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As family law practitioners who frequently represent parties in domestic violence actions, we are often confronted with clients who, having been the victim of domestic violence, seek to prohibit their spouse’s presence at any location where they will also be present. Until just recently, the law remained silent as to whether a restraining order could provide such broad prohibitions. On January 17, 2012, the legal silence ended by way of the matter of State v. S.K., Docket No. A-1488-10T1, which has been approved for publication and is, therefore, binding law upon the trial courts of our state. As established in S.K., a provision in a domestic violence restraining order that prohibits a defendant from “any other place where plaintiff is located” is not generally not enforceable as The Prevention of Domestic Violence Act does not authorize such non-specific restraints. N.J.S.A. 2C:25-17 to -35.

In addition to the more ‘common’ relief of barring defendant from plaintiff’s place of residence and employment, the final restraining order in S.K. went one large step further by prohibiting defendant from “any other place where plaintiff is located”. Over five years after the restraining order was entered, defendant attended the soccer game of the parties’ children at a local high school that plaintiff also attended. While plaintiff sat in the bleachers, defendant stood near the bleachers, watching the game. Upon seeing defendant, plaintiff telephoned the police and advised them that defendant was in violation of the final restraining order. At no time did plaintiff accuse defendant of communicating or contacting her in any way. No action was taken by the police at that time.

The day following the soccer event, plaintiff filed a “citizen’s complaint” against defendant for violation of the restraining order. In response, the police filed a formal complaint, charging defendant with “disorderly persons contempt” in violation of N.J.S.A. 2C:29-9b, as well as “petty disorderly persons harassment”, in violation of N.J.S.A. 2C:33-4a. Accordingly, defendant was arrested and processed and released from custody. Trial was held six months later, wherein the State offered defendant a plea agreement in exchange for serving no jail time. Defendant agreed to plead guilty to the contempt charge conditioned upon the State dismissing the harassment charge.

Finding in favor of plaintiff, the Appellate Court reversed plaintiff’s conviction and remanded to the trial court for dismissal of the complaint filed by the Sate and consideration of an appropriate amendment of the final restraining order to delete the invalid provision.

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The times, they are a'changing - at least when it comes to how the judicial system approaches harassment as an act of domestic violence in light of advanced technology used for communication.  In the newly reported (precedential) Appellate Division decision of L.M.F. v. J.A.F., Jr., the Court addressed the use of electronic communications, specifically text messages, as a form of harassment.  Those claiming an act of harassment based on electronic communications might not like what the Appellate Division had to say, as detailed further below, but the decision provides a breadth of noteworthy language in shaping what is an extremely sound, rationale and common sense methodology to approach such cases in the future.

As a refresher, harassment is defined by New Jersey statute as follows:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a. 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;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

Addressing the struggles faced by courts in addressing harassment as an act of domestic violence, the Appellate Division noted

The facts presented here exemplify the complexity of human interactions and the strain they place on the Family Part judges as they struggle to distinguish between the cases that merit judicial intervention and those that do not.

Further addressing such difficulties in the context of modern technology and the facts at issue, the Court first provided an online definition of "texting" from www.netlingo.com as:

[t]he act of typing and sending a brief, electronic message (less than 160 characters) via a wireless network to another person so that they can view the short message on any number of mobile or handheld devices.

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Harassment under New Jersey's Prevention of Domestic Violence Act can take on many forms, one of which, under a given set of facts and circumstances, can involve an individual placing a victim in fear of losing her job.  Recently we handled a matter where the defendant was contacting the victim's employer and threatening to tell the employer very private details about the victim's personal life.  Whether the victim would have actually lost her job was one thing, since, more importantly, she had a reasonable fear based on the defendant's harassment that it would occur.

The facts in J.J. v. J.M. were relatively similar (as each case carries its own details and nuances), as the Appellate Division affirmed in this unpublished (not precedential) case that the defendant's actions in placing his former girlfriend in fear of losing her job constituted harassment meriting issuance of a Final Restraining Order. 

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About a month ago, I blogged on a case that held that putting a GPS in a spouse's car was not an invasion of privacy because cars travel on public roads and there is no expectation of privacy.  That said, invasion of privacy is a tort so this case really did not address the domestic violence/stalking implications of the conduct.  In fact, at the end of the post, I said:

Now, should people going through a divorce take this as a green light to start placing GPS devices in their spouse's vehicle. Perhaps not. There have been some that have argued and some judges have found that that conduct would amount to domestic violence - perhaps harassment or stalking. Of course, that begs the question of how the alleged victim could demonstrate the requisite fear or be alarmed, if the did not know of the placement of the GPS and similarly, how it would be stalking if the person did not know that the GPS was recording their movements.  I have no doubt that there will be more to come on this.

Little did I know that more was going to come so soon.  That is, until I read L.J.V.H. v. R.J.V.H., an unreported Appellate Division opinion decided yesterday.  In that case, the court found that the putting a GPS device in an ex-wife's new boyfriend's car was stalking and thus domestic violence. 

Apparently, this was not the defendant's first foray into the use of a GPS.  At the commencement of the original divorce a year prior, the defendant had put a GPS on the wife's car.  She obtained a TRO which was ultimately resolved by a consent order in the divorce case for restraints, including restraints on stalking.

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As technology progresses, the use of it rears its head during divorce cases.  One such form of technology is the use of a GPS in a spouses vehicle.  In a reported (precedential) opinion decided on July 7, 2011, in the case of Villanova vs. Innovative Investigations, the Appellate Division affirmed a trial court's granting of summary judgment, effectively dismissing a husband's invasion of privacy claim.

