An important area of the law with much development over the years, New Jersey has now created a (mostly) effective and nuanced system to address the insidious problem of domestic violence within family or dating units, while maintaining checks and measures to help insure that the law is used “as a shield rather than a sword.”
Domestic Violence Act – Overview
The Prevention of Domestic Violence Act (“DVA”) was enacted in 1991 in response to the New Jersey Legislature’s findings that domestic violence is “A serious crime against society with a large number of victims that were not receiving proper protection under the present laws” prior to its enactment. There is now a two-party system whereby a victim seeks a temporary restraining order (“TRO”) and then a final restraining order (“FRO”).
Indefinite Length of Final Restraining Orders
In New Jersey, a Final Restraining Order extends indefinitely unless extinguished by a judge after a formal hearing.
Confidentiality and Restraining Orders
The Act itself requires confidential statistical record-keeping, but the test for confidentiality is performed on a case-by-case basis balancing (1) the potential harm to the victim; (2) possible discouragement of the victim coming forward; and (3) the balance of 1st amendment confidentiality interests.
Definition of Victim Under the Act
(1) Any person who is 18 years or older;
(2) An emancipated minor who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member.
(3) Any person, regardless of age, 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; and
(4) Any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship (this cannot be applied retroactively).
The “Battered Spouse” Defense
This is a defense created in the murder case of State v. Kelly, (Supreme Court of NJ 1984) wherein a battered spouse may argue a form of “Self-defense” even if committed during a time where the victim’s life was not immediately in danger. For instance, when the Husband is sleeping. The Victim must argue that she (or he) was certain that if she didn’t kill her spouse, she would be killed after a long history of domestic violence. The Kelly case held that battered-woman’s syndrome was relevant to honesty and reasonableness of defendant’s belief that she was in imminent danger of death or serious injury and was appropriate subject for expert testimony (a very rare and somewhat controversial clause).
Jurisdiction and Venue for Issuing a Restraining Order
Jurisdiction
(1) Where the Plaintiff resides;
(2) Where the Defendant resides;
(3) Where the alleged violence occurred; or
(4) Where the parties reside if the alleged violence occurred outside the state.
Venue
(1) Where the alleged act of domestic violence occurred;
(2) Where the Defendant resides; or
(3) Where the Plaintiff resides or is sheltered.
10 Day Rule
Note: Under N.J.S.A. 2C:17-5-29a, the Domestic Violence Act requires that a final hearing be held within 10 days of the filing of a complaint…in the County where the ex parte restraints were ordered…but the 10-day rule does not preclude a continuance where fundamental fairness dictates allowing a Defendant additional time (due process).
Temporary Restraining Orders (TRO’s)
The three factors for the issuance of a TRO are:
(1) Does the Plaintiff qualify as victim (see above);
(2) Did the Defendant commit an act of Domestic violence?
(3) Is there a history of domestic violence.
The types of relief that may be available under a TRO include injunctions barring Defendant from returning to the scene, barring defendant from possessing firearms, no contact, granting victim exclusive use and occupancy of the residence, granting temporary custody of any child in common to the victim and providing for interim parenting time for defendant, granting temporary financial support.
The application for a TRO must be obtained upon sworn testimony from the victim, either personally in court or via electronic communication. The denial of a TRO by a municipal court does not bar the putative victim from seeking and receiving an emergency ex parte hearing de novo (new hearing) from the Family Part of the proper County Superior Court. The Defendant may also have a right to return to the scene while supervised to retrieve his or her personal belongings, but only buy order restriction time and duration and almost always with police supervisions.
The Domestic Violence Complaint
The Complaint must be filed either through the Superior Court, Family Part or on an emergent basis either through a Superior Court Judge or a Municipal Court Judge. Each Complaint must allege at least one cause of action for domestic violence. Generally a confidential Victim Information Sheet is also required to be filled out at the time of the filing of the complaint.
