Posted on October 1, 2009 by Robert A. Epstein

APPELLATE DIVISION FOCUSES ON RULES OF EVIDENCE AT A FINAL RESTRAINING ORDER HEARING

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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Posted on August 12, 2009 by Eric S. Solotoff

THE ABUSE AND MISUSE OF THE DOMESTIC VIOLENCE STATUTE

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. 

Because domestic violence is so serious, it is an affront to the system and real victims when it is abused.  A few quotes from Appellate cases really get to this point. 

In the Peranio case,  Judge, now Justice Long criticized application of the domestic violence statute to a minor disagreement when she stated:

Although it can safely be observed that defendant’s conduct was no model, application of the domestic violence law to it diminishes the suffering of true victims of domestic violence and misused the legislative vehicle which was developed to protect them. It also had a secondary negative effect: the potential for unfair advantage to a matrimonial litigant.

Justice Long also quoted from the Appellate Division opinion in Murray, as follows:

We are concerned, too, with the serious policy implications of permitting allegations of this nature to be branded as domestic violence and used by either spouse to secure rulings on critical issues such as support, exclusion from marital residence and property disposition, particularly when aware that a matrimonial action is pending or about to begin.

Justice Long then ultimately concluded:

While we are sympathetic with plaintiff’s desire to shield her children from the bickering which took place between her and defendant during his visits (this was plainly one of the factors which fueled the filing of the domestic violence complaint), the fact of the matter is that the dissolution of a marriage is rarely a happy event. All parties suffer and even the most rational are hard pressed to avoid any emotional encounters. Our hope, like plaintiff’s, is that all children of divorce can be spared arguments and recriminations. But this needs to come from the good intentions of their parents and not from the misapplication of the domestic violence law, which law was intended to address matters of consequence, not ordinary domestic contretemps such as this.

At the end of the day, the domestic violence statute is an important and necessary tool to protect victims of domestic violence.  That said, it should be real victims and not maliciously motivated litigants seeking to get a leg up in their divorce or custody proceedings.
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Posted on April 23, 2009 by Sandra C. Fava

DUE PROCESS AND FINAL RESTRAINING ORDERS

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. 

The trial judge first required both parties to submit to a drug and alcohol testing. When the results came out negative the judge proceeded with the hearing. The judge took testimony from A.R., however would not allow E.B. to cross examine her and when E.B. advised the court he had witnesses, the judge dismissed the statement.

 

In entering the Final Restraining Order (FRO) the judge stated on the record that E.B.’s own behavior evidences his lack of control and that he had anger and violence problems. In addition to entering the FRO, upon A.R.’s request, the court imposed support obligations upon E.B. without taking any testimony or reviewing any evidence as to either party’s income or A.R.’s financial needs.

 

On appeal E.B. argued that he was deprived his due process rights because of a lack of meaningful notice of the hearing and an opportunity to obtain counsel; the record didn’t support the decision to issue an FRO; and the judge erroneously imposed support obligations upon him without taking any testimony as to his financial situation.

 

The Appellate Division agreed with E.B. that he was deprived his right of due process to notice and a meaningful opportunity to defend himself and that the court erroneously imposed financial obligations upon him.

 

At a minimum, due process requires that a party in a judicial hearing receive ‘notice defining the issues and an adequate opportunity to prepare and respond.” H.E.S. v. J.C.S., 175 NJ 309, 321 (2003). The Prevention of Domestic Violence Act requires that a final hearing be held within ten days of the filing of a TRO. N.J.S.A. 2C:25-29(a). However, “to the extent that compliance with the ten-day provision precludes meaningful notice and an opportunity to defend, the provision must yield to due process requirements.” H.E.S. at 323. Furthermore, the judge imposed significant financial obligations upon defendant without receiving any evidence of either party’s current financial situation. The Appellate Division recognized a need for resolution of the entry of a FRO in a hearing that comports with “[t]he minimum requirements of due process,…notice and the opportunity to be heard.” Doe v. Poritz, 142 NJ 1, 106 (1995).
 
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Posted on February 23, 2009 by Sandra C. Fava

DISSOLVING A FINAL RESTRAINING ORDER

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.
 

During the oral argument of defendant's motion, the trial court asked plaintiff whether she was still fearful of defendant.  When she responded "yes", defendant's counsel then asked to cross-examine plaintiff.  The request was denied as the court indicated that there was a language barrier and that no interpreter was present.

Defendant appealed and the Appellate Division found the trial court's refusal to allow cross examination of plaintiff reversible error.  This was especially so because plaintiff did not contend in her opposition to defendant's application that she feared defendant, rather it was something the trial court elicited on its own.  Moreover, defendant had a right to cross examine plaintiff as to this issue, given her lack of credibility as demonstrated in the past.  On remand, the trial court should consider the following factors when determining if the FRO should be dissolved:

1) Whether the complainant consents to the dissolution;

2) Whether the complainant legitimately continues to fear the defendant;

3) The nature of the parties' present relationship;

4) Whether there have been any violations of the restraining order;

5) Whether the defendant has alcohol, drug abuse or violence issues;

6) Whether the defendant has had counseling; and

7) Whether there is a history of domestic violence and prior restraining orders.

As to the issue of counsel fees, the Appellate Division stated that this too should be reversed and remanded consistent with the plenary hearing to be conducted to determine whether defendant has met his burden of proof for the dissolution of the FRO.
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Posted on January 31, 2009 by Sandra C. Fava

RETURN OF WEAPONS WHEN AN FINAL RESTRAINING ORDER IS ENTERED

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.

Defendant appealed the trial court's decision. His appeal was based on two arguments: 1) The casual and short term relationship between the parties didn't qualify as a "dating relationship" under the Domestic Violence Prevention Act; and 2) the trial court erred in holding that the entry of an FRO made automatic the seizure of defendant's weapons.

Defendant's first argument failed because he did not raise the argument to the trial court, thus the Appellate Division could not consider it since it was missing from the record below. As to the second argument, the Court agreed and reversed and remanded that portion of the trial court's decision.

"N.J.S.A. 2C:25-29(b)(16) provides that in addition to entering an order prohibiting a defendant found to have committed an act of domestic violence from possessing a firearm, a "court may also issue an order prohibiting the defendant from possessing any other weapon enumerated in subsection r. of N.J.S.A. 2C:39-1." (emphasis added). Id. at page 10. The key language in this part of the statute is "may", which leaves the determination up to each judge, on a case by case basis. Moreover, although martial arts weapons are not specifically identified as weapons under the statute, the Appellate Division was satisfied that martial arts equipment is included, as the definition of a weapon includes "anything readily capable of lethal use or of inflicting serious bodily injury."

The court remanded the issue of whether defendant's martial arts weapons should be seized to the trial court to make findings whether defendant's continued possession of these items would pose a threat to plaintiff or others.
 
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Posted on November 13, 2008 by Sandra C. Fava

COURTS CALL FOR THE EXPANSION OF THE PROTECTION OF DOMESTIC VIOLENCE VICTIMS

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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Posted on October 20, 2008 by Robert A. Epstein

SINGLE INCIDENT OF DOMESTIC VIOLENCE CAN CONSTITUTE SUFFICIENT "CHANGED CIRCUMSTANCE" TO WARRANT RE-EXAMINATION OF CUSTODIAL ARRANGEMENT

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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