The Appellate Division recently issued a published (precedential) decision in the matter of G.M. v. C.V. providing some clarification on procedures that must be followed when a transcript is not available to serve as a record of a prior hearing.

In G.M., a domestic violence restraining order had been entered between the parties in 2004.  Fast forward to 2016, when the Defendant sought to dissolve the restraining order.  According to the Defendant, the existence of the restraining order was making it very difficult for her to find employment and, she argued, it was no longer necessary for the protection of the Plaintiff.  She alleged that the parties, who had children together, had numerous interactions over the years since the entry of the restraining order without incident, had even toured colleges with the child together and entered into a business transaction together.  Simply put, the Defendant claimed that the Plaintiff no longer feared her or had a need for the protections of the restraining order.

Significantly, domestic violence restraining orders cannot easily be dissolved.  Parties cannot simply agree to dissolve them.  Even if both parties tell the Court that they are in agreement, a judge must still hold a hearing to determine if there is “good cause” to modify or dissolve a domestic violence restraining order.  This is because, due to the nature of domestic violence and the dynamic of fear created by the aggressor, “consent” from a victim of domestic violence may not be genuine.  Rather, it may be the result of fear and manipulation or control by the victimizer.

N.J.S.A. 2C:25-29(d) requires that modifications or dissolutions of a domestic violence restraining order can only be granted by a judge who is the same judge who entered the restraining order, or “has available a complete record of the hearing or hearings on which the order was based.”  The “complete record” includes the transcript of the final restraining order hearing, which allows the Court to be familiar with the full history of domestic violence and best evaluate the victim’s continued fear of the perpetrator.

Unfortunately, in G.M., the transcript was unavailable because the audio recording of the final restraining order hearing was blank.  To do nothing would deprive the defendant of her right to due process – the court cannot just sit by and refuse to hear the issue as a result of the unavailability of a transcript.  Therefore, the Appellate Division took this opportunity to establish procedures for addressing the issue of the absence of a transcript in these hearings:

  • When the transcript is available, but simply has not been provided by the moving party, this is a fatal omission and will result in the denial of the application to modify or dissolve the restraining order.
  • If the moving party has documentation from the judiciary showing that the final restraining order hearing cannot be transcribed in whole or in part, the court must determine if this problem was caused by the moving party.  The Court must also determine if the transcript is totally unavailable, or if it can be recovered.
    • If there is no audio recording to transcribe or it has been corrupted, and the moving party was not the cause of this malfunction, the court must then determine if the moving party can produce evidence to establish a prima facie case that a change of circumstances exists to modify or dissolve the restraining order in the absence of a transcript.  The Court must also determine if the judge who entered the restraining order entered a detailed statement of reasons, which would allow the Court to determine if the record is complete.
    • If the Court cannot assess whether to deny the application or whether, based on the record before it, it is satisfied that there is prima facie evidence of a change in circumstances that may warrant modification or dissolution of a restraining order, then the Court must reconstruct the record of the FRO hearing, with the goal of producing a record that “provides reasonable assurances of accuracy and completeness.”

Once the record is reconstructed or there is deemed sufficient information from the available record to determine whether a change of circumstances exists warranting modification or dissolution of the restraining order, the Court can move forward with a determination as to whether good cause exists to do so.

While this case dealt strictly with the issue of domestic violence restraining orders, one can imagine other scenarios in which these procedures can be adapted where transcripts of prior proceedings are unavailable, but necessary to educate a judge about testimony given during earlier but related proceedings.


headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

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