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

THE ‘RIGHT’ TO AN ATTORNEY IS NOT CREATED EQUAL

Posted in Domestic Violence

We have all heard at one time or another, whether in a movie or television show, a police officer inform a person of their right to have a lawyer appointed to them if they cannot afford one. As a general rule, the assistance of appointed counsel guaranteed by the Sixth Amendment for criminal matters, applies to civil proceedings, only if the defendant’s personal liberty is at stake (i.e., the penalty could result in incarceration). The question of whether parties are entitled to appointed counsel in domestic violence proceedings (civil proceedings) has been previously raised in New Jersey but not squarely addressed by our Courts. See Crespo v. Crespo, 408 N.J. Super. 25 (App. Div. 2009).  

Today, in D.N. v. K.M/K.M v. D.N., the Appellate Division took the onus of deciding this very question. In a reported decision (precedential), the Court concluded that parties to a domestic violence action (both the parties bringing the actions and defending against the actions) are not entitled to appointed counsel from the State, as the entry of a Final Restraining Order (and other related relief) does not result in a “consequence of significant magnitude” to warrant the appoint of a mandatory appointment of counsel.  The Court noted that the Prevention of the Domestic Violence Act, unlike the Criminal Code, is designed to remediate behavior and is not punitive in that it does not impose incarceration on those found guilty of domestic violence. 

Although incarceration may not be a penalty of domestic violence, there are still serious consequences to those found guilty of domestic violence, which include having your fingerprints and photograph taken to be included in a statewide registry. Other possible consequences include some or all of the following:

(1)        being restrained from all contact and communication with the victim or members of the

             victim’s family, N.J.S.A. 2C:25-29b(6), (7);

(2)        a modification of parenting time, N.J.S.A. 2C:25-29b(3);

(3)        a restriction on the right to purchase or possess firearms, N.J.S.A. 2C:25-29b;

(4)        being permanently remove the defendant from the marital residence, N.J.S.A. 2C:25-29b(2);

(5)        being required to complete various counseling programs, N.J.S.A. 2C:25-29b(5); and

(6)        paying civil penalties of at least $50.00, but not to exceed $500.00 N.J.S.A. 2C:25-29.1.

Based on the severity of the foregoing consequences, it is essential that when facing a domestic violence charge, you consult with an experienced attorney who can educate you. You may not be entitled to appointed counsel from the state, but consulting with an experienced attorney may be the best investment you ever make.

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Lauren E. Koster is an associate in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices in the firm’s Princeton, New Jersey office and can be reached at (609) 844-3027 or lkoster@foxrothschild.com.