In this case, the wife , in the midst of divorce proceedings, hired a private investigator to follow her husband.  The private investigator later suggested that the wife put a GPS device in the family vehicle driven by the husband and she did.  She later used the findings in the divorce case.  During the divorce case, the husband amended his divorce pleading to seek invasion of privacy damages against the wife.  He also tried to add the defendant's in this case, the private investigator as a defendant in the divorce case but the court would not allow that.  The husband ultimately abandoned his tort claim against the wife in their settlement but reserved his rights to pursue his claim against the private investigator.

The invasion of privacy claim in the case against the private investigator was ultimately dismissed because the court found that there is no expectation of privacy driving over public roads. 

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This post was written by Melissa M. Ruvolo, a new Family Law associate, in our Roseland office, and soon to be an official contributior to this blog.

Our blog frequently features discussions regarding what constitutes domestic violence to warrant the issuance of a Final Restraining Order (FRO). Perhaps the most frequently alleged “predicate act of domestic violence” is harassment under N.J.S.A. 2C:33-4. What may constitute “harassment” was recently raised in the unpublished Appellate Division decision of A.B. v. L.S.M. decided on May 6, 2011.

The parties were unmarried but had been living together for almost four years. They had two daughters – a 3-year old and a 22-month old. During an argument, the defendant called the plaintiff a “b-tch” and the plaintiff admitted she may also have cursed and yelled at him. The defendant attempted to leave the home but while doing so, got a flat tire. When he tried to fix it with a car jack, the plaintiff twice tried to remove the jack from under the car and the defendant pushed her shoulders each time. She threw the daughter’s sippy cup at his face and broke his nose. Both parties applied for temporary restraining orders, which were dismissed. The defendant eventually moved out of the home and parenting time was ordered by the Court.

Two months later, the defendant went to the plaintiff’s home and knocked on her bathroom window, pleading to speak with her. The plaintiff refused. On the way home from plaintiff’s house, the defendant sent her an apologetic text message stating that he had no idea how much he had hurt her and would leave her alone.

Several days later, when the defendant went to the plaintiff’s home to pick up the children for parenting time, he asked to speak with her. He told her he “really missed her” and wanted to “hug and kiss her.” She responded that she didn’t want to talk to him or “have him touch her.” Later that evening, the defendant sent a text message to the plaintiff claiming the children forgot a teddy bear and blanket. She offered to bring them to his home and he agreed. When the plaintiff arrived at the defendant’s front door, he told her the children were already asleep, leading her to believe that the entire incident was a ploy to get her there. According to the plaintiff, the defendant grabbed her to prevent her from leaving and she told him not to touch her. The plaintiff’s friend, who was waiting in the car, witnessed the defendant give the plaintiff an unwanted “bear hug.”

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Lately, it seems as if everywhere I turn I am representing a party in a domestic violence matter, whether in relation to or separate from an ongoing divorce matter.  With these recent experiences fresh in my mind, I thought I would take the time to blog about the lawyer's role in representing a defendant in such matters.  While it is easy to sympathize with the victim, oftentimes it is the defendant who is falsely accused or caught up in a situation where the victim is trying to get a "leg up" over the other party in the context of a divorce. On of our prior post entited the The Abuse and Misuse of the Domestic Violence Statute, published almost 2 years ago, is perhaps our most commented on post.

Whether the person is the victim or defendant, each passing moment is critical in the compressed time between the filing of the domestic violence complaint and the final hearing to determine whether a temporary restraining order should be converted to a final (permanent) restraining order.  I paraphrase one recent client's opinion as to his wife obtaining a TRO against him - with one call by her to the police, his entire life began crumbling before his eyes as his family and career had been put at risk.  

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The usual result after a domestic violence trial where the parties had been living together at the time of the entry of the Temporary Restraining Order (TRO) is that a Final Restraining Order (FRO) will be entered and the defendant kept out of the home, or the TRO will be dismissed and the defendant would be free to move in.  What usually does not happen, and in the majority of cases cannot happen, is that the trial judge dismissed the TRO but Orders the defendant out of the home anyway.  However, that is exactly what the trial judge did in the case of C.R. v. A.R., an unreported (non-precedential) Appellate Division opinion released on May 5, 2011. The Appellate Division disagreed that this was proper in this case and reversed.

After the trial, the trial judge dismissed the domestic violence complaint, finding that the evidence did not
demonstrate the occurrence of any acts of domestic violence. However immediately upon explaining why the complaint should be dismissed, the trial judge stated the following:

Now, I am somewhat troubled by what [Abby] indicated on the stand. And I think she, in a way, was conveying a message for all the children, and whether she felt, since she's the oldest and the adult, that she should be the spokesperson for all the girls. But it's clear that they don't want the parents living together.

And I —— I tend to agree with them. I don't think it would be in the parents' best interest to be living in the house together, in light of what's been going on.  So, since I do have the matrimonial act case in front of me, I am going to enter civil restraints. And the bottom line is I am going to prohibit [Alan] from resuming to reside in the house. And that's on a temporary basis and without prejudice, but I think it would be in the best interests of the girls if that happened right now, especially in light of the fact that [Abby's] going to be leaving shortly, will be out of the country, and I —— assume that she has somewhat been the —— the leader or the caretaker for the girls while this has been going on for the last two months. So, [Alan], I am not going to allow you back in the house to live.

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To obtain a Final Restraining Order, a claimant must, among other things, establish that one of the predicate act of domestic violence actually occurred under N.J.S.A. 2C:25-19.  Notably for the purpose of this blog entry, theft is not one of those predicate acts.  The question then begs - can theft be a form of domestic violence as a component of a claim that one of the actual listed predicate acts occurred?  As recently addressed by the Appellate Division in E.M.B. v. R.F.B., a new published (precedential) decision, the answer could be "yes."

