NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Domestic Violence, Prenuptial Agreements, Child Custody

Previously, we blogged upon the Hudson County case of Crespo v. Crespo where the trial judge held that New Jersey's Domestic Violence statute was unconstitutional.  On June 18, 2009, in a reported decision, the Appellate Division reversed the decision of the trial court and found that the status was constitutional.

The trial court decision in Crespo was intriguing in that in 1992, the Appellate Division previously found the statute to be constitutional.  The Appellate Division in Crespo was similarly surprised that it's binding precedent was "side stepped." 

Notwithstanding, the Appellate Division re-affirmed that the lowest standard of proof, preponderance of evidence, was appropriate and constitutional in these matters, noting again the Legislative intent of protecting victims from domestic abuse which has been echoed by the New Jersey Supreme Court.  In short, the public policy in this regard, was and is clear. 

Stay tuned to see whether this matter is appealed to the New Jersey Supreme Court.

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When can one's well intentioned conduct cross the line into a form of domestic violence under New Jersey's Prevention of Domestic Violence Act?  That was the question addressed by the Appellate Division in P. O’D v. J. O’D, where it affirmed the trial court’s entry of a final restraining order against the defendant mother under the PDVA based on the trial court's finding that the wife harassed her ex-husband.  Two children were born of the marriage, and the parties’ Property Settlement Agreement (PSA) provided that the parties would equally share residential custody (2 or 3 weekdays and alternating weekends). 

The husband testified during a final hearing on a prior temporary restraining order that, starting in September 2007 for a 3-month period, the wife started calling him late at night and using profanity during their conversations. According to his testimony, there were a series of phone calls where the wife would keep calling until he would answer the phone. He further alleged, and the wife did not deny, that she started abusing alcohol at this time. On one night within the 3-month period, the wife threatened the husband’s well-being during her phone calls. A couple of days later, the husband was notified by the wife’s boyfriend that the children were in danger and that the husband should take them from her mother’s custody, which he did successfully. 

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 Penalties and new obligations for cyber stalkers are the subject of two bills in the New Jersey Assembly which  have been given renewed interest recently. At present, a stalking victim is entitled to a restraining order limiting contact to the victim from the stalker. Under Assembly Bill A-2143, the contact that the convicted stalker prohibited from making would include e-mails via the internet. This is to afford the victim an additional layer of protection against his or her abuser. In a related, bill, A-3348, an individual who is convicted of stalking would be required to provide the appropriate law enforcement agency with his or her e-mail address or username, along with any appropriate password. In the even that the individual fails to do so, they would be guilty of a fourth degree crime which is punishable by a term of imprisonment of up to 18 months and a fine of up to $10,000.

These two bills demonstrate the acknowledgement that electronic communications are no longer on the fringe of interaction and have become methods which are used (and abused) by individuals daily. To the extent that a individual stalks another, electronic communications are often a weapon of choice. These bills would attempt to close a loophole that currently exists in the law as it is currently written.

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When does electronic surveillance of another person constitute a violation of the New Jersey Prevention of Domestic Violence Act?  That was the question recently tackled by the Appellate Division in its unpublished decision, Kebea v. David.  The unmarried couple at issue was living together when, one evening, they got into a heated argument and Kebea told David to leave the apartment.  Kebea obtained a Temporary Restraining Order after David returned to the apartment and removed a few items he had purchased.  She ultimately voluntarily dismissed the TRO against David, who then purchased a software program by which he could learn about the contents of her emails to determine if she would lie to him about an ex-boyfriend so that he could end the relationship if he felt necessary.

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What seems to be a hot topic and one ripe for review for the Appellate Division is domestic violence and the entry of final restraining orders. I have posted several other blogs on this topic and yet again, the Appellate Division has issued an unpublished decision in the matter of F.R. v. E.B., decided April 6, 2009, A-4859-07T3. 

A.R. and E. B. were married and lived in Philadelphia. According to A.R. she was a victim of domestic violence perpetrated by E.B. on numerous occasions. After one specific incident, A.R. came to NJ with the parties’ child to stay with her mother. She received a TRO (Temporary Restraining Order) after she claimed E.B. called and harassed her while at her mother’s threatening to take the parties’ child from her and then showed up outside A.R.’s mother’s home and screamed for her and the child.

