                  NOT FOR PUBLICATION WITHOUT THE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.




                                       2                                A-4165-11T4
       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




                                         3                                  A-4165-11T4
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




                                            4                                      A-4165-11T4
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




                                              6                                     A-4165-11T4
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.



                                           7                                 A-4165-11T4
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




                                         8                                  A-4165-11T4
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



                                           9                                   A-4165-11T4
            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




                                           10                                   A-4165-11T4
"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




                                   11                                 A-4165-11T4
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.




                                        12                               A-4165-11T4
                                           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.




                                            13                                   A-4165-11T4
    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.




                                   14                            A-4165-11T4
