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NJ Family Legal Blog Pertinent Information As It Relates To New Jersey Family Laws

IS THE PREVENTION OF DOMESTIC VIOLENCE ACT CONSTITUTIONAL?

Posted in Domestic Violence

A Hudson County trial judge  has issued a very interesting decision recently regarding a litigant’s claim that the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to 35, is violative of the NJ and US Constitutions.

The argument was that because domestic violence proceedings may result in serious consequences by the issuance of a Final Restraining Order (i.e. possible jail sentence for future violations; removal of all weapons and inability to obtain weapons in the future; fines; registry on a list of offenders), the Chancery court with equity jurisdiction should not hear these matters.  The decision should rest with a jury in order to provide litigants with due process and the ramifications of a Final Restraining Order are outside the scope of the Chancery court’s jurisdiction.  He also argued that the standard of evidence was much lower in the Chancery courts then should be when determining these matters. 

Under the 1947 amendment to the New Jersey Constitution, the Law Division and Chancery Division’s roles were determined to be concurrent "when the ends of justice so require".  This is in step with the policy to create a uniform judicial system. 

The opinion found that Chancery courts do have jurisdiction to hear these matters because in sum, criminal and civil actions arising out of an act of domestic violence are treated as two distinct matters with the criminal action initiated by law enforcement for punishment of the crime on behalf of the public interest and the civil case initiated by the victim for a remedy of the private harm between the parties.  Further, none of the criminal penalties available for a crime of domestic violence are permanent and do not ensure that the defendant will not harm the victim once released.

As to the argument that a jury should be deciding these issues, the opinion goes on to state that jury trials would cause undue delay in providing necessary relief to plaintiffs.  This is in direct contravention to the Prevent of Domestic Violence Act, which was established to generate a prompt response in an emergency situation.

The defendant was successful in convincing the Court that the standard of evidence, a preponderance of the evideence (i.e. that it was more likely than not to be true), was too low and should be raised to that of clear and convincing evidence.  After a review of the case law of this state on the standard of evidence, the Court found that while some domestic violence such as those with objective signs of physical injury are easy to prove, others involving stalking, harassment, terroristic threats, etc. are not so easy to prove and require the judge to tread very carefully into those areas.

The defendant raised several other arguments regarding violations against the NJ and US Constitution, all of which were denied.

It will be interesting to see the aftermath of this decision.  Will other counties follow suit or will the matter be taken up once again on Appeal to create legal precedent?  We will have to wait and see but for the time being, the Prevention of Domestic Violence act does not violate a New Jersey’s citizen’s constitutional rights.