Arons & Solomon | March 17, 2020 | Articles
Our firm’s top priority is the safety of you and your children. If you are in immediate distress, please contact 9-1-1 or the New Jersey Domestic Violence Hotline: 800-572-SAFE (7233).
If you ended a marriage due to domestic violence, your divorce settlement should reflect the threat your ex-spouse presents to you and your children. Sadly, this is not always the case.
Sometimes, a poorly negotiated divorce settlement is not what you expected, or wanted. It may even award shared custody or unsupervised visitation to an abusive ex-spouse, despite the safety concerns you have for your children.
Divorce settlements are legally binding, but they are not final. You always have the right to petition the courts to amend or appeal your custody agreement, and we can help.
Obtaining a Restraining Order in New Jersey
There are two types of restraining orders, temporary and final. Both types of orders prohibit the defendant from contacting the person who filed the order, both in-person and digitally. Restraining orders can be filed on behalf of the children as well.
When a temporary restraining order is granted on behalf of a child, it overrules any existing visitation order in place. Your children would remain in your custody and not be turned over to the defendant until further Order of the Court.
Temporary restraining orders (TROs) are considered emergencies, and can be obtained quickly and easily. A person can request a temporary restraining order by filing a domestic violence complaint and TRO request at several locations:
- Family Division of the county court
- Home of the defendant
- Home of the plaintiff
- Local police station
- Location where the domestic violence occurred
- The temporary residence of the plaintiff (i.e., shelter, friend’s house, etc.)
If the request is made with the police, the officer will contact a judge who arranges a time to hear the request. Depending on the circumstances, the judge might even issue a TRO over the phone. When the TRO is granted, the order must be served directly to the defendant along with the date of the final restraining order hearing. This is typically done by a police officer. If the defendant owns a firearm, it will be confiscated by the police at this time.
A final restraining order (FRO) has the same protective elements as a TRO, but with an indefinite time limit. The judge can turn a temporary protective order into a final protective order at the final hearing, which must occur within 10 days of the TRO being issued.
Both the plaintiff and defendant can be present and testify at the final hearing. If the defendant chooses to skip the hearing, it will continue without him/her. If you have not found a family law attorney to attend your final hearing, you should. Confronting an abuser in court can be scary, and you must produce specific evidence to obtain the FRO. We can help.
Disobeying a Custody Order to Protect Children from Domestic Violence
If you are struggling to obtain a temporary restraining order and running up against the deadline of a custody order, you may be tempted to skip the scheduled hand-off with your spouse. Be VERY careful before doing this. While your intentions are noble, you could be charged with contempt of court, or at worst, parental kidnapping.
Before taking it upon yourself to disobey a custody order, always consult with a family lawyer to make sure you and the children are legally protected. That being said—a parent may be able to defend themselves against charges if:
- There was an imminent threat of domestic violence or child abuse, and the offending parent contacted the police, county prosecutor, or the New Jersey Division of Child Protection and Permanency (DCPP) to disclose the location of the child within 24 hours
- The offending parent sincerely believed they had the consent of the other parent to deviate from the custody arrangement
- The child is older than 14 years of age and left of his/her own volition
If you are concerned your ex-spouse might attempt to defy a custody order, or flee the state or country with your child, you can file an emergent application for custody with the court. If your application is granted, make sure all day care and school employees are aware of the situation and prepared to enforce the custody order.
Amending a Custody Agreement to Protect Children from an Abusive Parent
When judges consider a custody agreement, they weigh the facts of the case within the general framework of the “best interest of the child.” The best interest of the child refers to his or her physical, mental, and emotional well-being. Unless proven otherwise, it is assumed by the court that children benefit from having both parents play an active role in their lives.
According to N.J.S.A. 9:2-4, New Jersey courts will consider several factors when determining the “best interest of the child,” including:
- Age and number of children in each home
- Both parents’ ability to agree, communicate and cooperate in matters relating to the child, existing custody arrangement, and/or parenting time
- Extent-and quality-of time spent by both parents with the child before and after separation
- Fitness of both parents
- General proximity of the parents’ homes
- Location of the child’s school
- Preference of the child, if age appropriate
- Preserving healthy sibling and parent-child relationships
- Special needs of the child, if applicable
- Stability of the home environment
- The immediate physical safety of the child (and other parent), along with any history of domestic violence in the household
- Work hours and responsibilities of each parent
- Any other issues the court deems relevant
New Jersey courts will always prioritize the “best interest of the child” over all other factors, including the wishes of both parents and grandparents. We can help you petition the court to amend your existing custody plan to protect your children from domestic violence and neglect.
Hire a Lawyer in Morris County and Bergen County for Domestic Abuse Protection
If you feel unsafe, you have options. Arons & Solomon represents survivors of domestic abuse with unrelenting advocacy. We can help you seek temporary or permanent restraining orders, obtain a divorce, and protect your children.