E.B. received notice of the final restraining order hearing three days before the scheduled hearing date. A.R. appeared with counsel. E.B. also appeared but argued that he had insufficient time to retain counsel for the hearing. Also, the first time that E.B. heard the allegations contained in the FRO was when the judge read them onto the record at the final hearing. 

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I have found that the most difficult harassment cases to prove under New Jersey’s Prevention of Domestic Violence Act are the cases in which there is no direct communication between the alleged victim and the alleged aggressor. However, it is not impossible for the victim to prevail and obtain a Domestic Violence Final Restraining Order so long as the acts alleged are presented to the Court properly. 

For example, one of the most difficult cases that I have had involved an ex-spouse calling the boyfriend of his former spouse, my client, during a three day period. The ex-spouse never called my client. Moreover, although he called my client’s boyfriend, the calls were never answered. It was imperative in this case to prove to the Court that the calls were being made for the intent to harass my client-- and not the significant other--and that the communications (or attempted communications) fell within the prohibited types of communications under the Domestic Violence Act. It was not an easy case but my client prevailed because the Court was presented facts that lead the Court step-by-step to a finding of an intention to harass via prohibited communications.

The Domestic Violence statute incorporates N.J.S.A 2C:33-4, “Harassment,” as an act of domestic violence when it is inflicted upon a person protected by the Act. Even when there is no direct communication or direct contact between the aggressor and the victim, the applicable provisions of the harassment statute still provides that a person commits an act of domestic violence if, “with purpose to harass another”, s/he “makes, or causes to be made, a communication or communications anonymously, or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm” or “engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person”. N.J.S.A 2C:33-4 subsection, (a) and (c).

Therefore, in the example used above, background testimony was provided to the Court that the defendant had continuously called my client for eight months at her work number and that on numerous occasions, plaintiff's counsel forwarded letters to defendant's attorney demanding that the calls cease.  Further, testimony was provided that my client had moved, changed her employment and changed her telephone numbers keeping her contact information confidential from her ex-husband for the purpose of cutting off all ties. Testimony was further provided to the Court that the ex-husband had access to her boyfriend’s contact information although the ex-husband had no relationship with the boyfriend whatsoever. The Court was also presented with testimony indicating that the ex-husband’s telephone number came up on Caller ID consistently during a three-day period. Testimony was also elicited from ex-husband that the only reason that ex-husband was calling the boyfriend was to discuss sensitive personal information about his ex-spouse that most people would view as not only personal but also potentially embarrassing. Based upon these facts, the Court found that although the calls were not answered and although the calls were not made to the victim directly, the ex-husband’s purpose in making the calls and attempting communication was to harass his ex-spouse. Because the calls were consistent during the three-day period and because ex-husband’s stated reason for the contact was to discuss personal information about his ex-wife, the Court found that he was engaging in prohibited communications pursuant to N.J.S.A 2C:33-4 subsection, (a) and (c).

In short, even without direct communication, a Court is still authorized to enter a Final Restraining Order under the New Jersey Prevention of Domestic Violence Act if the attempted communication was made with the intent to harass.   However, many litigants make the mistake of focusing only on the communication and often fail to present the facts underlying the communication.  Had my client merely testified that she was seeking a Final Restraining Order because her ex-husband called her boyfriend’s number on a number of occasions, it is unlikely that she would have prevailed because based on those facts alone the Court could not find an intent to harass nor could the Court have found that the unanswered telephone calls were communications made “in a manner likely to cause annoyance or alarm” or that ex-husband attempts at calling were “acts with purpose to alarm or seriously annoy such other person”. 

(As an aside, the ex-husband noted above filed an appeal of the Court’s entry of the Final Restraining Order which ex-husband lost.)

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Recently, the Appellate Division in the unpublished decision of A.V. v. A.V., Docket No. A-2045-07T1, decided February 18, 2008, reversed and remanded the trial court's denial of defendant-appellant's motion to dissolve a Final Restraining Order and award of counsel fees.

In this matter, the parties had been married for approximately 5 years. Two children were born during the marriage, although one is now acknowledged not to be the biological child of defendant. The domestic violence matter arose when defendant learned of plaintiff's extra-marital affairs in the summer of 2005. During a series of arguments regarding plaintiff's infidelities and defendant's discovery of them, the intensity of which rose until the parties got into a physical altercation. Defendant then obtained a TRO against plaintiff. Five days later, plaintiff filed a cross complaint and approximately one month later, the matter went to trial for the determination of an FRO.