In E.M.B., an elderly mother filed a domestic violence complaint against her 56-year old son, with whom she resided.  Mom claimed that Son had engaged in an act of domestic violence by stealing her car keys, cell phone, bank book, money and some jewelry from her bedroom.  Based on these factual details, and Mom's testimony, which the trial court found credible, a Final Restraining Order was issued based on a finding that Son harassed mom. 

In reversing the trial court, the Appellate Division broke its decision down into two parts.  First, it concluded that theft in itself is not a predicate act under the Prevention of Domestic Violence Act and, as a result, a Final Restraining Order could not be issued on a claim of theft alone.  The Appellate Division then went into a more detailed analysis as to whether the acts of theft could be classified as an act of harassment.

As to one comment made by Son that Mom was a "senile old bitch," the Appellate Division found that, upon a review of the context and surrounding circumstances, while the phrase was upsetting to Mom, there was no purpose to harass behind the statement and no violation under either subsections (a) or (c) of the harassment statute.  The Appellate Division made a brief, yet interesting commentary on the constitutional implications of restricting speech in the context of the harassment statute, noting that because the First Amendment "permits regulation of conduct, not mere expression[,]" the speech must have a "specific intention [of] harassing the listener."  Mere expressions of opinion uttered through the use of offensive language is not enough to establish harassment.

As to the acts of theft, even if they could be considered a course of conduct, the Appellate Division concluded that there was a lack of proof that Son was motivated by a purpose "to alarm or seriously annoy" as required by subsection (c).  To that end, the Appellate Division found no evidence that the theft was anything more than the son taking Mom's property for his own use.  As to the prior history of domestic violence aiding the court in finding the occurrence of a predicate act of harassment, the Court concluded that prior incidents of theft could not be relied upon without proof that the thefts occurred with a purpose to harass Mom.  As a result, the Final Restraining Order was reversed.

While we have blogged about the somewhat difficult requirement of proving a "purpose to harass" in the past, E.M.B. is interesting in its constitutional analysis and review of the harassment statute in the context of theft.

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Do I have to continue living with him during the divorce?  Can I force her to leave?  Can I just move out?  If I move out, can I take the children with me?  These questions arise during the course of almost every divorce proceeding, and the answers are often not what people want to hear.

In New Jersey, the general answer to whether you can "make" the other party leave the home during the divorce is "no," except if that other party commits an act of domestic violence that results in a restraining order.  Other than that, the options are limited.  For instance, there exists what is known amongst New Jersey family lawyers as "Roberts" relief, allowing a court to Order the removal of a spouse without an event of domestic violence, so-named after an older case that many courts choose to no longer even follow in light of current domestic violence laws.  We were recently successful in obtaining one spouse's removal from the marital residence pursuant to Roberts, but the circumstances there were so severe that such relief was warranted to prevent irreparable harm from happening to the children. 

With such limited options, often the only choice for parties is to continue living together during the divorce.  If the parties are able to get along and co-exist, recognizing that children living in the home will potentially be impacted long-term by what goes on in the home during the proceedings, problems are less likely to arise.  By contrast, however, if the matter is acrimonious, there can be few things worse than having to live together, especially if the matter drags on for months, if not years.  During one matter in which we were involved, it took almost three years before the parties ultimately settled.  During that time, the parties continued to reside in the marital home together with their young children.  By the time the matter was complete, one parent had completely alienated the children against the other parent, reunification therapy was necessary and the parties were completely unable to be near each other, let alone communicate in a rational manner.  While filing a motion to address such circumstances is more than appropriate, there is only so much Court intervention can do when it is not there to oversee the day-to-day occurrences in the marital home.

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Previously, I have blogged on the issue of domestic violence and the NJ Prevention Of Domestic Violence Act.  Our courts have carefully scrutinized this Act and its consequences, even determining whether and under what circumstances the issuance of a final restraining order can violate one's right to due process.  Unfortunately, the issue of domestic violence arises all too often in family courts.

The recently published Appellate Court decision of C.M.F. v. R.G.F. arose from an appeal after the trial court issued a final restraining order against an ex-husband.  The act of domestic violence in question was found to be an act of harassment committed against the ex-wife while at their child's sporting event.  The main allegation was that the ex-husband screamed and yelled obscenities and other unpleasantries aimed towards his ex-wife.

These parties had gone through a long and tumultuous divorce.  Ironically, in 2007 they agreed to parenting time arrangement for their children.  They'd each reside in the marital home on a 50/50 basis, with one party living in the home for 3 1/2 days/week with the children and leaving 1 hour before the other party arrived and then alternating.  This system seemed to work and avoided the parties having to see each other for quite some period of time.

In January 2009, after filing motions seeking to each have sole possession of the home with the children, an order was entered granting wife possession.  The husband was to continue with the same amount of parenting time but to take place out of the marital home.  On the day the order was received, wife text messaged husband to let him know what was ordered and to advise that she'd be taking their children to their basketball game and he could pick them up there.  She would also leave the children's overnight bag on the porch for husband's retrieval.  At some time later that evening, husband appeared at the home and a verbal altercation began between the parties.  Wife called the police who seemingly diffused the situation at that time.

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The protections afforded by New Jersey’s Prevention of Domestic Violence Act are deliberately liberal for the benefit of abuse victims. Those protections, however, have seemingly expanded to an even greater degree under a new published (precedential) decision from the Appellate Division released on January 26, 2011. In S.Z. v. M.C., the Appellate Division ruled that an adult male visitor who resided at the plaintiff’s home for less than a year constituted a “household member” as defined by the Act.

