The Appellate Division, in an opinion approved for publication titled J.D. v. A.M.W., addressed the trial court’s denial of the Plaintiff’s application for a Final Restraining Order (“FRO”) under the Prevention of Domestic Violence Act (“PDVA”). In her appeal, the Plaintiff alleged that the trial court erred in finding she did not meet her burden on the second prong of Silver v. Silver, N.J. Super. 112 (App. Div. 2006), an issue that my colleague, Jessica Diamond Lia, Esq. previously blogged about.

The Mother/Plaintiff, J.D., and Father/Defendant, A.M.W. were involved in a non-marital, romantic relationship and had a child in common. After living with one another for a year following their son’s birth, they shared custody until December 8, 2015 when the son returned from the Father’s parenting time with a “black eye and cut above his eye.” The Mother was thereafter awarded sole custody of the parties’ son in June 2018. The parties agreed to civil restrains that limited contact between them to exclusively deal with child-related matters.

On August 29, 2021, both parties were present at their son’s soccer game. Notably, it was the Father’s day for supervised parenting time with their son. The Mother realized that the Father went through her stroller to find and remove certain sneakers belonging to the son. When she asked for the sneakers back, and advised the Father not to touch her belongings, the Father refused and an argument ensued.

The Father chest-bumped her and caused her to stumble backwards. When the Father attempted to grab the son, the Mother blocked him from doing so and informed him to “back off” and to stop acting like “an animal.” She asked the paternal Grandfather, who was the supervisor for the Father’s parenting time, to intervene and help calm the situation.

The Mother’s testimony during the FRO hearing was that she was fearful of the Father during this incident. She further testified that their relationship was mired with domestic violence since 2009. The Mother testified to specific incidents of prior acts of domestic violence by the Father. In 2010, while pregnant with the parties’ son, the Father became irate over a group text message the Mother received and proceeded to snap her phone in half. She tried to jump out of his car and get into her apartment building, but he chased her and followed her. The Father shoved her into the wall, hitting her back and head, and she fell down. When the Mother got back up, she had a cut on her head because she “felt the blood.” After pleading with the Father to let her go inside, he shoved her down again while yelling at her.

The Mother finally got into her house and tried to shut the door on the Father. He made his way into her house, tossing her coffee table and couch, as well as everything in the kitchen including throwing dishes on the floor. As a result, the Mother ran into her bedroom, locked the door, and hid in there. After telling the Father she would call the police, he responded, “Go ahead and call the police, you know, I know all the police, my dad’s a cop.” She testified she was in fear of the Father during this incident.

Another instance of domestic violence occurred when the parties’ son was three (3) weeks old. The Father was yelling at the Mother while the son was crying. The Mother took the son into her bedroom and the Father followed her while continuing to yell despite the Mother’s pleas to stop as it was scaring their son. While she was in her bedroom, the Father came in and continued to shove her head. She testified that she was in fear of the Father during this incident.

The Mother further testified that she feared the Father during the August 29, 2021 incident because “he seems bolder…I just feel like he’s going to do something worse.” Further, she testified that during the trial, she remained in fear of the Father. Finally, she continued by stating,

he’s … not following the civil restraints. He’s getting physical again. I’m just afraid he’s going to hurt me again. I don’t know what else to do.

During lunch on the second day of trial, an incident occurred between the Mother and Father. The Mother’s counsel went on the record to explain the incident to the trial court. Specifically, that the matter be delayed to allow law enforcement to investigate the Father’s interaction with the Mother during lunch having come “within two feet” of her and causing her to be “hysterical” and “completely fearful” of the Father.

The trial court denied the Mother’s request for an adjournment. After resuming the hearing, the trial court made findings and determined the Mother’s testimony to be credible. The Father never testified. Further, the trial court found sufficient evidence to prove the Father committed the predicate act of harassment pursuant to N.J.S.A. 2C:33-4—the first prong of Silver v. Silver.

Moving to the second prong of Silver v. Silver, the trial court determined no FRO was needed. Instead, the trial court found that the Mother was not,

in immediate danger from this particular defendant, because you … really [have] safeguards in place from a difficult situation through litigation with [another Family Part in a different county] and through the prior order that you signed in regards to civil restraints.

In drafting the dismissal of the Mother’s Temporary Restraining Order, the trial court advised the Mother:

I think that we have [defendant’s father] there; he seems to be safeguarding it. I also think that your husband there appeared to me to be very levelheaded. And while I did not hear from [defendant], it’s my impression that I think he now gets it, and I also think that he realizes from there.

The dismissal order required that the parties maintain at least twenty (20) yards distance between one another at sporting events for the son. The paternal Grandfather would handle all necessary communications between the Mother and Father. The trial court believed this language would “prevent any further dustups like that.”

Under Silver v. Silver, trial courts have a two-fold task. First, whether the plaintiff has proven, by a preponderance of the evidence, that the defendant committed one of the predicate acts referenced in N.J.S.A. 2C:25-19(a).  If a predicate offense is proven, the judge must then assess “whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29[(a)](1) to -29[(a)](6), to protect the victim from an immediate danger or to prevent further abuse.”  J.D. v. M.D.F., 207 N.J. 458, 475-76.  

On appeal, the Mother contended that the trial court erred by considering factors such as “safeguards” provided by her new husband and the paternal Grandfather, as well as the prior civil restraints. Further, the trial court’s “impression” that the Father “gets it” was an assumption about the Father’s state of mind despite no basis having been provided to make such an assessment. Finally, that the combination of her testimony regarding the predicate act, her fear of the Father, and the prior history of domestic violence, is enough to satisfy both prongs under Silver v. Silver.

The Appellate Division agreed. It found the trial court’s second prong findings to “raise several concerns.” First, that her husband or the paternal Grandfather could protect her from the Father is troubling, as it ironically implied that the Mother needed protection. Importantly, both were present during the August 29, 2021 predicate act incident at the son’s game, and neither were able to prevent the Father’s domestic violence. There was nothing in the record to permit the trial court to “speculate that these individuals would successfully protect [the Mother] in the future.”

Having found ample evidence in the record that the Mother requires an FRO to prevent further abuse by the Father, the Appellate Division concluded that the trial court misapplied the law, and erred when it denied the FRO on the record. The matter was reversed and remanded for the entry of an FRO. The second prong of Silver v. Silver requires a trial court to evaluate the statutory factors enumerated in N.J.S.A. 2C:25-29[(a)](1) to -29[(a)](6).

In doing so, the factors should be evaluated in the context of whether the defendant is likely to continue his course of abusive behavior, “not whether external factors might thwart his attempts.” Importantly, as the Appellate Division stated, “[a] court conducting an FRO hearing should not consider the capacity of third parties to protect a domestic violence victim from their abuser when assessing the need for protection.”