It should come as no surprise that after the end of a relationship, people sometimes do bad things to the former love of their life. Really, it’s a tale as old as time. But what if, as an act of retaliation, a party makes a report to DCPP (the agency that investigates child abuse), whether true or not?
That’s what happened in the case of E.W. v. W.M.-H, at reported (precedential) trial court opinion by Judge Sanders of Essex County. While precedential, it is not binding on other courts because it is only a trial court opinion.
In that case, after the end of a one month relationship where plaintiff provided “tens of thousands of dollars” to the defendant, she filed a criminal complaint seeking a return of the money, as well as a civil complaint seeking return of the money. The day after defendant was served with the civil complaint, DCPP commenced an investigation of her based upon an anonymous call to the DCPP hotline. Plaintiff sought and received a domestic violence Temporary Restraining Order. After the hearing, the Judge found that it was defendant who make the call to DCPP, though there was no direct evidence of same. That is not the interesting issue in the case.
The interesting issue is that there is a statute that provides absolute immunity to those who make complaints to DCPP. In this case, the court had to grapple with whether that statute “… applies to complaints made to DCPP in the realm of domestic violence under the Prevention of Domestic Violence Act (“PDVA”), N.J.S.A. 2C:25-17 to -35, precluding any finding of harassment under N.J.S.A. 2C:33-4.”
The case contains a good discussion of the legislative purpose of each statement. Ultimately, Judge Sanders found that applying absolute immunity in the domestic violence setting would frustrate the intent of the Prevention of Domestic Violence Act. Specifically, Judge Sanders held:
Considering these express statements by the Legislature and finding them to be essentially synergistic and complimentary in purpose, the court concludes that the application of immunity to purported harassing conduct by way of DCPP referrals would render an absurd result. Both statutes place primacy on the protection of children either directly or derivatively. To apply the immunity statute in the context of domestic violence would legalize the weaponization of DCPP referrals as a mechanism of harassment, which would further victimize children as being exposed to such acts of domestic violence. It is that result that this court finds to be absurd as it contravenes the purpose of both statutes. Put more specifically, applying the immunity statute, which is primarily employed as a mechanism to protect children, to DCPP referrals made as harassing conduct in the domestic violence arena, would put children at risk of being exposed to domestic violence by virtue of an unrestrained ability to use such referrals as a legal means to harass the putative victim. Thus, applying the immunity statute would contravene not only the PDVA, but also the underlying purpose of the immunity statute itself by putting children at risk of being exposed to harassment, and thus domestic violence, by DCPP referrals. Therefore, while recognizing the absolute and inclusionary language in the immunity statute, the court finds that it is inapplicable in the realm of domestic violence as it would render an absurd result.
Despite finding that the call to DCPP was harassment under the domestic violence statement, the court, however, went on to dismiss the TRO finding that a FRO was not necessary under the second prong of the Silver test.
While not binding, this case is interesting. Moreover, it gives rise to arguments that other type of calls to third parties, even if true, if for a retaliatory or improper purpose, could give rise to harassment.
Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Department of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or firstname.lastname@example.org.