fbpx

In enacting the Prevention of Domestic Violence Act (“PDVA”), the New Jersey Legislature declared that “domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all social and economic backgrounds and ethnic groups; that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence.” As a result, the Legislature intended “to assure the victims of domestic violence the maximum protection from abuse the law can provide.” N.J.S.A. 2C:25-18. For residents of New Jersey, attempting to escape the cycle of domestic violence by obtaining a restraining order can be one of the most frightening events of their lives. Statistics show that victims of domestic violence are at the greatest risk when attempting to escape their abusers.

In a different way, it can also be scary for defendants in restraining order proceedings when the allegations of abuse are false. Even the New Jersey Supreme Court has acknowledged that “courts must be wary of letting a complainant use the Domestic Violence Act merely to gain an advantage in a matrimonial proceeding.” Cesare v. Cesare, 154 N.J. 394, 416 (1998). The consequences of a final restraining order can be significant. Not only will the defendant be fingerprinted and added to the Domestic Violence Registry, but the final restraining order requires forfeiture of firearms (which can lead to termination of employment in some cases), can impact your custody rights, may prohibit you from returning to your home, may provide for monetary compensation to the plaintiff, and may require the defendant to attend certain counseling programs.

In the era of COVID-19, we must remember that victims of domestic violence are being quarantined virtually 24/7 with their abusers. As a result, the firm has seen a significant increase in the number of domestic violence proceedings. While domestic violence trials can be complex and full of surprises, the fundamentals are quite simple. This article will lay out four of the most important considerations in litigating domestic violence cases.

FIRST, a restraining order can only be granted to a victim of domestic violence as defined under the PDVA. Therein, the term “‘[v]ictim of domestic violence’ means a person protected under this act and shall include any person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present household member or was at any time a household member. ‘Victim of domestic violence’ also includes any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant. ‘Victim of domestic violence’ also includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.” N.J.S.A. 2C:25-19.

These requirements are jurisdictional, and as a result, you are prohibited by law from obtaining a restraining order against a person who does not fit into one of the above categories. If a person who does not qualify as a victim of domestic violence under the PDVA has improperly obtained a temporary restraining order, the defendant should consider filing a motion to dismiss.

SECOND, the defendant in a restraining order proceeding has the ability to file an immediate appeal of the temporary restraining order to the Superior Court (not the Appellate Division). “A[] [temporary restraining order] shall be granted upon good cause shown and shall remain in effect until a judge of the Family Part issues a further order. Any temporary order hereunder is immediately appealable for a plenary hearing de novo not on the record before any judge of the Family Part of the county in which the plaintiff resides or is sheltered if that judge issued the temporary order or has access to the reasons for the issuance of the temporary order and sets forth in the record the reasons for the modification or dissolution.” N.J.S.A. 2C:25-28. This bit of legalese may be difficult for non-lawyers to fully understand, but it essentially permits the defendant to seek modification or dismissal of a temporary restraining order prior to trial. For example, the defendant might request parenting time with his or her children pending the trial or, as suggested above, dismissal of the temporary restraining order on jurisdictional grounds. Similarly, if the plaintiff has been granted temporary financial relief, the defendant might seek modification or termination of such obligations. Although trials under the PDVA are supposed to be conducted within ten days of entering a temporary restraining order, that timeline is often substantially extended (especially in the era of COVID-19). Obtaining modification of the terms of a temporary restraining order can be critical.

THIRD, a final restraining order can only be granted if the defendant has committed a qualifying act of domestic violence. Under the 2006 Appellate Division case of Silver v. Silver, the burden of proof by a preponderance of the evidence (meaning more likely than not) rests with the plaintiff at trial. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). Therefore, the plaintiff must prove that: (1) the defendant committed a qualifying act of domestic violence; and (2) a final restraining order is necessary to protect the plaintiff from immediate danger or to prevent further abuse. That first consideration is important. All predicate acts of domestic violence are crimes, but not all crimes qualify as predicate acts of domestic violence. Under the PDVA, the list of predicate acts is limited to the following, N.J.S.A. 2C:25-18:

  1. Homicide;
  2. Assault;
  3. Terroristic threats;
  4. Kidnapping;
  5. Criminal restraint;
  6. False imprisonment;
  7. Sexual assault;
  8. Criminal sexual contact;
  9. Lewdness;
  10. Criminal mischief;
  11. Burglary;
  12. Criminal trespass;
  13. Harassment;
  14. Stalking;
  15. Criminal coercion;
  16. Robbery;
  17. Contempt of a domestic violence order;
  18. Any other crime involving risk of death or serious bodily injury; and
  19. Cyber-harassment.

Unless the plaintiff establishes that the defendant recently committed one of the above crimes, the temporary restraining order will be dismissed. That said, commission of a predicate act is not enough by itself to warrant entry of a final restraining order: “[T]he Legislature did not intend that the commission of one of the enumerated predicate acts of domestic violence automatically mandates the entry of a domestic violence restraining order.” Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006). There is another consideration.

FOURTH, “upon a finding of the commission of a predicate act of domestic violence, the plaintiff must consider whether to enter a restraining order. Although this second determination — whether a domestic violence restraining order should be issued — is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary … to protect the victim from an immediate danger or to prevent further abuse.” Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006). In making that second determination, the Court must consider the following factors, N.J.S.A. 2C:25-29(a):

  1. The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;
  2. The existence of immediate danger to person or property;
  3. The financial circumstances of the plaintiff and defendant;
  4. The best interests of the victim and any child;
  5. In determining custody and parenting time the protection of the victim’s safety; and
  6. The existence of a verifiable order of protection from another jurisdiction.

The Court may issue a final restraining order only if the plaintiff qualifies as a victim of domestic violence under the PDVA and has proven by a preponderance of the evidence that: (1) the defendant committed a qualifying act of domestic violence; and (2) a final restraining order is necessary to protect the plaintiff from immediate danger or further abuse. Nevertheless, “when the predicate act is an offense that inherently involves the use of physical force and violence, the decision to issue an FRO ‘is most often perfunctory and self-evident.'” A.M.C. v. P.B., 447 N.J. Super. 402, 417 (App. Div. 2016).

Whether you are seeking a restraining order or defending against one, please reach out to Shaw Divorce & Family Law LLC at 908 516 8689 to schedule a free consultation. We would be happy to discuss the facts, explain the law, and develop an aggressive strategy designed to maximize your odds of success in Court.

If you or someone you know is being subjected to domestic violence, please consider contacting the New Jersey Domestic Violence Hotline, which is available 24 hours a day and 7 days a week: 1 (800) 572-SAFE (7233). The New Jersey Domestic Violence Hotline provides confidential access to domestic violence information and services, including crisis intervention, referral, and advocacy.  The hotline is bilingual and accessible to the deaf and hearing impaired.

 

error: