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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.

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