About Seton Hall Law

Prof_Kevin_Kelly_and_Victoria_Gonchar

Victoria Gonchar ’13

CSJ team takes on a challenging case

Professor Kelly describes the case history of the CSJ’s client, a wrenching situation: The client lost custody of her children in 2010 after leaving her husband due to domestic violence. She went to a shelter and agreed to temporarily give custody to her husband, who had no history of violence toward the children, so that the parties’ three children could remain in the marital home. Though this was meant to be a temporary measure, it was not until fall 2011 that the court permitted our client to see her two younger children after the Family Law Clinic went to court to obtain a visitation order for her. This was the first time in nearly a year that our client had the right to see her children.

As Professor Kelly explains, “While the 2011 visitation order was a dramatic change, our work was not yet done. We were still seeking parenting time with the oldest child as well as primary custody of all three children. After almost another year of delay due to motions, discovery and judicial reassignment, we were notified that we would be given three days for trial this fall at the beginning of the semester. It was good news to finally have a trial date, but it was also bad timing because the trial was scheduled only two weeks into the semester. It is hard to expect a clinic student to try a case this massive, this complicated.”

Professor Kelly was thrilled when Victoria Gonchar stepped in to volunteer, explaining, “I sent out an email to the fall Family Law Clinic students asking for assistance on a contested custody case. I was convinced I would have to do the entire trial and, at best, the student would help out. But Victoria persuaded me she was in for long hours. She came in on weekends and met with our client multiple times, including two marathon sessions lasting two full work days.”

Gonchar describes her contribution to the trial, saying, “In addition to the preparatory work, I conducted the direct examination for two expert witnesses at trial, as well as the direct examination for one character witness.”

“Our goal of trial was to get primary custody of all three children, residential and legal custody,” says Gonchar. “Due to alienation by the father, the experts believed our client was the better parent. We were realistic, however, with what might happen, given how long the children had been living with the father.”

According to Professor Kelly: “This case was unusual in that we do not see many cases tried anymore, let alone one tried in three consecutive days. Sadly, most parents only have 15 minutes with a judge before a decision is entered, and a case can be carried over years with little pieces done at a time. The trial here allowed for the judge to hear party testimony, expert testimony and character testimony all together in three days. It should be done this way, but because courts are so crowded it rarely happens.” 

In late November, the Family Law Clinic received a decision in the case. While the judge did not award primary custody of the children to the mother, he did award alimony to the mother in the amount requested and required ongoing therapy for the family to help in rebuilding family bonds. The father was ordered to sign up for therapy immediately to address anger issues. The court further noted that the mother was free to come back and reapply for custody of her younger children when she had a more stable job to help care for them. The father has filed a motion for reconsideration and the clinic has filed a cross motion on the client’s behalf. A final decision is several weeks away.

Commenting on the decision, Professor Kelly says that “[i]t was clear that the evidence presented during the three-day trial was critical in helping the judge to understand the family dynamics. In particular, the expert testimony clarified the impact of the father’s anger on the children, and the judge’s instruction that the father undergo therapy may help the children in the long run. However, the decision demonstrates the challenges faced by victims of domestic violence who leave their abusers, particularly those who were living in traditional family arrangements as stay-at-home mothers and are seeking to get back on their feet.”

Victoria adds, “My experience in the Family Law Clinic has been extremely rewarding. I have received an immense amount of first-hand legal experience and have learned so much from working with Professor Kelly on this trial. The trial took a great deal of time and energy, but it was worth it. Our client was extremely appreciative of all of our work. While we did not receive the decision we were hoping for from the judge, I know that my work helped the client receive a better outcome now, and hopefully she will be able to obtain primary custody of her children in the future. I would not trade this opportunity for anything.”