Briefly, the plaintiff had testified that defendant, who was a bookkeeper for plaintiff’s business in need of a place to live, resided in plaintiff’s home with plaintiff, his wife and three children from October 2008 through April 2009. Plaintiff claimed that defendant was engaging in acts of harassment and stalking against him under the Act, adding, important to the Court’s conclusion, that he was also not in a “dating relationship” with defendant, as that term is defined under the Act.

The trial court declined to exercise jurisdiction, finding that defendant was not a “household matter” under the Act because he was akin to a mere “social guest” of a “transient,” rather than permanent status in plaintiff’s household. As a result, the trial court concluded that the parties lacked the “familial, emotional and financial ties” between them that would merit the Act’s protection.

The Appellate Division disagreed, finding that defendant was a “household member” under the Act, similar to a college dormitory suitemate, which was found to be a household member in another matter relied upon by the Court in its decision. Rather than focusing on the duration of time the parties spent together, which the Court found sufficient nevertheless, the Court more notably focused on the “qualities and characteristics” of the parties’ relationship, and how such qualities and characteristics made plaintiff susceptible to defendant’s abuse. 

The Appellate Court’s decision suggests that other individuals one would previously not consider to be “household members” would now fall under the Act, such as nannies, au pairs, housekeepers, and in-home care providers. Thus, the Act’s broad protections for the benefit of victims have appeared to expand even further than before.

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“He pops up everywhere I go; I am going to take out a restraining order against him for harassing me;” “she is calling me non-stop; I’m going to take out a restraining order against her.”

I hear these phrases all too often, from clients, from friends, and even from people on the street. They want to take out restraining orders against friends turned enemies, casual encounters turned habitual stalkers, and lovers now scorned and bitter. Often people are dismayed, however, to hear that in New Jersey, you simply cannot take out a restraining order against just anyone. Specifically, the New Jersey Prevention of Domestic Violence Act, enacted by the Legislature in 1991, only allows the issuance of a restraining order where a person, regardless of gender, has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member. Also included is any person, who has been subjected to domestic violence by a person with whom the victim has a child, or with whom the victim anticipates having a child, if one of the parties is pregnant as well as a person with whom the victim has had a dating relationship.

With regard to the “dating relationship” requirement, and indeed, generally, the Act has been construed very broadly in accordance with the Legislature’s overarching goal – namely, to protect victims against further acts of domestic violence. For instance, in J.S. v. J.F., A-2552-08, the Appellate Division held that a paid escort is a “date” under the Act. The Court elaborated upon its decision as follows:

"Experience suggests that most claims of a dating relationship turn on what the particular parties would view as a 'date,'" wrote the Judge. "Accordingly…courts should vigilantly guard against a slavish adherence to any formula that does not consider the parties' own understanding of their relationship as colored by socio-economic and generational influences."

While the above definition may reasonably lead to the conclusion that the definition of a “dating relationship” under the Act is boundless, recently, the Appellate Division came out with a decision to the contrary. Specifically, in last month’s decision of C.K. v. A.P., A-20-2-9851, the Appellate Division found that a “casual” relationship was not sufficient so as to constitute a “dating relationship” under the Act which would warrant the issuance of a Final Restraining Order. In C.K., the parties had a casual relationship from approximately November or December 2006, to approximately April and July 2006. At trial, C.K. testified she would "hang out" with A.P. and chitchat. A.P. testified along the same lines – i.e., that the two never dated. He stated they only had a friendship that lasted four months. They had no sexual relationship and were not intimate. After almost two years passed from the end of their relationship, in 2008, A.P. made contact with C.K. (the Appellate Division did not state what the contact consisted of), which in turn caused C.K. to take out a Temporary Restraining Order against A.P.

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New Jersey is certainly a melting pot if people of different races, religious and cultures.  What may be normal or acceptable in one religion or culture, may not fall within the acceptable laws or mores of our society.  On July 23, 2010, the Appellate Division decided the case of S.D. v. M.J.R. which was a reported (precedential) opinion addressing just this issue.

In this case, the parties were citizens of Morocco and practiced the Muslim faith.  They wed in Morocco in July 2008 in an arranged marriage when the wife was 17 and shortly thereafter, came to NJ for the husband's employment as an accountant.  Not long after, the wife sought a restraining order alleging harassment, assault, criminal restraint, sexual assault or criminal sexual.  The trial judge found that harassment and assault occur ed, i.e. acts of domestic violence occur ed, but that the wife did not need a restraining order for her protection.  Part of this was because he believed that there was a no contact order in connection with the corresponding criminal case and part because he thought that the parties would have little reason to see each other any more (a curious finding because the alleged sexual assault resulted in a pregnancy and there was going to be a custody litigation in Morocco.).

Despite stating that unwanted sexual relations occur ed, the trial judge did not find sexual assault or criminal sexual conduct to have been proven, stating:

This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited contact.

In other words, the judge found no criminal intent because religious custom clashed with the law. The Appellate Division reversed finding that the only necessary intent was to commit the sexual act, not the intent to commit a criminal act. Put another way, the fact that his religion may have permitted the conduct does not justify it legally. As such, the denial of the Final Restraining Order was reversed and an FRO was entered.

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On June 28, 2010, the Appellate Division released the unreported (non-precedential) opinion in the case of "O.R. v. H.S."  In this case, the Appellate Division reversed the trial court's Order, rendered without a plenary hearing and where there were disputed facts, granting the defendant joint legal custody. 

