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June 2015 Archives

Presumption of Temporary Custody to the Non-Abusive Parent in Domestic Violence proceedings is not Determinative of Permanent Custody Decisions

In initial domestic violence proceedings, the court may order "temporary custody of a minor" and "shall presume that the best interests of the child are served by an award of custody to the non-abusive parent" pursuant to N.J.S.A. 2C:25-29(b). In the recent case R.K. v. F.K., New Jersey's Appellate Division found that this presumption has no application in a subsequent custody determination in a divorce trial. Specifically, the Appellate Division held that the trial judge had erred in awarding permanent custody to the non-abusive parent in reliance of the presumption under N.J.S.A. 2C:25-29(b). The R.F. Court held that such a custody trial is instead governed by N.J.S.A. 9:2-4, which addresses domestic violence as one of several factors the court must consider in awarding custody. In other words, a history of domestic violence does not serve as a predetermination of the issue of custody.

Only One Legal Parent's Consent is required for a Third Party to have Standing as a "Psychological Parent"

A person may become a "psychological parent" to a child when he or she steps into the shoes of a natural parent. Such a person (referred to a "third party" legally), may become a psychological parent if a legal parent of the child chooses to cede a measure of parental authority to the third party. Four essential requirements must be satisfied for one to become a legally-recognized psychological parent: (1) The legal parent must consent to and foster the relationship between the third party and the child; (2) the third party must have lived with the child; (3) the third party must perform parental functions for the child to a significant degree; and (4) most importantly, a parent-child bond must be forged. These criteria are designed to assist a court in evaluating whether a third party has in fact become a psychological parent and thus has standing to bring a custody suit. As the New Jersey Supreme Court recognized in the 2000 case V.C. v. M.J.B., at the heart of psychological parent cases is the recognition that children have a strong interest in maintaining the ties that connect them to adults who love and provide for them.