We’ve all heard the maxim “One Family, One Judge” in the context of matrimonial matters. The underlying premise is that one judge in the Family Part should hear the entire case because that judge is intimately familiar with the facts of the case, has observed the parties and their demeanors and perhaps has made credibility findings. One case even described this practice as a “matter of common sense.”
However, the situation becomes a little bit more murky in the context of domestic violence.
To provide some background:
Often an act of domestic violence results in 2 separate proceedings: one in family court and another in municipal court. This is because New Jersey’s Prevention of Domestic Violence Act references actual criminal offenses prosecuted under the criminal code. Simply put: the family part deals with the quasi-criminal action – the issuance of a restraining order utilizing the elements set forth under the criminal code – and the municipal court deals with the purely criminal action – the conviction for the actual violation of the criminal code.
With that in mind, does the family part have authority to make a determination as to the issuance of a final restraining order AND take jurisdiction over any resulting criminal action that may be pending in municipal court?
Judge Jones weighs in in the case of M.R. v. T.R.
In M.R., there were three cases that were simultaneously pending:
CASE #1: Wife filed a domestic violence complaint filed on July 2, 2014, alleging that her husband harassed her by coming toward her in a physically menacing fashion, to the point where she used pepper spray in self-defense;
CASE #2: Husband became the complaining witness in a municipal court action against the wife, alleging that the wife had assaulted him with pepper spray in an unprovoked fashion; and
CASE #3: Wife filed a complaint for divorce against the husband on July 21, 2014, who in turn filed a counterclaim.
Case #1, the domestic violence complaint, was ultimately dismissed by the Court, upon a finding that there was insufficient evidence to support the entry of a final restraining order against the husband. However, Case #3, the divorce action, remained pending in the family court. Case #2 likewise remained pending in the municipal court.
As part of the divorce action (Case #3), the wife requested that the court transfer and consolidate the pending municipal court action (Case #2) with the divorce action (Case #3). The husband opposed the transfer and asked that Case #2 remain in municipal court for adjudication.
Judge Jones considered the motion, which he ultimately denied. In doing so, he relied extensively upon R.5:1-2(c)(3), which states:
“[a]ny non-indictable offense or violation pending in the municipal court . . . may be transferred for trial and disposition to the Family Part pursuant to R.5:1-3(b)(2) if the gravamen of the offense or violation arises out of a family or family-type relationship between the defendant and a victim.” [Emphasis added.] R.5:1-2(c)(3). “Sub-paragraph (c)(3) permits transfer to the Family Part of all criminal and quasi-criminal matters pending in the municipal court where the gravamen of the offense arises out of a family or family-type relationship between the defendant and victim.” [Emphasis added.] See Comment 2.3 to R.5:1-2(c)(3).
As Judge Jones noted, only two unreported decision have touched upon this issue. The first, Brown v. Brown, 196 N.J. Super. 92, 94-5 (Chan. Div. 1984), involved the transfer of a municipal court complaint of harassment against a spouse made by her spouse.
The Brown Court ultimately granted the transfer, stating “[t]his court is familiar with the parties’ situations and is best suited to address related problems as they arise.” However, the Court emphasized that such a transfer is a matter of judicial discretion, to be considered on a case by case basis.
By contrast, the second case, State v. Hall, 203 N.J. Super. 423, 426 (Law Div. 1985), denied the transfer of the municipal case because there was no actual case pending in the family court at the time of the application to transfer.
Against this legal backdrop, the Judge Jones opined that to transfer the matter from municipal court to the family part would give rise to multiple legal complications and conflicts. Primarily, Judge Jones cited the prohibition against utilizing testimony in a domestic violence matter in a simultaneous or subsequent criminal proceeding under N.J.S.A. 2c:25-29(a). The spirit of the rule would naturally raise concerns if the same judge is left to consider both proceedings.
The Court concluded that because there is an inherent benefit of keeping litigation as free as possible from, at the very least, the perception of conflict and evidentiary confusion, there is “logical value” in avoiding the same judge hearing both the domestic violence action and the criminal action.
Moreover, Judge Jones highlighted the distinctions between the domestic violence actions, as follows:
(1) The domestic violence action in the family part is filed by the victim, whereas the criminal action in the family court is filed by the State of New Jersey.
(2) The burdens of proof in the two courts differ as well, with the former being decided by a preponderance of the evidence, and the latter being decided beyond a reasonable doubt.
(3) In the criminal proceeding, the defendant has the right to remain silent to prevent self-incrimination. However, in the context of a civil domestic violence proceeding, the adverse party may be called to testify against his or her own interest.
(4) In order for the domestic violence plaintiff to be issued a restraining order, he or she must meet a 2 pronged Silver test: (1) that an act of domestic violence occurred, and (2) that there is a need for a restraining order to prevent ongoing violence and to protect the victim from further abuse. The criminal court, by contrast, determines whether or not a defendant is guilty of an act of violence and enters a conviction accordingly. Typically, no civil remedies are addressed.
(5) In a domestic violence matter, a plaintiff may be represented by private counsel. In a criminal proceeding, the case may proceed with a criminal prosecutor. In that regard, there are different obligations to the defendant and there is a specific prohibition against a private attorney serving as a prosecutor.
(6) In a criminal action, there is a right to pretrial discovery. No such right exists, however, in a domestic violence proceeding, which typically is a summary proceeding. Discovery in a domestic violence matter is only granted upon application and in the discretion of the court.
(7) In a domestic violence proceeding, the case proceeds to a hearing under a very specific timetable – usually 10 days. There is no such deadline in municipal courts.
Judge Jones aptly stated that the distinctions in the two proceedings are the very reason that the prohibition against the use of testimony from the domestic violence proceeding in a subsequent criminal proceeding exist to begin with.
The Court concluded that “the concept of transferring a municipal court case to family court to be heard by the same judge…is fraught with potential complications, risks and legal pitfalls.” It was for that reason that the Court denied the motion and both cases proceeded in their original intended venues.
Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or firstname.lastname@example.org.