In this case, the parties were never married. While the plaintiff was pregnant with the parties' child, she obtained a domestic violence final restraining order against the defendant.  Four years had passed and the parties were now in court dealing with emergent custody and parenting time issues.  The defendant's attorney requested that joint legal custody be ordered and plaintiff's attorney objected, contradicting defendant's account of his support of the child and noting defendant's history of drug use.  Plaintiff also noted the FRO, her fear of the defendant and that defendant presented no proof regarding his relationship with the child.  Notwithstanding, the Court issued an Order granting the parties joint legal custody and designating the plaintiff the parent of primary residence.

Plaintiff appealed and the Appellate Division reversed noting that a decision like this, where there was contradictory information presented, required a plenary (evidentiary) hearing.  The Appellate Division also noted that the parties' relationship had been strained for year, as noted by the FRO, and that along with the FRO goes a presumption in favor of awarding custody to the non-abusive parent.  In addition, the Court noted that the plaintiff's fear as well as the defendant's drug use need to be considered at the hearing. 

This case reminds us of two things.  First, court's cannot decide major issues without having plenary hearings if there are material facts in dispute.  Second, court's must be mindful of findings of domestic violence when addressing the issue of custody, including legal custody, considering the statutory presumption of custody favoring the non-abusive parent.  Fundamental to the notion of joint legal custody is the parties' ability to communicate and cooperate which is why a review of the history of domestic violence is so important.

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While in the past we have blogged on the topic of what acts constitute domestic violence, a blog about how trial judges approach and analyze whether or not a retaining order is necessary seems appropriate. Recently, in the unpublished decision of L.N. v. B.R.S., the Appellate Division noted that after the Court finds that an act of domestic violence occurred, the Court must take a “stop, look, and listen approach” in determining whether a domestic violence final restraining order should be entered. In this dual-element test, entry of a domestic violence restraining order is not automatic if the plaintiff proves an act of domestic violence occurred. Silver v. Silver, 387 N.J. Super. 112 (App.Div. 2006); Corrente v. Corrente, 281 N.J. Super. 248 (App.Div. 1995). The plaintiff must also prove that issuance of a restraining order is required to protect the plaintiff from future acts or threats of violence.

Assuming that a plaintiff has proven that an act of domestic violence has occurred, what analysis does the Judge take in determining whether or not a restraining order is necessary to protect the plaintiff from further domestic violence? The Courts must look to the Prevention of Domestic Violence Act which provides:

The Court shall consider but not be limited to the following facts:

(1)        The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

(2) The existence of immediate danger to person or property;

(3) The financial circumstances of the plaintiff and defendant;

(4) The best interests of the victim and child;

(5) In determining custody and parenting time the protection of the victim’s safety; and

(6) The existence of a verifiable order of protection from another jurisdiction.

N.J.S.A. 2C:25-29 (a); See also Silver v. Silver, 387 N.J. Super. 112 (App.Div. 2006).

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In the recent published decision of Crespo v. Crespo (A-28-09, decided February 18, 2010), the New Jersey Supreme Court upheld in a 7-0 decision the constitutionality of New Jersey’s laws against domestic violence. The Prevention of Domestic Violence Act, N.J.S.A. 2C25-17 to -35, is the law that governs domestic violence cases arising in NJ. The act is found in section 2C of the New Jersey Statutes Annotated, which is the criminal section. Notwithstanding that domestic violence is found in the criminal section of the State's statutes, the rights and procedures afforded those individuals who are accused of domestic violence are not the same as those afforded individuals accused of other crimes. 

In Crespo v. Crespo, Mr. Crespo appealed the issuance of a domestic violence final restraining order ("FRO") against him, alleging the Prevention of Domestic Violence Act violated his constitutional rights, including: (1) not being afforded certain procedural rights at trial – including no jury, a trial be held within 10 days, and limited discovery; (2) the preponderance of evidence standard was not the correct standard – it should require clear and convincing evidence; and (3) once a final restraining order was entered – seizure of his firearms violated his Second Amendment right to bear arms.

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We have previously blogged about the broad protections attached to the New Jersey Prevention of Domestic Violence Act.  However, can a victim alleging domestic violence only having occurred in another State come into New Jersey and seek the Act's protections?  The short answer is - yes.  The question essentially becomes one of jurisdiction - do the New Jersey courts have the power to hear and rule on the subject matter of the case (the domestic violence alleged) as well as over the person alleged to be the aggressor?

Within recent years, the Supreme Court of New Jersey essentially established that it has jurisdiction over the acts of domestic violence itself (the subject matter) even if the only acts alleged to have occurred took place outside of New Jersey.  This appears to be the case even where the purported aggressor has done nothing to pursue the victim within the State's borders, including not showing up for any court hearing held in New Jersey with respect to the domestic violence allegations. 

The question of whether the court has power over the aggressor, however, is a bit trickier, as the victim must establish that the aggressor has established "minimum contacts" with the State of New Jersey from his or her own purposeful conduct - not solely the actions of the victim.  The aggressor must reasonably expect that, by his own actions, he could fairly be brought into a New Jersey court.  Thus, the victim's act of fleeing into New Jersey and alleging acts of domestic violence that occurred outside of the State is not enough to establish that New Jersey courts have personal jurisdiction over the alleged aggressor.

Despite the broad protections of the Act designed to provide aid to victims, these fundamental, constitutional notions of fairness cannot go ignored.  While the victim seeks the protections of New Jersey's law, he or she can also seek the protections of the law of the State where the alleged domestic violence occurred, without issue as to whether the court there has power over the aggressor.  This way, the victim is not left without protection and the aggressor is not essentially deemed to have "purposefully availed" him or herself of the rights and privileges of every state.

