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 Recently, in the unpublished decision of L.N. v. B.R.S., the Appellate Division noted that after the Court finds that an act of domestic violence occurred, the Court must take a “stop,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).
Notably, in L.N. v. B.R.S., the Appellate Division found that when the trial judge analyzed whether a final restraining order would be necessary to protect the plaintiff, the judge considered the assault and harassment that occurred, as well as prior instances of domestic abuse, and considered the credibility of the parties. The trial judge found that the plaintiff was truthful, based upon the Court’s ability to observe her demeanor during the course of the testimony and therefore entered the final restraining order. The Appellate Division upheld the trial court’s ruling.
The Appellate Division noted that “one of the reasons for this stop, look, and listen approach is the [Courts] recognition that the issuance of a domestic violence restraining order has serious consequences to the personal and professional lives of those who are found guilty of what the Legislature has characterized as a serious crime against society…”
Therefore, depending upon the circumstances, even if a plaintiff proves that s/he is a victim of an act of domestic violence, the Court may or may not enter the restraining order.