At trial, the court entered an FRO against defendant. The parties then continued with their divorce proceedings. During the divorce, information came out, which contradicted other information and testimony plaintiff had given during the domestic violence trial. After the FRO was entered, plaintiff retained custody of the minor children, however approximately one year later, DYFS removed the children from plaintiff's home and placed defendant's biological child with him. Subsequently, the parties resolved the issue of custody and parenting time.

In November 2007, defendant filed a motion seeking to dissolve the FRO, in which he argued that he and plaintiff were in communication regarding their child and that there had been no problems since the FRO was entered two years ago. Defendant noted that plaintiff did not claim that she was in fear of him or that there was any reason to continue the restraints in the FRO. Plaintiff opposed his application arguing that if the FRO was dismissed, the cycle of violence would continue. She also claimed, without providing any evidentiary support, that defendant intended to jeopardize her immigration status and negatively impact her ability to regain custody of the other child removed by DYFS.
 

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The Appellate Division recently presented in an unreported decision an educational primer on the criminal act of “harassment” under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the “Act”), in Curry v. Curry, found here. In ultimately dissolving a Final Restraining Order entered by the trial court, the Appellate Division found that the evidence only established the existence of “domestic contretemps” during the course of a troubled marriage, insufficient to prove that harassment occurred under the Act. In so doing, the Appellate Division thoroughly reviewed the legislative purpose of the Act, how to establish harassment, and how the Act is not designed to protect against the common emotional difficulties that arise between parties during the course of a dissolving marriage. 

The factual scenario was relatively common – an argument occurred between a married couple when the husband believed that he had found direct evidence of the wife’s infidelity. The wife obtained a Temporary Restraining Order against the husband and, after a hearing, the trial court entered a Final Restraining Order against him, finding that he committed harassment under the Act. 

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In a recent unpublished decision from the Appellate Division, McAteer v. Guzenski, Docket No. A-1540-07T3, decided January 21, 2009, the Court held that N.J.S.A. 2C:25-29(b)(16) dictates that when an individual is found to have committed an act of domestic violence, a court may also issue an order prohibiting that individual from possessing any other weapon.

When domestic violence arises in a situation that is protected under the Prevention Against Domestic Violence Act, (i.e. marriage, dating relationship, living together, etc.) individuals will disclose what weapons he/she believes or knows the aggressor to have in their possession.  Thereafter, when the Temporary Restraining Orders ("TRO")  is served, a person's weapons are seized by the police department.  More often than not, when the Final Restraining Orders ("FRO") is entered, a judge will include a provision prohibiting the aggressor from retaining possession of those weapons listed.   If the TRO is  turned into an FRO , thus making the restraints permanent, the sheriff's department or local police authority will retain possession of these items.  At some point, they may even be auctioned for sale.

In this recent unpublished decision, the parties dated for approximately three weeks.  At the end of these three weeks, plaintiff advised defendant that she wanted to end the relationship.  Unsatisfied with her notification, defendant began engaging in acts which the trial court found to be harassment and which raised to the level that required the entry of an FRO.  These acts included telephoning the plaintiff's grandmother and threatening to call DYFS on plaintiff (consequently DYFS appeared the next day, however it was never proven that defendant did in fact make the call), calling and text messaging plaintiff at inconvenient hours, calling plaintiff names, and posting a message about plaintiff on his MySpace web page.  After a trial in this matter, where both parties were represented by counsel and the court heard testimony not only of the parties but of their witnesses as well, it was determined that defendant did in fact commit an act of domestic violence and that his actions warranted the protections of an FRO.  Inclusive in the issuance of the FRO, the court advised defendant that he was prohibited from possessing firearms and other weapons and that because there was a finding of domestic violence, there was an automatic prohibition against owning any firearms or other weapons.  The weapons involved in this case included martial arts weapons, i.e. a large sword, throwing spikes and stars, a crossbow, staffs, a spear, many knives and nunchucks. 

Defendant testified that he never threatened to hurt or harm the plaintiff and that he only used these weapons when practicing marital arts.  Nonetheless, the court ordered a prohibition against defendant carrying or owning these weapons as a result of the entry of the FRO.

