R.K. v. F.K.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4165-11T4
R.K.,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
July 28, 2014
v.
APPELLATE DIVISION
F.K.,
Defendant-Respondent.
__________________________________
Submitted March 24, 2014 – Decided July 28, 2014
Before Judges Yannotti, Ashrafi and Leone.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Middlesex
County, Docket No. FM-12-2254-11.
Brandon L. Martin, attorney for appellant.
Respondent has not filed a brief.
The opinion of the court was delivered by
LEONE, J.S.C. (temporarily assigned).
Plaintiff R.K. (Father) appeals from the Judgment of
Divorce which designated defendant F.K. (Mother) as the parent
of primary residence. After a seven-day trial, the court denied
relief because it found no substantial change of circumstance,
and because it relied on the presumption of custody in N.J.S.A.
2C:25-29(b)(11) of the Prevention of Domestic Violence Act of
1991 (DV Act), N.J.S.A. 2C:25-17 to -33. Because the court
misapprehended the roles of both the change of circumstances
requirement and the presumption, we vacate and remand.
I.
Father and Mother were married in 2001. They had four
children: K.K., born in 2001; A.K., born in 2003; E.K., born in
2004; and R.K., born in 2007.
On August 2, 2008, Mother obtained a temporary restraining
order against Father. She alleged an act of harassment. The
Family Part entered a final restraining order (FRO) on August
12, 2008. The FRO gave Mother temporary custody of the four
children. It gave Father parenting time for specific hours on
Wednesdays, Saturdays, and Sundays, and allowed him to
communicate with the children by email. As ordered in the FRO,
Father underwent anger management counseling.
In November 2008, the court hearing the domestic violence
(DV) case amended the FRO, giving Father and Mother joint legal
custody and granting Father holiday parenting time. The DV
court again amended the FRO in June 2009 to give Father
parenting time on alternate weekends from the end of school on
Friday until Sunday at 6:00 p.m., on Wednesdays from the end of
school until 8:00 p.m., and on holidays.
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On July 19, 2010, the DV court held a plenary hearing,
denied Father's request for change of custody, and allowed
Mother to continue to home-school the children.
Father filed a complaint for divorce in 2011. Prior to
trial, Father's expert psychologist, Dr. Donald J. Franklin,
interviewed Father, Mother, the four children, and others, did
psychological testing, and produced a report. Franklin reported
that Mother had "very significant psychological problems," which
jeopardized her "emotional stability as a parent," were "likely
to interfere with appropriate parental communication with"
Father, were "likely to interfere with her parenting," and could
have "a very negative effect on her children."
Franklin concluded that "[t]he current situation does not
appear to be in the best interests of the children as a long-
term plan." Franklin found it inadvisable for Mother to
continue home-schooling the children. Franklin also recommended
that Father and Mother split residential parenting
responsibilities evenly.
The trial court ordered a seven-day divorce trial focused
on child custody and schooling. On March 13, 2012, the court
issued the judgment of divorce. The court designated Mother the
parent of primary residence, continued the existing parenting-
time schedule, and provided that the issue of home-schooling
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could be revisited only in the year before each child begins
high school. The court stated its findings of fact and
conclusions of law orally and in a written attachment to the
order. Father filed a notice of appeal on April 24, 2012. The
trial court issued a written amplification of decision dated May
3, 2012.
II.
Father argues that the trial court misapplied the legal
standard for custody determinations. Specifically, he
challenges the court's application of 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).
He also complains that the court required "[a] substantial
change in circumstances," found no such change, and denied
relief on that basis.
We must hew to our standard of review. "Because we review
issues of law de novo, we owe no deference to an interpretation
of law by the trial court[.]" M.S. v. Millburn Police Dept.,
197 N.J. 236, 246 n.10 (2008).
III.
Here, the trial court applied a changed-circumstances
standard to decide the trial itself. However, at a trial to
determine custody, "the ultimate judgment is squarely dependent
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on what is in the child's best interests." Baures v. Lewis, 167
N.J. 91, 115 (2001).
In Lepis v. Lepis, 83 N.J. 139 (1980), the Supreme Court
set forth "the proper procedure for courts to follow on
modification motions." Id. at 157. "A prima facie showing of
changed circumstances must be made before a court will order
discovery[.]" Id. at 157-58 & n.10. "Once the above steps have
been completed, the court must decide whether to hold a
hearing." Id. at 159.
Thus, Lepis outlined a "two-step process." Crews v. Crews,
164 N.J. 11, 28 (2000). In the first step, the movant "must
meet the threshold standard of changed circumstances" to be
entitled to discovery and an evidentiary hearing or trial. J.B.
v. W.B., 215 N.J. 305, 327 (2013); Crews, supra, 164 N.J. at 28;
Miller v. Miller, 160 N.J. 408, 420 (1999). Once the movant
makes that prima facie showing, however, the second-step hearing
or trial is decided using "the same standard that applies at the
time of [an] original judgment of divorce." Gonzalez-Posse v.
Ricciardulli, 410 N.J. Super. 340, 350 (App. Div. 2009); see
Crews, supra, 164 N.J. at 16.