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The Prevention of Domestic Violence Act, NJSA 2C:25-17 to 35, is the law that governs domestic violence issues in New Jersey, including the issuance of Temporary Restraining Orders (“TROs”) and Final Restraining Orders (“FROs”). The Prevention of Domestic Violence Act was enacted to protect victims of domestic violence. Unfortunately, some individuals abuse the protections offered by the Domestic Violence Act and use it as a weapon in divorce proceedings. While many times the issuance of an FRO is appropriate, there are other times when it is clear that the Prevention of Domestic Violence Act has been abused.     

If a person is a victim of domestic violence, they can obtain a TRO by contacting the local police (at anytime) or going to the county courthouse (during business hours) and explaining the circumstances by which they have been abused. At that time a judge will determine if the facts warrant the issuance of the TRO. If the judge decides that the conduct is sufficient to warrant the TRO, the accused alleged abuser will be served with the TRO, which will order the individual not to contact the victim or anyone else that needs protecting, which may include children, family members, friends, etc. Once the TRO is issued, an FRO hearing is scheduled shortly thereafter.   The FRO hearing is before a Superior Court Judge and will be conducted at the county courthouse. At the FRO hearing, a judge will determine if an FRO is necessary to protect the alleged victim of the domestic violence or if the TRO was incorrectly issued and no FRO is necessary. While the TRO is usually issued ex parte or without any input from the alleged abuser, at the FRO hearing the alleged abuser has the opportunity to testify, call witnesses, present evidence, and most importantly be represented by an attorney.   

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Every year at about this time, you hear a supposed "fact" that Super Bowl Sunday is the biggest day of the year for domestic violence.  I even saw something on this this week on either Twitter or some news service.  I figured that I was use this blog to pass along a public service announcement about this scourge to give a heads up to potential victims.

Funny thing is that when I went to research this, I found several articles suggesting that this was really urban legend.  No less than Snopes, the debunker of all rumors and urban legends says that this "fact" is simply not true.

I am not trying to make light of this or domestic violence in any way but what is true?  Well, what is true is that the use/abuse of alcohol often plays a role in domestic violence.  Common experience tells us that there is a lot of drinking when watching the Super Bowl.  In fact, people who don't typically watch football may attend a Super Bowl party where alcohol is being served.  One need only watch the glut of Super Bowl beer commercials to see the almost overwhelming role of alcohol in Super Bowl culture. 

That all said, while their may not be a societal rise of domestic violence on Super Bowl Sundays, victims and potential victims need not simply accept domestic violence and should do what they need to to protect themselves, call the police and/or avail themselves of all domestic violence resources in there area. 

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Previously we have blogged on the Crespo case.  In this case, the trial court determined that the Prevention of Domestic VIolence Act was unconstitutional. The Appellate Division reversed this decision in June finding the statute constitutional.

The Supreme Court will be hearing oral argument on the issue today.  As a result, the final say on this issue will be coming soon.  Stay tuned. 

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When there is an act of domestic violence there is usually (and hopefully) a police report detailing the alleged incident. But what happens when the police officer is the perpetrator of the domestic violence? Well, New Jersey has just issued a new model police department policy for handling domestic violence incidents that involve law enforcement officers. The new policy would apply to all municipal police departments, as well as state and county law enforcement agencies.

According to long-standing New Jersey Attorney General Directives, if a law enforcement officer is found to have committed an act of domestic violence, that officer will have their weapons seized. (Directives 2000-3 and 2000-4). The new model policy is designed to ensure that police departments have in place clear guidelines when investigating domestic violence complaints involving their own officers. The new policy attempts to ensure a thorough fact-finding process that is fair to both domestic violence victims and the accused officers by incorporating the involvement of police chiefs and county prosecutors. The new policy also attempts to prevent any perceived intimidation or bias during investigations.

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Under the New Jersey Prevention of Domestic Violence Act, a “victim” of domestic violence is entitled to entry of a Final Restraining Order. N.J.S.A. 2C:25-29. The Act defines “victim of domestic violence” as including “any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship”. However, what is the definition of “dating relationship” and does a “dating relationship” exist if the relationship is formed by the exchange of monetary benefits? 

In the recently published decision of J.S. v. J.F. (App.Div. December 10, 2009), while the Appellate Division found that a “dating relationship” existed based upon the factual circumstances of the case, the Appellate Division did discuss the definition of a “dating relationship” and the impact on a Domestic Violence Complaint, or lack thereof, of a monetary benefit received as a result of a relationship.

Defendant in the J.S. matter argued that the Plaintiff did not qualify as a victim of domestic violence because Defendant paid for Plaintiff’s company. Defendant asserted that his relationship with Plaintiff, who worked as a dancer at a local club, was “professional” and that he paid Plaintiff to be his escort. Plaintiff asserted that she had a boyfriend/girlfriend relationship with Defendant, that she had been to his home, met his parents, and spent time together including weekends.   During trial, Plaintiff presented text messages from Defendant threatening her and her boyfriend and disparaging her.

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The recent act of domestic violence by singer Chris Brown on his very famous girlfriend, Rihanna, has brought new attention to the fact that domestic violence is not a socio-economic problem limited to the lower class.  Unfortunately, I often see the ugly side of relationships and not surprisingly domestic violence is an issue I also deal with.   New Jersey is attempting to help protect victims of domestic violence by protecting  the victims essentially from themselves. 

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At the time of a break-up of a relationship, clearly emotions are high, it is contentious and people often do or say things that they normally would not. Unfortunately, during this time period where many feel like they are on an emotional roller coaster, the tension escalates to the point where one party has filed a Complaint for Domestic Violence as a result of the actions and/or comments of the other party and the Court enters a Final Restraining Order. Once the emotional roller coaster ride stops, does the defendant have the ability to ask that the Restraining Order be dismissed? The answer is yes but the more important inquiry is whether or not such request will be granted. 

