rights completely. For that reason, it's critical to hire an experienced criminal defense attorney to fight charges of domestic violence.
How will my domestic violence charge affect ongoing custody negotiations?
If you and your former spouse/partner are still in the process of negotiating your custody arrangement, a domestic violence charge can greatly impact these negotiations. For example, if one parent is accused of domestic violence, the other may feel as though that parent can't be entrusted with joint custody--even if the victim was another partner and not the parent himself/herself. Even if no conviction results from the charges, the allegations alone can impact custody negotiations because the judge must now weigh the charges (and any resulting convictions) into the custody decision. If you are close to agreement in custody negotiations, a domestic violence charge can upend that agreement entirely.
Can a domestic violence conviction impact my existing custody agreement?
Yes, it can. Typically, this happens if the other parent requests a revisitation of the custody arrangement based on the incident of domestic violence, citing an inherent danger to the child. In extreme cases of violence, or in situations where the child has been directly abused, the sentencing judge may temporarily revoke your custody rights pending a review by the family court.
Although a conviction can have a serious impact on your rights, it does not necessarily mean you will lose custody of your children, especially if you are abiding by the existing custody arrangement and are not considered a danger to the child. The help of an attorney can make a real difference in the outcome in such cases.
Are there alternatives to completely losing custody of my child after a domestic violence charge or conviction?
Yes, there are. Despite the stigma involved with domestic violence, the court only revokes custody rights if it is deemed in the best interest of the child or for the child's safety. If there are mitigating factors that could allow the child to continue to have a relationship with you, the court always prefers to preserve the biological relationship between parent and child—as long as it deems it to be safe for the child.
For these reasons, if the judge believes there could be alternatives to a permanent revoking of your rights, he/she might order you to attend therapy, anger management classes, or receive some sort of treatment—especially if these might have been contributing factors to the violence. A judge can also temporarily revoke custody but grant some type of visitation situation. In the worst-case scenario, however, the judge can still permanently revoke your parental rights.
What if I was falsely accused of domestic violence? How will this affect my child custody rights in New Jersey?
There are times when one parent will accuse the other falsely of domestic violence—often as a ploy to manipulate the courts to revoke the custody rights of the other parent. The good news for you if this happens to you is that New Jersey courts take a very dim view of this behavior. If you and your attorney can provide evidence to refute the accusations or to prove that the other parent falsely accused you, the court may actually revoke the custody rights of the accusing parent and award you full custody of your children. Proving the claim of false accusation can be tricky, however, so it's always best to get help from an experienced New Jersey criminal defense attorney if you have been wrongly accused of domestic violence.
How will my domestic violence charges affect visitation rights? Will I still be able to see my children?
In all but the most extreme cases, you will probably be able to at least visit your children. New Jersey family courts operate by the belief that it is vital for parents to maintain interaction with their children whenever possible. As long as you are not deemed a direct threat to the children (e.g., you didn't abuse them), you will probably be allowed some sort of visitation arrangement even if your custody rights are temporarily or permanently revoked.
That being said, the courts may still invoke certain restrictions to ensure the children are not being exposed to further incidents of domestic violence. For example, your visits might need to be supervised by another adult (typically a family member), or overnight visits might be banned. If the court mandates some form of counseling or treatment for you, your visitation rights might be restricted or cut off until you complete those requirements.
Is it possible to regain custody rights after they've been revoked over domestic violence?
Yes—especially if the judge makes it conditional. For example, if you have been ordered to receive counseling, attend classes, or receive treatment, and you fulfill those obligations, the court may conclude that the treatment has had a positive impact on your life and/or behavior and that you are no longer considered a threat to your children. If this is the case, you can petition the judge to restore your custody rights. The court will almost certainly require you to provide substantial evidence that your behavior has changed and that you can be trusted as a parent again. The judge will also likely weigh the opinion of the other parent, especially if he/she was the victim of the violence. Your chances of having custody rights restored increase substantially if the other parent is cooperative.
All that said, there are instances (particularly with extreme violence or an extended pattern of child abuse) where the judge may permanently revoke all your parental rights in the wake of a domestic violence conviction. In such cases, you likely will not get any of your rights back. It's important to have a skilled defense attorney to help you try and avoid this outcome.
What if I have a restraining order against me? Can this affect my custody rights?
