Submitted March 24, 2014
Approved for Publication July 28, 2014.
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.
Before Judges YANNOTTI, ASHRAFI and LEONE.
[437 N.J.Super. 59] LEONE, J.S.C.
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) [437 N.J.Super. 60] 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.
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.
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 [437 N.J.Super. 61] interfere with appropriate parental communication with" Father, were " likely to interfere ...