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.

The Appellate Court grounded its decision in the express language of The Prevention of Domestic Violence Act, which provides that a defendant may be restrained:


from entering the residence, property,school, or place of employment of the victim or of other family or household members of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim or other family or household members. N.J.S.A. 2C:25-29b(6) (emphasis added).



In addition to the express language of the Act, the Appellate Court relied upon its prior decision of Finamore v. Aronson, 382 N.J. Super. 514 (App. Div. 2006), wherein it held that a restraining order must “distinctly describe[]” the “specific relief[] necessary to protect the victim”. Id. at 520 (further holding that a provision in a final restraining order that prohibited defendant from attending his children’s extracurricular events would not be enforced where the order failed to provide the factual basis for the provision). The Appellate Court further stressed that, just as in Finamore, the order at issue failed to describe a specific location from which defendant was prohibited and, instead, simply “prohibit[ed] him from wherever his ex-wife may be”. Such language was too broad to satisfy the statutory prerequisite that the order refer to a “specified place” from which defendant was barred.


Due to the inappropriate generality of the order, defendant was left in a position where “he could not, as a matter of law, be found to constitute a knowing violation of an existing domestic violence restraining order." (quoting State v. Finamore, 338 N.J. Super. 130, 132 (App. Div. 2001)). In other words, as the order did not specify those locations from which defendant was prohibited, defendant was unable to determine whether his otherwise innocent act of appearing at a public location would result in a violation of the restraining order if plaintiff also chose to attend the same location without his prior knowledge. As noted by the S.K. Appellate Court, “Defendant should not be compelled to abandon his lawful presence in a public or other location only because his ex-wife also chooses to be present in the same general location…such an order puts defendant at risk of being arrested and charged, as occurred in this case, for otherwise innocent conduct, such as watching his children play soccer, going to their school, or shopping at a grocery store.” Without prior knowledge of his wife’s attendance at the soccer game, defendant could not have “knowingly” violated the restraining order, a state of mind that the State was required to prove in order to establish the disorderly persons contempt of court charge against defendant.


Based on the foregoing, the S.K. Appellate Court held that the prohibition at issue “was not authorize[d]” by the Act since it failed to “describe a specific place from which defendant [was] barred but [instead] generally prohibit[ed] him from wherever his ex-wife may be.


Although holding that the inappropriate broadness of the prohibition violated the Act, the S.K. Appellate Court nonetheless left the door open a crack for the validity of such general prohibitions by focusing on that portion of the Act that grants the Court discretion to expand upon the Act’s terms by ordering “any relief necessary to prevent further abuse". N.J.S.A. 2C:25-29b. Relying on this authority granted by the Act, the S.K. Appellate Court cautioned that there may be instances where “extraordinary circumstances might justify as broad a prohibition as was included in the restraining order in this case.” Unfortunately, the parameters of those “extraordinary circumstances” are not addressed by the S.K. Court.


So, it appears that the question as to the enforceability of these broad prohibitions in domestic violence restraining orders has been answered in the negative. Or has it? S.K. does provide that provisions that generally prohibit a defendant from all locations where plaintiff might be are unenforceable pursuant to the Act. However, S.K. simultaneously provides that there may be “extraordinary circumstances” that justify the expansion of the Act to include the validity of such broad provisions where “necessary to prevent further abuse”. N.J.S.A. 2C:25-29b. The nature of these “extraordinary circumstances” remains unknown to the practitioner. What is known is that, although only slightly cracked, the door has been left partially open for practitioners (and litigants) to define such “extraordinary circumstances”.


This author is left with questions for the S.K. Appellate Division that, for now, go unanswered.


· If, as determined in S.K., such general prohibitions in a restraining order per se preclude a defendant from having the requisite “knowledge” to violate the order, how could there ever be “extraordinary circumstances” that would justify the entry of such an order? Without defendant conceding his “knowledge”, the resulting order could never be violated and would, therefore, be meaningless in terms of protection to plaintiff.


· No matter the “extraordinary circumstances” that might warrant entry of such a broad prohibition, is entry of a final restraining order that contains such a broad prohibition ever fair to defendant who, essentially, must face every day not knowing whether his next innocent step could result in arrest?


Until there is more case law, this author’s questions remain legally unanswered, although fodder for debate.