Yes, it can. Although restraining orders are a civil matter and not directly related to your criminal charges, the courts treat a final restraining order (FRO) with almost as much weight as a domestic violence conviction when making custody decisions regarding the children. An FRO is seen as verifiable evidence that domestic violence took place, and it may result in your losing custody rights.
How do restraining orders affect custody rights in New Jersey?
Most domestic violence cases result in at least a temporary restraining order (TRO) and quite often a final restraining order (FRO). Both types of restraining orders can greatly complicate custody rights for the person accused of domestic violence. Here are several examples:
- A TRO can temporarily revoke your custody and visitation rights for up to 10 days until a restraining order hearing is held. That means while the TRO is in effect, you could be potentially banned from all contact with your children for those ten days.
- An FRO may contain specific language that restricts, limits, or revokes your custody rights while the FRO is in effect. This may be considered a temporary measure until a custody hearing can be scheduled to solidify permanent arrangements. (Sometimes, a parent will obtain an FRO specifically for the purpose of temporarily bypassing existing custody orders.)
- Even if the FRO does not limit contact with your children or your rights, your custody rights could still be in jeopardy. The FRO will very likely be used against you in any upcoming custody hearings as evidence of domestic violence.
If I have an FRO against me, when does it expire?
It doesn't. In New Jersey, final restraining orders are permanent and do not expire. Your FRO will continue to be in effect until either you or the alleged victim petition the court to have it rescinded. During that time, if the FRO contains any language affecting your custody rights, those restrictions will remain in place until the FRO is canceled or until your custody arrangements are clarified at a future custody hearing.
Does the FRO supersede my existing custody rights regarding my kids?
Yes, it does. While an FRO does not grant custody permanently, it does supersede any current custody arrangements you have in place. If the FRO limits your custody and/or visitation rights, you will need to renegotiate these rights at a later time in a custody hearing.
Because of how restraining orders work in New Jersey, sometimes parents will use them as a tactic to take temporary custody of their children and block the other parent's rights without having to go through a formal custody battle. If you believe your partner has used an FRO to unfairly limit your rights, talk to an attorney as soon as possible.
Can I challenge my restraining order if it affects my custody rights?
Yes. You can appeal restraining orders in three different ways:
- You can ask for an immediate plenary hearing to appeal a TRO. (For most people, however, this is impractical since the TRO is only in effect for about 10 days.)
- You can challenge the restraining order at the final hearing to make the TRO permanent (i.e., convert it to an FRO). At this hearing, you can present evidence to show that the custody/visitation restrictions are unfair or irrelevant. If the judge agrees, he/she may either allow the TRO to expire or remove the custody restrictions from the final restraining order.
- You have 45 days to file a formal appeal of an FRO.
What happens if I ignore the terms of a restraining order and visit my kids anyway?
If you violate any terms of a restraining order in New Jersey (including any custody or visitation restrictions), it constitutes criminal contempt—a fourth-degree offense (a minor felony) that could result in 18 months imprisonment plus a $10,000 fine, not including any other domestic violence charges you might be facing. Doing so would also almost certainly work against you in any future custody proceedings. To avoid losing full custody of your children, a much better option would be to challenge the restraining order using normal legal channels with the help of an attorney.
If there is no existing custody arrangement, can the restraining order grant custody?
Yes, it can. If you have not yet negotiated a custody arrangement with your partner, New Jersey provides for the restraining order to award temporary custody to the person who requested it until permanent custody arrangements can be made. The restraining order may also contain specific language outlining visitation arrangements until permanent custody arrangements are negotiated.
Defend Yourself Against Domestic Violence Charges with an Experienced New Jersey Criminal Defense Attorney
Being charged or convicted of domestic violence can dramatically impact your future relationship with your children, including your custody rights. Too much is at stake to try and handle these important matters on your own. It's crucial to have a skilled New Jersey criminal defense attorney on your side who can help protect your family and your future while you find a path forward. A good attorney can work on your behalf to have the charges dismissed, challenge an unfair restraining order, exonerate you at trial, and/or at least minimize the damage so your custody rights remain intact.
If you have been accused of domestic violence, time is of the essence to make sure you don't lose your custody rights. Attorney Joseph D. Lento has helped countless defendants avert terrible consequences arising from domestic violence charges. Contact the Lento Law Firm at 888-535-3686 as soon as possible so we can begin building a defense for your case today.