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The decision of Tinfow v. Tinfow,  is an appeal from a post-judgment, final restraining order, against Mr. Tinfow for entering the marital home without prior written authorization from Mrs. Tinfow.                           

The parties had been married for fifteen years and had two children. In 2006, the Tinfows began a bitter and litigious divorce action. Throughout the divorce, Mrs. Tinfow had exclusive possession of the marital home.   During the divorce action, and just prior, Mrs. Tinfow filed two domestic violence complaints against Mr. Tinfow. Both domestic violence complaints were settled by Consent Orders, where Mr. Tinfow agreed not to enter the marital home and would not exit his vehicle when picking up the children for visitation. Notwithstanding the Consent Orders, Mr. Tinfow allegedly continued with a pattern of entering the marital home without authorization from Mrs. Tinfow.

On October 24, 2007, while the children were home sick from school and Mrs. Tinfow was at work, Mr. Tinfow entered the marital home allegedly to bring the children lunch. While at the home, Mr. Tinfow removed previously agreed upon property. Upon arriving home and after learning of Mr. Tinfow’s presence, Mrs. Tinfow filed for a temporary restraining order, which was granted. 

Before a permanent restraint can be ordered under the Prevention of Domestic Violence Act there must be proof of a predicate act under the statute by a preponderance of the evidence and a showing that the restraint is necessary to protect the plaintiff due to either a single egregious act or a pattern of behavior by the defendant. See Silver v. Silver, 387 N.J. Super. 112, 126 (App. Div. 2006).

In this case, Judge Thomas P.  Zampino, sitting in Essex County, ruled that the trespass by Mr. Tinfow was the predicate act. Judge Zampino found that Mr. Tinfow had committed criminal trespass, an act constituting domestic violence under N.J.S.A. 2C:25-19. Furthermore, the record showed that Mr. Tinfow’s trespass was not an isolated aberrant act, but rather part of a pattern of willful defiance of judicial Orders that was deeply unsettling to Mrs. Tinfow and threatened her right of privacy and well being.

The Appellate Division affirmed the findings by Judge Zampino, confirming the prior history between the parties, including two prior domestic violence complaints and past incidents when the Mr. Tinfow willfully entered Mrs. Tinfow’s home despite Court Orders and agreements to the contrary. 

Although under ordinary circumstances, one could argue that a single entry into the former marital home, especially when the other spouse is not present and thus in no direct danger, should not constitute an act of domestic violence such that to rise to the level of a final restraining order. However, in this instance there was a repeated history of trespass into the former marital home, despite the entry of prior Orders prohibiting this conduct. 

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The administrative office of the courts recently announced that law enforcement officials will have access to information on final restraining orders (FRO's) nationwide.  This access will provide an added layer of security for domestic violence victims who have left the state either temporarily or permanently.

How will this work? The courts are going to be working with the NJ State Police and the Criminal Justice Information Unit, in the division of law and public safety.  They will work together to transmit the FRO information into the National Crime Information Center (NCIC) database.

The National Crime Information database file exists to help police authorities and criminal agencies locate missing persons, apprehend fugitives, return stolen property and protect law enforcement personnel who may encounter these individuals.

Once all the FRO information from NJ is entered into the database, the information will be accessible to law enforcement agencies nationwide.  Through this project, domestic violence victims who travel or move to another state have the added assurance that the FRO issued in New Jersey will remain permanently in effect and enforceable nationwide.

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 The New Jersey Appellate Division recently held in In the Matter of the Expungement of the Criminal Records of H.M.H., that a person’s record containing an arrest and conviction for an act of domestic violence could be expunged.

The facts of the matter are straightforward – H.M.H. and his wife argued over their autistic son until H.M.H. struck his wife on her forehead with a closed fist that caused bleeding from the ring he wore. The police responded to the incident and H.M.H. ultimately pled guilty to an amended charge of simple assault, a disorderly persons offense. He was sentenced to one-year of probation conditioned upon male domestic violence counseling, no contact with the victim, payment of restitution and penalties and assessments. H.M.H. successfully fulfilled the conditions and had no subsequent arrests or convictions when he sought to have the arrest and conviction record expunged.