Discovery at a Final Restraining Order Hearing
Under R. 5:5-1 discovery at these hearings is only with Court approval upon a showing of “good cause.” This is why some attorneys refer to domestic violence trials as “The Wild West” or “Trial by Ambush.” There are generally no depositions or formal discovery actions. Discovery items you may wish to procure include relevant police reports, TRO transcript, complaints, 911 transcript(s), pertinent medical records, and potential subpoenas for any out of court witnesses.
Standard of Review/Standard of Proof
The standard for both TRO’s and FRO’s is “Proof by the Preponderance of the Evidence.” For criminal charges relating therefrom (such as contempt) the standard is beyond a reasonable doubt. All of the Rules of Evidence apply to both hearings.
Final Restraining Orders
Entry of a FRO requires the following three factors:
(1) Does the Plaintiff qualify as a “Victim” under the Act?
(2) Did the Defendant commit an act of Domestic Violence?
(3) Is there a History of Domestic Violence or does the Domestic Violence involve an Egregious Act?
The fourteen domestic violence offenses recognized by New Jersey include:
(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. The most common elements I see in my practice are allegations of harassment with assault coming in second. Definitions for harassment are the same as criminal harassment (domestic violence actions being considered quasi-criminal). A touchstone of harassment is demonstrating a “purpose of intent to harass” on the part of the Defendant. If there is a history of violence then an “ambiguous incident” may rise to the level of entry into a FRO; if not an “egregious action” is required. A history of domestic violence need not be proven by prior adjudications.
Appeals of Final Restraining Orders
Findings are binding on appeal when supported by adequate credible evidence. Great deference is thus generally given to the trial court judge’s determination given that such evidence is largely testimonial. Family Court Judge’s expertise in such matters is thus noted.
Types of Relief Offered by a Restraining Order
(1) Economic relief (temporary transfer of real/personal property, damages, support–but not equitable distribution);
(2) Custody/parenting time modification;
(3) All other relief appropriate to prevent further abuse;
(4) Barring future acts of domestic violence;
(5) Barring certain locations (home and work);
(6) Barring contacting the Victim;
(7) Barring entering a certain proximity near the victim;
(8) Modifying drop-off/pick-up schedule for parenting time;
(9) Barring weapons and issuing a search warrant for weapons;
(10) Ordering counseling;
(11) Vacating the marital residence.
Marital Torts (“Tevis Claims”)
Domestic violence may be utilized in a divorce lawsuit for seeking specific damages known as “Tevis Claims” akin to personal injury claims in the civil litigation setting.
Dismissal of Restraining Orders
FRO’s are permanent unless dismissed by a court. Court’s look to the “Carfagno Factors” to determine if a restraining order should be dismissed. These factors include: (1) victim’s consent; (2) victim’s fear of defendant; (3) Current relationship between the parties; (4) Number of contempt convictions, if any; (5) Defendant’s use of drugs and alcohol; (6) Defendant’s violence towards others; (7) Counseling; (8) Age and health of Defendant; (9) Whether Plaintiff is acting in good faith in opposing the dismissal; (10) Whether another jurisdiction has an order protecting the victim from the Defendant; (11) Any other relevant consideration why a restraining order should be dismissed. A Defendant moving for dismissal must also demonstrate the lapse of a year, good cause, and a substantial change in circumstances considered with the history. If the Plaintiff moves then good cause need not be shown but Plaintiff must demonstrate request is made voluntarily and without coercion. Conversely, contempt of a restraining order (whether a TRO or a FRO) can lead to a 4th degree crime.
Civil Restraints
Although domestic violence matters cannot be negotiated under the Law, Court’s may allow “civil restraints” to be entered into between the parties. Such an Order would have a no-contact provision but would lack the “teeth” of a formal restraining order should the defendant violate same. Civil restraints cannot be entered into on the domestic violence (“FV”) docket but rather on a concurrent proceeding (such as a divorce or legal separation action).
My past experience serving as the appointed municipal prosecutor in various towns has shown me first-hand that it is difficult for victims to push forward with charges in a criminal setting as well as in family courts. Make sure you take the appropriate steps to be safe if this portion of the book pertains to you or someone you know.
Partner with Carl Taylor, Esq.
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