We all know that the law isn't always “fair”, depending on which side you're on.  However, laws aren't meant to suit each person's needs and preferences.  They exist to provide a framework that governs us as a society, rather than an individual.  On the other hand, there are some very personal situations that require reinterpreting or clarifying the laws.  This is typically the case with family court rulings, which sometimes result in changing or adding to existing laws.  One of the areas that had long been overdue for reinterpretation is the presumption of custody for domestic violence victims.  This is understandably a controversial subject since it involves children, and the access they will, or should have with both parents.

Public sentiment seems to favor custody being awarded to the victim, with the attacker having limited or no visitation.  People are generally okay with the abuser having legal custody, since that normally doesn't require physical contact with the victim or their children.  In spite of what many people consider fair, perhaps even common sense, the New Jersey courts do not automatically award custody to the parent who was awarded the restraining order.  This is confusing even for those who know the laws, which was evident in the 2014 Appellate decision in the case of R.K v. F.K.  This case involved a domestic violence case in which the victim (mother) was given primary custody after the issuance of a final restraining order.  The attacker filed for divorce two years later and asked for joint physical and legal custody of their children. 

The trial court issued a decision to maintain the existing custody agreement, stating that a qualifying change of circumstance (required in standard custody modifications) had not taken place.  In addition, they relied upon the provision in the Prevention of Domestic Violence Act pertaining to the presumption of custody being awarded to the victim.  The Appellate Division overruled this verdict for two reasons: 1) Changed circumstances are used to determine whether a trial should be held, but not to determine the outcome of the trial; 2) Presumption of custody is not automatic awarding of custody.  The courts must still examine various factors, such as the history of domestic violence and whether the children were in danger from the other parent.  Regardless of the issuance of an FRO, the court must consider all the relevant factors rather than resorting to an automatic default.

Such clarifications are crucial in cases that involve highly sensitive accusations and multi-dimensional legal issues.  Domestic violence, in particular, is exceptionally complicated since an abusive partners is not always an unfit parent.  However, any and all custody modifications are complicated, even when they don't involve incidents of abuse.  That's why it's important to work with an experienced attorney who will advocate for your rights and help you take effective legal action.  For more information on domestic violence and custody rights in New Jersey, please speak with the attorneys of

Villani & DeLuca, P.C.