In granting the expungement request, the Court first considered N.J.S.A. 2C:53-14(b), which allowed it to deny H.M.H.’s request if “the need for the availability of the records outweighs the desirability of having a person freed from any disabilities as otherwise protected in this chapter . . . and the burden of asserting such grounds shall be on the objector.” The prosecutor argued that because N.J.S.A. 2C:58-3(c)(1) and the Lautenberg Amendment to the Federal Gun Control Act of 1968 established a public policy that persons who commit acts of domestic violence should not have hand guns, H.M.H.’s request for expungement should be denied so that law enforcement agencies would be aware of his history of domestic violence when reviewing an application for a gun permit. 

By contrast, H.M.H. argued that such a need was inconsistent with the intent of New Jersey’s legislature, which had failed to pass a law prohibiting the expungement of records containing acts of domestic violence despite the proposal of such a law during the prior six legislative sessions. The Court also noted a variety of other reasons for granting H.M.H.’s request. First, it noted that law enforcement agencies considering firearm licensing applications may not utilize expunged records in limited instances set forth by statute, including when determining whether to grant or deny acceptance into a supervisory treatment or diversionary program; for purposes of sentencing or setting bail; and for evaluating the granting of parole. Second, it reasoned that persons with expunged records are expressly required to reveal the information contained in such records when applying for a job with the judicial branch or with a law enforcement or corrections agency. 

Third, the Court determined that, based on the questions set forth on the application to obtain a firearms purchaser identification card that the application itself acknowledged that one convicted for a domestic violence offense could be licensed to own a firearm. Fourth, the Court determined that, because the Appellate Division’s opinion in State v. Wahl, 365 N.J. Super356 (App. Div. 2004), held that the Lautenberg Amendment provided that “if the conviction has been expunged or set aside, a person shall not be considered to have been convicted of such an offense,” expungement was available under state law as well in the absence of a specific bar to the contrary.

The Court added that, while a single act of domestic violence could, under certain circumstances, weigh against expungement, it would not deny H.M.H.’s request where the incident at issue had occurred more than ten years earlier and appeared to be an “aberration” in his life.

Although H.M.H.’s petition for expungement was granted, the Court’s rationale in so holding demonstrates that it believes that there are enough safeguards in place via statute and otherwise to protect society at large from persons with such convictions should that person seek to obtain a firearm. Without such safeguards, and perhaps in a scenario different from the single instance above, the Court very well might have ruled otherwise.

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Can an act of domestic violence by one parent against the other constitute sufficient “changed circumstance” to warrant a Court’s re-examination of an existing custodial arrangement? New Jersey law requires that a party seeking to modify a custody arrangement first establish the existence of such “changed circumstance” that affect the welfare of the child involved. Only after proving this threshold burden will a Court engage in a “best interest” of the child analysis to determine a custody award. The best interest analysis is based on the 14 factors set forth in N.J.S.A. 9:2-4.

Affirming a trial court’s order awarding primary residential custody of the parties’ nine-year old daughter to the plaintiff father, the Appellate Division in Chen v. Chen recently concluded that the mother’s act of driving over the father’s foot and dragging him for a few feet as he held onto the car in the presence of the daughter constituted a sufficient “changed circumstance” to trigger a “best interest” analysis. The father had filed a complaint after the incident under the Prevention of Domestic Violence Act (“PDVA”), N.J.S.A. 2C:15 to -35, resulting in the issuance of a Temporary Restraining Order wherein custody of the child was temporarily transferred to the father. A Final Restraining Order was subsequently entered maintaining the custody arrangement pending a full custody evaluation and hearing that ultimately resulted in the father’s designation as the primary residential custodian. 

In its affirmance, the Appellate Division rejected for three reasons the mother’s argument that the act of domestic violence could not constitute changed circumstances because the child was not physically subjected to the violence. First, the Court generally surmised that, “It seems obvious to us that domestic violence committed in the presence of a minor inherently implicates the child’s health, safety and welfare.” Next, the Court relied on the terms of the PDVA, which presumes that “the best interests of the child are served by an award of custody to the non-abusive parent” when determining temporary custody following an act of violence. Third, it rationalized that, because N.J.S.A. 9:2-4 deems this an act of domestic violence is a “critical factor” in determining custody, it, by correlation, also suffices to establish changed circumstances.  

