Going back more than three decades, there are Appellate Division cases that offer caution about the abuse of the domestic violence statute to get a leg up in an impending or pending divorce or custody matter. At around the same time and in some of the same cases, the term domestic contretemps entered the lexicon to describe garden variety arguments, or even a little worse, that did not rise to the level of domestic violence.

Yet over the course of my more than 30 years in practice, I have seen litigants abuse the domestic violence statute to get a leg up. Very often, a client will ask “how do I get him (or her) out of the house” and they are disappointed to learn that generally, it is not possible unless there is a restraining order. While I am not suggesting that an unscrupulous attorney would not say that with a wink an a nod, I have had my concerns about this over the years and even absent that, I have seen people file bogus or weak domestic violence complaints.

I have further seen people file bogus or weak domestic violence complaints as a way to address post-judgment custody and parenting problems, requests to relocate, etc. Generally, a court is not supposed to hear about custody issues because in an of themselves, they are quite often not relevant to whether a predicate act of domestic violence had occurred or any prior history of domestic violence. Moreover, a court should not use the entry of a final restraining order to remedy custody and parenting issues if there really isn’t domestic violence.

These issues came up in the unreported (non-precedential) case of K.K. v. T.T.M., decided on February 1, 2024. The facts of the case are interesting in that both sides presented video evidence of either the presence or absence of what they were alleging. Also, apparently there was a lot of testimony about custody issues during the hearing. The trial judge found that the plaintiff was uniquely credible and granted the FRO.

The Appellate Division reversed and remanded to a new judge, finding the trial judge’s factfinding to be lacking. As to the problem of the trial court hearing substantial testimony regarding custody and parenting issues, the Appellate Division held:

“Moreover, the trial court erred in hearing extensive testimony regarding custody and parenting time issues before finding a need for a FRO. It preoccupied itself almost exclusively with ancillary parenting and custody matters during the hearing. Those issues should not be addressed unless and until a FRO is issued. If a trial court has concerns regarding parenting, it has other available avenues to impose parenting and custody restraints without entering a FRO.

While not a reported decision, this case is a good case for every lawyer to keep in their back pocket to attempt to prevent extraneous custody and parenting issues, or for that matter, any other extraneous issues, from poisoning the well at a domestic violence trial.

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