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  However, that is exactly what the trial judge did in the case of C.R. v. A.R., an unreported (non-precedential) Appellate Division opinion released on May 5, 2011.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.

Interestingly, the Appellate Division did not say that such an order was automatically impermissible.  To the contrary, they held that the trial court has the inherent authority of, in an appropriate fashion and under proper circumstances, to order the exclusion of a spouse from the marital home, whether or not there has been domestic violence.  This is sometimes called "Roberts restraints" named after a case called Roberts v. Roberts (as well as a few others) that predated the domestic violence act.  What makes this interesting is that many have argued that Roberts restraints no longer exist after the enactment of the domestic violence act.  The Appellate Division seemingly puts an end to this debate with this case (though parenthetically, I recently successfully argued that Roberts restraints should be used to keep a parent out of the marital home based upon certain conduct that was detrimental to the children.)

However, the Appellate Division deemed them inappropriate in this case for the reasons that follow:

In this case, we are convinced that the Family Part overreached in granting an out-of-home restraint under the posture of the proceedings. Furthermore we are troubled by the
abruptness with which the issue arose, and the inability of Alan to fairly respond to the sua sponte restraints imposed by the court in the context of Cari’s unsuccessful PDVA complaint. The first mention of barring Alan from the marital home came after the Family Part exonerated him of committing any acts of domestic violence. The court did not deem Alan’s conduct to even be merely evidential of a domestic contretemps, but rather
held that no predicate acts under the PDVA were committed.   …

Then, without alerting the parties to the court’s thoughts, the Family Part embarked upon a brief discussion of the children’s best interests. There was nothing in the FV action
that materially touched upon those best interests, and although the court certainly maintained the raw authority to oversee the condition of the children, the manner of addressing those interests trampled Alan’s rights. Neither Alan nor Cari had an opportunity to present detailed and relevant evidence about the children living at home
and the effect of both parents’ presence vis-à-vis their wellbeing.

In the absence of an emergency, the Family Part should not have acted without either giving the parties fair notice of its intentions, or waiting for a proper application to be made
by one or both of the parties pursuant to Roberts …

In this case, the only evidence concerning the best interests of the children came from the testimony of the upset teenage daughter of the parties.   The Appellate Division held that that was an insufficient foundation upon which to construct the out-of-home restraint imposed by the court. The Court noted that it neither afforded the parties a fair opportunity to develop best interests evidence nor permitted them to adequately examine and cross-examine their daughter on those provocative issues.

What this tells us is that Roberts is alive and a defendant should be prepared for the possibility of a Roberts application if the children’s best interests could be harmed by the parties remaining in the same home pending a divorce.