In New Jersey, either party to a Domestic Violence Restraining Order may request dismissal of the Restraining Order by way of Motion filed with the Court. The New Jersey Prevention of Domestic Violence Act states that “Upon good cause shown, any final restraining order may be dissolved or modified upon application to the Family Part…” N.J.S.A. 2C:25-29d. In other words, simply asking for a dismissal-- even if you are the plaintiff or the victim-- does not automatically warrant a dismissal of the Restraining Order. 

If the Defendant files the Motion to dismiss the Restraining Order, there are eleven factors for the Court to consider when determining whether or not “good cause” exists to dismiss a Restraining Order: the victim’s consent; current relationship of the parties; number of contempt convictions; use of drugs or alcohol; whether defendant is violent with others; whether the aggressor attends counseling; age and health of the aggressor; whether the victim is acting in “good faith” when opposing the dismissal; whether there are any other domestic violence restraining orders between the parties in other jurisdictions; and any other relevant considerations relevant to dismissal of the Restraining Order.

If the Plaintiff is the party making a request for dismissal, before any dismissal is entered, the Court must discern whether the plaintiff is seeking the dismissal voluntarily, without coercion or duress; if the plaintiff understands the cycle of violence that occurs in the domestic violence setting; and if the plaintiff understands the loss of protection if the Restraining Order is dismissed.

Notably, regardless of whether or not Plaintiff consents to, wants to have and does have communication with a defendant to a Restraining order, unless the Court has dismissed the Restraining Order, it remains in full force and effect.

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There are numerous criminal acts addressed within the Prevention of Domestic Violence Act, which,if proven,can form the basis for the entry of a domestic violence restraining order.The crime of harassment  is one.  It is defined by New Jersey law as being committed when a person, "with purpose to harass another," "[e]ngages in any other course of alarming conduct . . . with purpose to alarm or seriously annoy such other person."  The person must have a "conscious objective" to harass the victim.

Actually proving a purpose to harass, however, can be harder than it seems.  For instance, I recently tried a Final Restraining Order hearing where the husband/alleged abuser admitted to calling his wife dozens of times after she had fled the home and he had obtained a bogus temporary restraining order against her.  His defense?  I was just trying to "get her back because I love her."  Despite the Prevention of Domestic Violence Act requiring a broad interpretation of its terms to protect victims, the trial court dissolved the wife's TRO against the husband, finding that the husband lacked a purpose to harass despite admitting to everything that she alleged.  This despite an also undisputed prior history of domestic violence.

It was this oftentimes difficult "purpose" requirement that was recently addressed by the Appellate Division in R.P. v. Somerset, where the Appellate Division reversed a trial court's implementation of a Final Restraining Order because of a misinterpretation of the law.  The trial court held that a specific intent to harass was not necessary in proving that harassment occurred.  The Appellate Division disagreed and reversed, finding that the "purpose" is an integral part of proving a harassment claim.  In its conclusion, it also found that there was no evidence of a purpose in the case at issue, especially in light of a lack of prior domestic violence by the alleged abuser.  This despite the fact that the primary incident involved the alleged abuser/ex-girlfriend showing up at the ex-boyfriend's home when he arrived with his new girlfriend, pulling the new girlfriend from the car and assaulting her. 

Purpose is critical.  So is filling out a domestic violence complaint with as much relevant detail as possible.  Any victim will surely be grilled on the contents of the complaint, especially if there is anything missing or contradictory from testimony given.  Including details as to current and past incidents is of great importance.  Also, considering how difficult it may be to prove harassment, it is also recommended to check off a claim for harassment on the complaint form, as well as any other claim that may be proven by your facts, such as stalking, assault, terroristic threats, etc. 

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Victims of domestic violence often believe that they will be able to obtain a Final Restraining Order against their abuser simply because they were able to obtain the initial Temporary Restraining Order.  Obtaining an FRO, however, can be more difficult than one might think in light of the necessary proofs that must be made in court.  A victim must essentially prove his or her allegations by a "preponderance of the evidence" (more likely than not).

While New Jersey's Rules of Evidence are supposed to strictly apply, the fact that these situations are oftentimes  "he said/she said" versions of events can necessitate some flexibility in order to get the full story on the record.  However, as the Appellate Division recently held in N.V. v. Hartman, there are limitations as to har far a Trial Court may go in relying upon certain forms of evidence. 

The case involved a same-sex domestic violence dispute where N.V. alleged that Hartman had harassed her within the terms of New Jersey's Prevention of Domestic Violence Act.  In implementing a FRO against Hartman, the Trial Court relied in large part upon phone calls that Hartman made to N.V., finding that parts of the calls were threatening to N.V.'s safety based on the tone and language of the calls themselves. 

In reversing the Trial Court, the Appellate Division found that certain calls upon which the Trial Court relied were not made part of the Court record because a transcript of the calls was not entered as evidence, a verbatim record was not made of the calls played in Court, and the tape containing the calls was not marked into evidence as a Court exhibit and retained by the Court.  The Appellate Division, as a result, could not determine what recordings were acctually relied upon or played for the trial judge.  A new trial was Ordered as a result.

Relying on experienced counsel can help a litigant navigate through rules of evidence that can be tricky and technical.  Otherwise, key pieces of evidence upon which you want to rely at a FRO hearing may be inadmissible or improperly used in making your case. 

