S.B. v. K.C.: Custody Arrangements that Give Rise to Continuing Risks for Domestic Violence

On October 12, 2018, the Appellate Division handed down an unpublished decision in S.B. v. K.C., a case in which Essex County Superior Court dismissed an application for a domestic violence temporary restraining order and denied a final restraining order. 

Plaintiff and Defendant were never married but had one child together, born in August 2007.  The parties lived together for a few months following their child’s birth, until Defendant became incarcerated. 

Plaintiff filed her first domestic violence complaint on June 18, 2012.  She alleged that Defendant had hit her during their child’s preschool graduation and threatened to kill her, and also kicked Plaintiff’s car while she was sitting in it.  Plaintiff also laid out a history of previously unreported domestic violence incidents spanning as early as when their child was 3 weeks old.  A trial court judge granted Plaintiff’s request for a temporary restraining order (TRO) pursuant to the Prevention of Domestic Violence Act (PDVA)(N.J.S.A. 2C:25-17 to -35). 

Defendant was not served with the TRO until he appeared for a visitation hearing before a second trial court judge nearly 5 years later, on February 17, 2017.  At that time, the second trial court judge continued the restraints from the original TRO and scheduled a trial date for a Final Restraining Order (FRO) hearing. 

On March 2, 2017, Plaintiff amended her complaint to add more incidents that had occurred since the entry of the initial TRO.  The second trial judge granted Plaintiff’s amended TRO and scheduled an FRO hearing for March 16, 2017 before a third trial judge. 

A trial court must analyze a case brought under the PDVA by applying the two-prong test in Silver v. Silver, 387 N.J. Super 112, 126 (App. Div. 2006).  The first prong requires the court to determine whether or not a predicate act (as defined by the PDVA) was committed, and the second prong requires the court to determine whether a final restraining order is necessary to prevent the defendant from causing harm to the plaintiff in the future. 

At the March 16, 2017 hearing, Plaintiff appeared with counsel, while Defendant failed to appear at all.  Plaintiff gave testimony.  The court issued an FRO by default on the grounds that Defendant had committed the predicate acts of assault and harassment and that Plaintiff was afraid of Defendant. 

However, the next day (March 17, 2017) the Defendant appeared in court and filed a motion for reconsideration before the second trial judge, claiming that he (the Defendant) had made a mistake with respect to the FRO hearing date.  When the second judge heard the motion for reconsideration, both parties appeared (Plaintiff had counsel) and both parties testified.  Neither presented witnesses or documentary evidence.  The judge ultimately found that Plaintiff failed to corroborate most of the allegations made in her amended TRO but that she did prove that Defendant committed three predicate acts on two separate occasions.  Even though the judge recognized that Defendant committed predicate acts, the trial judge commented that the incidents were three years apart, and he saw no immediate danger to Plaintiff and therefore, there was no need to enter an FRO to prevent future harm. 

Plaintiff appealed.  Defendant failed to file any responsive pleadings.  The Appellate Division found that the trial court had “failed to give sufficient measured consideration to the ongoing visitation issues concerning [the parties’ child] which will continue to bring the parties into contact and almost inevitably be a source of conflict.” The Appellate Division noted that Defendant’s commission of two separate predicate acts were likely to be repeated in the future because of the ongoing issues, and that the trial judge was mistaken in finding that Plaintiff failed to establish the second prong of the Silver analysis.  The Appellate Division reversed the trial judge’s decision, remanded the matter back to the trial court, and directed the trial court to enter an FRO, including parenting time provisions if necessary. 

Sahai v. Sahai: A Noncompliant Party Cannot Withhold Financial Information from the Court then Claim an Inability to Pay Sanctions and Attorney’s Fees

On October 2, 2018, the Appellate Division handed down an unpublished decision in Rooney Sahai v. Susan Sahai, a post-judgment matrimonial matter on appeal from Bergen County. 