The Appellate Division also affirmed the trial court’s best interest analysis based on proof of the mother’s domestic violence; her use of a wooden spoon to punish the child; her inflexible adherence to the parenting schedule; her failure to timely inform the father that she had relocated to New Jersey; and the child’s improved developmental growth and resolution of behavioral problems that manifested themselves while she was with her mother. Notably, the Court also rejected the mother’s charge of cultural bias stemming from the trial court’s conclusion that the values instilled by the father would continue to aid in the child’s development in a “twenty-first century United States,” since the trial court’s analysis was deemed proper and objective under 9:2-4.

Parents should keep their hostilities towards each other in check, as the Appellate Divisions’ opinion suggests that any act of domestic violence towards the other in front of the child will likely fulfill the changed circumstances threshold should a party seek to modify a custody arrangement. Parties should also be careful to abide by the terms of the PSA regarding custody, as the trial court (although not addressed by the Appellate Division) noted that even the mother’s failure to notify the father of her relocation to New Jersey with the child pursuant to the terms of the PSA also constituted changed circumstances justifying a best interest analysis.

EDITOR'S NOTE:  People should not forget that upon the entry of a final restraining order, there is a legal presumption that the victim should get custody.  Like all presumptions, this is rebuttable.  This presumption does not extend to civil restraints (i.e. a Consent Order in the matrimonial matter that is similar to a restraining order but is not under the domestic violence docket and not punishable by criminal contempt if violated).  That said, if there are true custody issues and a domestic violence matter arises, one must think long and hard about whether to settle the matter and enter into civil restraints.  - Eric S. Solotoff

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Mark Ashton, a partner in our Exton (Chester County), Pennsylvania office and the editor of our Pennsylvania Family Law Blog, wrote an interesting post entitled "The Dangerous Trend in Electronics" on that blog.

To read the complete post, click here.

The post, among other things, discusses how people can be bullied by their spouses and significant others by the use of emails and text messages. 

More and more, we are seeing emails and text messages attached as exhibits to motions and as evidence at domestic violence hearings and divorce and custody trials.  As one of my adversaries likes to say, the "E" in email is for eternal.  Put another way, when a person types and sends and email or text message, they create a piece of evidence that can be used against them.  While most of the emails and texts sent each day are benign, more and more we see people act extremely inappropriately using these methods.  Perhaps people are emboldened to be more brash because the communication, while direct, is not face to face.  As such, it seems that almost every week I an suggesting that an email communication be toned down because they may be too aggressive.  I am also telling people to limit the email discussions to factual and/or logistical discussions and not get into the nonsense, even if their spouse is doing so.

I have a case now where we have used a spouses emails against him and yet he continues with his aggressive, belittling and/or outrageous emails.  While this will ultimately provide a treasure trove of information if there is a trial, it also needlessly drives of the hostility and legal fees.  In another recent matter, a spouse was trying to use emails to drive a wedge between his wife and counsel. 

The bottom line is twofold:  (1) no one deserves to be bullied, even via email and text message, and the recipient of this type of abuse should take all necessary steps at self-protection and (2) litigants going through a divorce should be very careful about how they treat the other party in emails and text messages.

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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.

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A victim of domestic violence is often subjected to a life of terror and fear that her abuser will be around the next corner. The New Jersey Appellate Division has recently taken an important step in  efforts to protect the future of victims of domestic violence. In a case only referred to by its initials, the court relaxed the rule providing for the publication of an official name change. Usually, when an individual in New Jersey wishes to change his or her name, a notice must be published in a newspaper to put the "world" on notice. The reasoning behind this is that creditors and others will aware of a change as it is unlawful for an individual to change their name for the purpose of avoiding creditors, to avoid criminal prosecution, or for fraudulent reasons. The records of a name change application are generally available to the public.

In the case of The Application of E.F.G. to Assume a New Name , the Plaintiff had been a victim of long term, vicious domestic violence. Court records, police records and  her medical records including photographs demonstrated that her abuser had subjected her to life threatening violence and that there was a significant risk that he would cause additional harm in the future.