The Lepis two-step process procedure applies to changes in
child custody. E.g., Hand v. Hand, 391 N.J. Super. 102, 105
(App. Div. 2007); Abouzahr v. Matera-Abouzahr, 361 N.J. Super.
5 A-4165-11T4
135, 152 (App. Div.), certif. denied, 178 N.J. 34 (2003). "The
paramount consideration in child custody cases is to foster the
best interests of the child." Beck v. Beck, 86 N.J. 480, 497
(1981). Thus, "a motion for a change in custody . . . will be
governed initially by a changed circumstances inquiry and
ultimately by a simple best interests analysis." Baures, supra,
167 N.J. at 116.
Here, rather than denying a custody hearing for lack of
changed circumstances under Lepis's step one standard, the trial
court proceeded to the second step under Lepis by holding a
custody trial. Holding a custody trial was appropriate.
Franklin's report established a prima facie case justifying an
evidentiary hearing because it showed "a change of circumstances
warranting modification." Beck, supra, 86 N.J. at 496 n.8; N.J.
Div. of Youth & Family Servs. v. N.D., 417 N.J. Super. 96, 112
(App. Div. 2010); Sheehan v. Sheehan, 51 N.J. Super. 276, 287
(App. Div.), certif. denied, 28 N.J. 147 (1958); see Lepis,
supra, 83 N.J. at 175 (holding that "[t]he party seeking
modification has the burden of showing such 'changed
circumstances' as would warrant relief"). Father thus was
"entitled to a plenary hearing as to disputed material facts
regarding the child's best interests, and whether those best
interests are served by modification of the existing custody
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order." Faucett v. Vasquez, 411 N.J. Super. 108, 111 (App. Div.
2009), certif. denied, 203 N.J. 435 (2010).
Thus, the court was required to determine custody at that
trial based solely on the best interests of the children.
However, in its decision the court mistakenly relied on the lack
of a "substantial change in circumstances." The change of
circumstances standard serves to determine whether a trial
should be held, not to determine the result of that trial.1
IV.
The trial court also erred by relying in this matrimonial
proceeding on the presumption used in domestic violence cases.
In an initial FRO hearing, the court "may issue an order
granting any or all of the following relief," including "(11) An
order awarding temporary custody of a minor child." N.J.S.A.
2C:25-29(b). In awarding temporary custody, the DV court "shall
presume that the best interests of the child are served by an
award of custody to the non-abusive parent." Ibid.
This presumption plays an important role in the initial DV
proceedings, which must be conducted expeditiously, and in which
1
Because the changed-circumstances standard will not be applied
on remand, we need not address Father's argument that the trial
court's formulation, "a substantial change in circumstances,"
Voit v. Voit, 317 N.J. Super. 103, 121 (Ch. Div. 1998), differed
from the formulation, "a change in circumstances warranting
modification," set forth in Beck, supra, 86 N.J. at 496 n.8, and
other cases.
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custody is only one of many issues. See N.J.S.A. 2C:25-29(b).
Further, this presumption reflects the DV Act's finding "that
there exists 'a positive correlation between spousal abuse and
child abuse; and that children, even when they are not
themselves physically assaulted, suffer deep and lasting
emotional effects from exposure to domestic violence.'" J.D. v.
M.A.D., 429 N.J. Super. 34, 43-44 (App. Div. 2012) (quoting
N.J.S.A. 2C:25-18).
In this case, the DV court awarded Mother temporary custody
of the four children in the FRO proceeding in 2008. In the 2012
divorce trial, the trial court assumed that the presumption
still governed. The court cited a DV case which upheld an
amended FRO. Grover v. Terlaje, 379 N.J. Super. 400 (App. Div.
2005). In Grover, the defendant demanded joint legal custody
"only eight months" after he was released from probation imposed
after his conviction for possession of a weapon for unlawful
purposes and harassment, "apparently stemming from the" domestic
violence incident. Id. at 403-04, 409-10. Here, by contrast,
the parties have had joint legal custody since 2008, and three
and a half years have passed without any domestic violence.
In the DV context, Grover found "the presumption weakens as
time passes without any conduct which can be said to jeopardize
the 'non-abusive spouse' or the child." Id. at 407. Grover did
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not purport to decide whether the presumption applies in a
divorce trial. 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). Except for the amended FRO
in Grover, we have applied it only in appeals from initial FROs.
See J.D., supra, 429 N.J. Super. at 37; Mann v. Mann, 270 N.J.
Super. 269, 273-74 (App. Div. 1993).
A different statutory scheme applies to custody
determinations in divorce trials. They are governed by N.J.S.A.
9:2-4, which addresses domestic violence as one of several
factors requiring consideration. See Oliver v. Ambrose, 152
N.J. 383, 398 (1998).
