R.K. VS. F.K.
A-4165-11T4
Under the two-step process outlined in Lepis v. Lepis,
83 N.J. 139 (1980), a movant seeking a change of custody
must show a change of circumstances warranting relief to be
entitled to an evidentiary hearing, but the judge must
decide the evidentiary hearing based on the best interests
of the child. After a seven-day divorce trial focused on
child custody, the trial court mistakenly found no
substantial change in circumstances rather than determining
the best interests of the children.
The trial court also erred by relying on the Domestic Violence Act's provision that the court "shall presume that the best interests of the child are served by an award of [temporary] custody to the non-abusive parent." N.J.S.A. 2C:25-29(b)(11). That presumption, important in the initial FRO proceeding, has no application in a subsequent custody determination in a divorce trial, particularly once a change of circumstances has been shown. Rather, that trial is governed by N.J.S.A. 9:2-4, under which "the history of domestic violence" is one factor among several that the court must consider in determining the best interests of the children.
The trial court also erred by relying on the Domestic Violence Act's provision that the court "shall presume that the best interests of the child are served by an award of [temporary] custody to the non-abusive parent." N.J.S.A. 2C:25-29(b)(11). That presumption, important in the initial FRO proceeding, has no application in a subsequent custody determination in a divorce trial, particularly once a change of circumstances has been shown. Rather, that trial is governed by N.J.S.A. 9:2-4, under which "the history of domestic violence" is one factor among several that the court must consider in determining the best interests of the children.