Wishing to begin a new life of safety away from her abuser, the Plaintiff sought to take a new name. However, she asked that she not be subject to the usual publication requirement and that the record of her application be sealed. She made this request in an effort to prevent her abuser from determining her new name and address. The Court noted the stated public policy of the New Jersey Legislature that “it is the responsibility of the courts to protect victims of domestic violence…by providing long term civil and criminal remedies…that are available to assure the safety of the victims and the public” Also, the Court echoed the words of the New Jersey Supreme Court in the case of Brennan v. Orban, 145 N.J. 282 (1996) when it said that “we believe that there is no such thing as an act of domestic violence that is not serious.” 

The Court  found that when faced with such a request, a judge must undertake an analysis of the facts and when an applicant has demonstrated a true and justifiable concern for her (or his) personal safety as a result of a history of abuse, that judge may relax the rules as necessary. In this case, the court determined that if it did not relax the rules, and if it forced the victim to publish her application, she would be denied “the one avenue to obtain peace in her life, and the opportunity to live without fear.”

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While statistically, 99% of all cases settle, some cases take longer than others to get there.  Moreover, some cases require the assistance of a third party to help one or both party or attorney get past whatever it is that is holding the case up from resolving itself.

I, for one, have been skeptical of mediation in a number settings.  The first is at the onset of a complex matter where one party is pushing for mediation and there hasn't even been the most basic exchange of information at that time, much less formal discovery.  I have even seen cases where the party with the documents will not provide them in advance of mediation and will only bring them to mediation and take them with him at the end.  The second setting that gives me cause for pause is when parties attend mediation without counsel and there is a great imbalance of power between the parties (consistent with the imbalance of power that permeated the parties' relationship).  In these instances, unless there is a strong mediator that will protect the disadvantaged spouse, I have often seen such mediations result in a "settlement", but one where the disadvantaged spouse got a "deal" that was neither fair nor reasonable, if not unconscionable.  The problem in these cases is that often, once there is an "agreement", the person that got the great deal refuses to concede anything.  Thus, a method meant to avoid litigation can often create litigation. 

However, in this day and age in New Jersey, the court mandates mediation at two junctures of the case (unless there is a domestic violence restraining order.)  The first is early on in the case when the parties go to custody and parenting time mediation conducted by court staff.  This is meant to ferret out the true custody dispute.  That said, I make sure that my client is prepared before they attend this mediation because it often results in a resolution of the issues and I want that resolution to be one that my client actually has considered in advance and is comfortable with.  As such, we often prepare a parenting plan, in advance, which deals with the regular parenting time, legal custody, holidays, vacations, etc.

The second mandatory mediation is economic mediation which takes place after an Early Settlement Panel.  Attorneys usually are required to attend with clients.  This is often the time when a case that is more than your run of the mill case will settle.  By this time, it is expected that most, if not all of your discovery will be done. Unlike the Early Settlement Panel where the panelists have a short time to consider the issues, the mediator can spend more time to flesh them out and more importantly, facilitate a dialogue and negotiation. 

In some cases, the impartial voice of the mediator helps one or both parties get past an issue that they are stuck on.  Put another way, when either the client's attorney has told the client time an again of a probable result, or if the attorney is presenting the strongest position regarding an issue as an advocate, the mediator, who has no axe to grind, may be just what is necessary to put the issue to bed.  In other cases that I have seen, sometimes one of the attorneys doesn't handle exclusively family law matters and/or is otherwise less confident.  In these cases, the mediator essentially can let the attorney know that the deal is fair.

I have been involved in cases where the parties were more than $20 million apart and seemed headed for a trial that would have lasted several months.  However, after 8 to 10 days of hard work at mediation, the case settled, saving both parties tens if not hundreds of thousands in legal and expert fees that would have been incurred at a trial.

The bottom line is that most people truly want to settle their cases in a fair way.  We always hear anecdotally that cases that settle come back to court far less often than cases that are tried.  We also hear that people that settle their cases are far more satisfied with the result than if they tried the case.  In a trial, the litigant gives up control of their life to a judge that doesn't know them and will only hear bits and pieces of their story - along with the hundreds of other cases they have.  Mediation with a skilled mediator, where the playing field is level, the parties both have all necessary information and the imbalance of power is kept in check, is excellent way to keep control of your life and resolve your matter in a fair and beneficial way.

Check back for future entries regarding arbitration and trial practice.  While most cases do settle, if litigation is required, we are skilled at handling matters that require a trial, as well.

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