In making an award of custody, the
court shall consider but not be limited to
the following factors: the parents' ability
to agree, communicate and cooperate in
matters relating to the child; the parents'
willingness to accept custody and any
history of unwillingness to allow parenting
time not based on substantiated abuse; the
interaction and relationship of the child
with its 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 when of sufficient
age and capacity to reason so as to form an
intelligent decision; the needs of the
child; the stability of the home environment
offered; the quality and continuity of the
child's education; the fitness of the
parents; the geographical proximity of the
parents' homes; the extent and quality of
the time spent with the child prior to or
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subsequent to the separation; the parents'
employment responsibilities; and the age and
number of the children.
[N.J.S.A. 9:2-4 (emphasis added).]
In considering these N.J.S.A. 9:2-4 factors in a divorce
proceeding, "the trial court must remain mindful of the need for
the continued protection of domestic violence victims when
crafting orders, particularly those involving parenting time."
Finamore v. Aronson, 382 N.J. Super. 514, 521, 523 (App. Div.
2006). At the same time, the court must consider the
Legislature's determination that "[t]he child's 'best interest'
is fostered when both parents are involved with the child,
assuring [the child] of frequent and continuing contact with
both parties." Id. at 523 (quoting N.J.S.A. 9:2-4). "While
striking this balance the court must keep sight of the benchmark
of the best interest of the child." Ibid. Thus, the history
of domestic violence, like parental safety, "is one
consideration" in determining the best interests of the child,
not a presumption that predetermines that key issue. See id. at
523-24.
Moreover, 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
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"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," N.D., supra, 417 N.J. Super. at 112, and then
proof at a hearing that the child's "best interests are served
by modification of the existing custody order," Faucett, supra,
411 N.J. Super. at 111. 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.
We recognize the DV Act is intended "'to assure the victims
of domestic violence the maximum protection from abuse the law
can provide.'" Cesare v. Cesare, 154 N.J. 394, 399 (1998)
(quoting N.J.S.A. 2C:25-18). However, the Supreme Court has
long emphasized that "the child's best interests are paramount
in child custody matters." Matsumoto v. Matsumoto, 171 N.J.
110, 132 (2002); Brennan v. Orban, 145 N.J. 282, 301 (1996).
Though "'there is no such thing as an act of domestic violence
that is not serious,'" J.D. v. M.D.F., 207 N.J. 458, 473 (2011)
(quoting Brennan, supra, 145 N.J. at 298), some acts of domestic
violence are more serious than others, compare id. at 475-76,
482 (emphasizing harassment is the "most challenging basis for a
domestic violence complaint" because it is difficult to
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distinguish from ordinary "domestic contretemps"), with N.J.S.A.
2C:25-18 (noting many victims "are regularly beaten, tortured
and in some cases even killed").
Allowing our family courts to weigh the seriousness of the
history of domestic violence against the other N.J.S.A. 9:2-4
factors, rather than binding them with a mechanical presumption,
better enables them to consider the best interests of the child
in determining the vital issue of child custody in divorce,
using their "special expertise in the field of domestic
relations." Cesare, supra, 154 N.J. at 412. In so doing, the
court must consider "the safety of the child and the safety of
either parent from physical abuse by the other parent."
N.J.S.A. 9:2-4.
Here, the trial court began its consideration of custody by
stressing the presumption, and concluded by citing the
presumption as its number one reason for finding no change of
circumstances. As set forth above, 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),'" Faucett, supra, 411 N.J. Super. at
118 (quoting Hand, supra, 391 N.J. Super. at 105), including but
not limited to "the history of domestic violence," N.J.S.A.
9:2-4.
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V.
We have reviewed the court's decision to determine whether
it could be harmless error that the court used the pre-trial
change-of-circumstances standard in deciding the custody issue,
and relied on the inapplicable DV Act presumption. Our
examination, however, convinces us that those errors were
"clearly capable of producing an unjust result." R. 2:10-2; see
Terry v. Terry, 270 N.J. Super. 105, 119-20 (App. Div. 1994).
Accordingly, we vacate the provisions of the judgment of
divorce denying Father's request to change physical custody,
parenting time, and schooling, and we remand for the trial court
to consider the N.J.S.A. 9:2-4 factors anew. Rather than apply
any changed-circumstances standard or the presumption in
N.J.S.A. 2C:29-25(b)(11), the court shall analyze the N.J.S.A.
9:2-4 factors to determine whether the current physical custody,
visitation, and home-schooling of the children is in the best
interests of the children. The court's consideration of
N.J.S.A. 9:2-4 factors should include relevant factors
concerning the history of domestic violence, see Grover, supra,
379 N.J. Super. at 410, psychological evidence concerning the
parents' mental health, see Kinsella v. Kinsella, 150 N.J. 276,
327-29 (1997), and evidence of parental non-cooperation, see
Beck, supra, 86 N.J. at 499.
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We recognize that the circumstances of the parties and
children may have changed in the time since the divorce trial
ended in early 2012. Accordingly, "'on remand both parties may
supplement the record with any information that may be pertinent
to the trial judge's determination of this case.'" See Morgan
v. Morgan, 205 N.J. 50, 69 & n.3 (2011) (quoting Cooper v.
Cooper, 99 N.J. 42, 59 (1984)).
Vacated and remanded. We do not retain jurisdiction.
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