New Jersey State Bar Association
Bergen County Bar Association

New Jersey Child Custody Modification Due to Threats of Violence and Harassment


In DS v. CS, a New Jersey appellate court considered an appeal from a final restraining order entered under the Prevention of Domestic Violence Act, and a change of custody ordered by the court. The lower family court had found that the defendant had threatened to kill her former husband and his current wife, and had harassed him by sending him threatening emails.

The couple was married for 11 years before they divorced. They had two kids, and when they got divorced, the mother had primary residential custody, while the father had a substantial amount of parenting time. In 2015, the father got a temporary restraining order against the mother for her terroristic threats under N.J.S.A. 2C:12-3, and harassment under N.J.S.A. 2C:33-4. There was a trial at which the daughter was a witness and testified that the mother had threatened to kill the father and his wife. One of these threats had also been recorded. The witness testified similarly. In the mother’s emails, she also threatened the father, telling him he would pay.

The family court found that the defendant had made terroristic threats and committed harassment. It concluded that the daughter’s testimony was credible, as was the witness’s testimony. The emails were also considered threats and harassment. It granted the restraining order to stop the wife from committing further abuses.

When the temporary restraining order was entered, the father was given temporary custody of their two kids. The family judge interviewed the daughter and continued custody of the kids with the father. It also directed the mother to participate in reunification therapy with the daughter and found she could have parenting time based on a therapist’s recommendation. The son was 17 and the daughter was 15 at that time.

The defendant appealed, and challenged the order and change of custody. She argued there were no terroristic threats and no harassment and that the order shouldn’t have been entered without a finding that it was necessary to protect the ex-husband. She argued it was an error to change the custody of their kids and that her due process rights were violated, among other things.

The appellate court explained that a trial court’s finding were binding if they were supported by credible, substantial and adequate proof. This was especially appropriate if most of the proof was testimony that required the lower court to determine credibility. It explained the PDVA was enacted to further a policy against domestic violence. When deciding whether to grant the order, the judge was supposed to determine if a predicate act of domestic violence, as set forth in N.J.S.A. 2C:25-19[(a)], had happened and that a restraining order was necessary to protect the victim.

The appellate court explained that someone is guilty of terroristic threats under N.J.S.A. 2C:12-3 if she threatens to commit a violent crime in order to terrorize somebody else or make that person fearful of death under circumstances that reasonably cause the victim to believe the threat is immediate and likely to be followed up on. The appellate court held that the lower court had enough evidence to find both terroristic threats and harassment.

The trial court had found that the perpetrator had reached a boiling point and could engage in further domestic violence. The appellate court determined there was sufficient evidence to make this finding. It also found that the threats could have serious adverse affects on the kids, such that a change of custody was not an abuse of discretion. The lower court’s ruling was affirmed.

If you are considering divorce in Bergen County or you need to ask for a modification in custody or support, it is important to retain an experienced and aggressive child custody attorney to seek an appropriate outcome. Contact the lawyers of Leopold Law at (201) 345-5907 or through our online form. We have attorneys available who can handle all aspects of a divorce and post-divorce family law matters.

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