The parties divorced in 2012 after 26 years of marriage.  Their Property Settlement Agreement (PSA) provided for no parenting time between Susan and the parties’ severely disabled adult daughter, even though both parties cared for the child from the time of her birth through the entry of their divorce.  In July 2014, Susan filed a motion to vacate the PSA on the grounds that Rooney coerced her into signing it.  The court scheduled a plenary hearing shortly thereafter. 

Over the 4 ½ years that followed Susan’s motion; Rooney engaged in what the Appellate Division labeled as “obstructionist litigation.”  Rooney failed to comply with 3 separate court orders (including a consent order), entered over the course of 9 months, for Susan to have visitation with the parties’ daughter.  Rooney initiated a criminal complaint against Susan with the Bergen County Prosecutor’s office (which was administratively dismissed).  He also filed civil suits against Susan’s attorney in Superior Court and Federal Court (both of which were also dismissed).  During all of this chaos, the trial court imposed $20,000 in sanctions against Rooney for his non-compliance with court orders as well as ordering him to pay over $10,000 in attorney’s fees.   

Rooney filed 2 appeals relative to the sanctions and attorney’s fees.  Prior to the Appellate Division reviewing the matter, Susan’s attorney informed the court that the plenary hearing was still pending, as the trial court was now awaiting the Appellate Division’s decision. 

On appeal, the court noted that Rooney had failed to comply with the financial discovery that was required of him at the trial level.  For that reason, he could not now come before the Court and claim an inability to pay.  The Appellate Court also supported the trial court’s statements that it did not find Rooney’s testimony about his financial circumstances to be credible, and that it was able to make a “reasonable inference” that he was either attempting to hide money or attempting to mislead the court.  The Appellate Court ultimately affirmed the trial court’s award of counsel fees and imposition of sanctions. 

The Little White Christmas Tree

Biggest brother putting ornaments on the tree at age 5.

The last time I packed our Christmas tree into the box I didn’t know it was the last time.  We split in June that year.  I picked out some ornaments when we separated our things, but for the most part, I said goodbye to the shiny little trinkets I had picked out for our family.

That was a few years ago.  The first Christmas after that was pretty brutal.  I didn’t even take out the ornaments I had brought with me.  I made a fun arts and crafts type of tree for our then 2 year olds to play with, and when they went to her house to celebrate I turned to Lifetime movies and pie.  It was pretty cliche.

The next year I had a tiny 2 foot tree I bought on a whim at Target.  The kids had a blast making tiny ornaments and I didn’t worry about them knocking anything down too much.  I had a less sad Christmas that year.  It’s amazing what effect those colorful little lights have on a room.

Fast forward a bit and the scene unfolds in a way I never expected.

Youngest brother putting ornaments on the same tree at age 5.

This year my ex, her spouse, and I, along with our kids, pulled out that same old tree.  We put on ornaments from all over the place.  We redefined our traditions in our own unique way.  We successfully blended what we had once worked so tediously to separate.

An ornament broke.  The kids stayed up too late.  We made a huge mess.

It was pretty perfect.

Day 12…

Today is day 12 of entirely solo parenting.

Today I am so thankful for my coparents.

When we first split, I took the kids and moved.  I moved far enough away to not bump into each other in the grocery store.  To not worry about who hears and says and sees what.  I moved far enough away to give myself the time and space I needed to be mad and hurt and to process in my own way.

About a year later I moved back closer.   I had had my space.   I had felt my feelings.   I had healed some of what needed to be healed.   And I was SO sick of traffic during visits.

 

Another two years after that we moved even closer together.  My coparent and I, along with the new spouse had worked together to get things where and how they needed to be for the kids.  And quite frankly, for ourselves.

We stopped calling each other exes and started calling each other coparents.  We stopped worrying about parenting time lost and started focusing on how to better spend our time now.  And now we truly are a team.  A team that works so well, that we don’t even realize it sometimes.

So now that they have been away for TWELVE days, I can confidently say that as much as I am a single parent, I am also NOT a single parent.  Nor do I wish to be.  My kids do better when they have all of us.  We do better when we have all of us.  And while everyone survived this adventure, and even had fun, I’m happy that the other two-thirds of my team will be home tonight.