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The other day I was sitting in a Court room waiting for my Domestic Violence trial to be called.  The room was filled with domestic violence Plaintiffs and Defendants.  Since the list was quite long, I decided to wait outside the Court room with my clients.  Outside the Courtroom were more Domestic Violence Plaintiffs and Defendants many with their attorneys.  As I sat and waited, I watched the hustle and bustle among the the attorneys and litigants.  Clearly, many of them were negotiating a "Civil Restraining Order".

A "Civil Restraining Order" is an Order that precludes communications by one or both of the parties.  However, while a Civil Restraining Order may prohibit all forms of communications by a party, enforcement and sanctions of a violation of that Order is quite different than a Restraining Order entered under the New Jersey Prevention of Domestic Violence Act.  If a party violates a Civil Restraining Order,  to enforce the Order and obtain sanctions against the the party, a Motion will have to be filed and the facts underlying the alleged violation must be presented to the Court.  Generally, these types of Motions are not heard on an emergent basis,  can take four to six weeks to be heard and the relief granted will not include incarceration.  The violation is not considered criminal in nature.  In the case of a Restraining Order under the Prevention of Domestic Violence Act, a defendant could be immediately arrested at the scene for violating the terms of the Restraining Order.  Moreover, the sanctions imposed are criminal in nature and accordingly, a defendant may be more apt to avoid violating the Order because it comes with criminal implications.

So why were all those litigants and their attorneys negotiating Civil Restraining Orders in the hallway of the Courtroom?  There are a multitude of reasons.  Some Plaintiffs may have had a weak case and would likely not obtain a Final Restraining Order.  Some Defendants likely did not want to take the risk of having a Final Restraining Order against him or her and was willing to provide other concessions to get the Plaintiff to enter into a Civil Restraining order to to dismiss the Domestic Violence Complaint.  Such concessions likely included leaving the marital home and residing elsewhere and providing monetary amounts to the Plaintiff for Plaintiff's support and/or the children of the parties. For others, it was an opportunity to begin negotiating the terms of the parities' separation and the terms of custody and parenting time with the parties' children. 

Clearly, in some cases, after a temporary Restraining Order has been obtained under the Prevention of Domestic Violence Act, it may be appropriate to attempt to negotiate dismissal of the Domestic Violence Complaint and to negotiate the terms of a Civil Restraining Order for the various reasons cited above.  However, NEVER negotiate these types of agreements (1) without an attorney;  (2) without first counseling with the domestic violence personnel at the Courthouse; (3) without it being in writing and (4) and most important, if you believe that your safety is being compromised. 

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We have previously blogged about domestic violence in the digital age, discussing how various forms of electronic surveillance can be deemed an act of domestic violence in New Jersey.  As also previously blogged on, so-called "cyberstalkers" may potentially face stiffer penalties for their conduct under two proposed bills in the New Jersey Assembly.  These types of remedies and protection are becoming more and more necessary as people are utilizing new technologies to abuse their victims.

In S.B. v. Duffy, a new unreported (not precedential) decision from the Appellate Division, it affirmed a trial court's finding that a former boyfriend had committed an act of domestic violence by emailing the plaintiff and threatening her that if she did not answer his email within three days, he would, among other things, put nude photos of her on a website.  The plaintiff testified that after a first court adjournment, she continued to receive emails from the boyfriend and that the boyfriend was posting things about her on his website.  She also testified that the boyfriend had changed his password and that she could not access the website to see what he was posting. 

Despite the boyfriend's testimony that the plaintiff had full access to his website, that it was her who was disrupting the site, and that he did not write the emails to her, the trial court entered a final restraining order in part because of the photographs in existence, which were taken in a private setting during the relationship.  The court actually disregarded the emails because there was no proof as to who wrote them without expert testimony.

As this case demonstrates, with rapid changes in technology courts are faced with new types of misconduct upon which determinations as to domestic violence are required. 

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A typical question that I hear at most initial consultations (and I suspect most other divorce attorneys hear the same question) , is "how do I get my spouse out of the house?"  The typical answer is that unless there is a new act of domestic violence, you cannot usually have a spouse removed from the house while the case is pending.

While in a perfect world, attorneys are not telling their client's to get restraining orders that are not legitimate, that seems naive.  Similarly, I am sure that badly motivated litigants, when hearing that a restraining order is necessary to get rid of their spouse, will do whatever it takes to get that restraining order, including provoking altercations and/or fabricating an incident.  I have, unfortunately seen or heard of this many times.  In fact, I often advise people to have a recorder with them at all times to protect themselves from a set-up.  In a recent case, the wife told the husband that she would no anything she could to get him out of the house.  I have unfortunately heard this a lot.  Aside from the obvious reason to get rid of a spouse, the other reason is that with the entry of a final restraining order comes a rebuttable presumption that the victim should get custody of the children.  Also, there is the practical advantage of gaining possession of the home and temporary custody of the children by virtue of a restraining order. 

Don't get me wrong.  Domestic violence, real domestic violence is a blight on our society and is in no way acceptable.  That is not what I am talking about.  I am talking about, at best, what the Appellate Division has called "domestic contretemps" (i.e. your garden variety argument) and at worst the set-up noted above. 

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One of the main questions often arising in a potential domestic violence scenario is whether the victim is protected by the New Jersey Prevention of Domestic Violence Act.  Courts have broadly interpreted the Act's terms to protect victims within the Act's legislative purpose. 

For instance, a "victim of domestic violence" under the Act must be a person 18 years of age or older who has been subjected to domestic violence by a spouse, former spouse or any other person who is a "present or former household member."  What does "former household member" actually mean?  Courts have concluded that while more than a casual dating relationship is required, the parties need not actually reside together. 

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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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