On December 5, 2016, an extremely interesting reported (precedential) opinion was released by the Appellate Division in the matter of J.S. v. D.S.  The opinion was remarkable for two reasons, one procedural and one substantive.  On the procedural side, what was interesting was that the Appellate Division proceeded to decide the case even though the matter was settled and the parties sought to have the appeal dismissed because the Court determined that “the interests of justice require a disposition of the appeal’s merits.”

44694685 - domestic violence abuse or aggression within marriage against partner wife or children

The substantively interesting part of the opinion was the holding that parties cannot consent to the entry of a domestic violence Final Restraining Order (“FRO”).  Rather, because of the far reaching implications of an FRO, a trial court must make the requisite finding that an act of domestic violence has occurred.

In this case, after the entry of a Temporary Restraining Order (“TRO”), at the date of the FRO hearing, the parties reached an agreement which called for defendant’s consent to an FRO in exchange for plaintiff’s consent to defendant’s exclusive possession of the marital home pending further order in the matrimonial proceedings.  Rather than question the plaintiff about the act of domestic violence or the defendant to see if there was agreement that the act had occurred, but rather only asked the usual questions regarding the voluntariness of the agreement.  Satisfied that the agreement was voluntary, an FRO was entered.  The defendant then filed a timely appeal asserting that the FRO was void ab initio (i.e. from the outset) because the judge mistakenly issued the FRO without taking testimony about the allegations, without finding an act of domestic violence occurred, and without determining plaintiff required protection from defendant.

Apparently, while the appeal was pending, the same or similar agreement to continue the FRO was reached again and the parties tried to dismiss the appeal but the Appellate Division would not allow it finding:

… In light of the strong public policies underlying the Act, we choose to exercise our discretion to consider the appeal on its merits. We have an obligation to ensure the FRO was legitimately entered and should not permit its wrongful perpetuation simply because it may have become a useful chip in the settlement of the parties’ matrimonial disputes.

Having rejected the parties’ request that we dismiss the appeal and having resolved to consider the merits of this appeal, we agree with what defendant previously argued: the FRO can no longer stand. A domestic violence final restraining order may not be entered by consent or without a factual foundation. See Franklin v. Sloskey, 385 N.J. Super. 534, 540-41 (App. Div. 2006).  Because the trial judge mistakenly failed to elicit a factual foundation, failed to find domestic violence occurred, and failed to determine whether plaintiff required protection as a result of defendant’s conduct, we vacate the FRO.

The matter was then remanded for an FRO hearing.

Interestingly, in a footnote, the Appellate Division provided a road map, as it were, for parties that want to consent to an FRO, when it stated:

We do not mean to suggest every domestic violence action must be tried to a conclusion or that a defendant may not accede to relief sought by a plaintiff. Nothing prevents a defendant from declining to defend against such an action or from acknowledging under oath the commission of an act of domestic violence. The consequences, however, are too serious to permit entry of an FRO merely by consent. Before entering an FRO, a court must ensure there exists an adequate factual foundation and that the defendant understands the consequences of the decision not to contest the matter. A court must also find that the FRO is necessary “to protect the plaintiff from an immediate danger or to prevent further abuse.” Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006). (Emphasis added).

The take away from this case is that FROs are serious matters and that care must be taken if they are going to be used as bargaining chips to settle issues on either an interim or final basis.


Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group 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 Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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We have written before on the topics of the use and misuse of the Prevention of Domestic Violence Act, and representing a litigant in a domestic violence matter.  Within the past few weeks, a few experiences have brought this topic back to the forefront, and I thought that now was a good time to address the issues, especially in the context of "resolving" such matters.  As a family law attorneys, we frequently encounter domestic violence as a component of our practice.  Whether it happens in the context of an ongoing divorce, entirely independent of a marital relationship, or something different altogether, each case is certainly different from the next, and each case resides on its own motivations, so to speak.  

What I mean by that is, the Prevention of Domestic Violence Act is a vital piece of legislation designed to protect actual victims of domestic violence.  Countless matters come across our desks involving legitimate, truthful victims in need of the law’s immediate protection from an abusive defendant.  Some of the most difficult matters involve those where we represent real victims with tragic fears of harm, including those who are immersed in the cycle of violence looking for a way out.  Considering the risk to such a victim if a final restraining order is not granted, the import of the litigation is vital.

On the other hand, many cases – typically in the context of an ongoing divorce matter – involve a litigation-minded spouse simply looking to get the proverbial "leg up" over the other spouse in that separate, but related matter.  Since the law is liberal in its protection of victims, it is often quite easy to procure a temporary restraining order, where the alleged victim can seemingly state whatever allegation he or she deems appropriate so long as it results in procuring a TRO.  There are several well known cases addressing the judiciary’s obligation to look out for those litigants who are trying to use the law to his or her advantage, as such an occurrence is unfortunately all too common. 


The other day I was sitting in a Court room waiting for my Domestic Violence trial to be called.  The room was filled with domestic violence Plaintiffs and Defendants.  Since the list was quite long, I decided to wait outside the Court room with my clients.  Outside the Courtroom were more Domestic Violence Plaintiffs and Defendants many with their attorneys.  As I sat and waited, I watched the hustle and bustle among the the attorneys and litigants.  Clearly, many of them were negotiating a "Civil Restraining Order".

A "Civil Restraining Order" is an Order that precludes communications by one or both of the parties.  However, while a Civil Restraining Order may prohibit all forms of communications by a party, enforcement and sanctions of a violation of that Order is quite different than a Restraining Order entered under the New Jersey Prevention of Domestic Violence Act.  If a party violates a Civil Restraining Order,  to enforce the Order and obtain sanctions against the the party, a Motion will have to be filed and the facts underlying the alleged violation must be presented to the Court.  Generally, these types of Motions are not heard on an emergent basis,  can take four to six weeks to be heard and the relief granted will not include incarceration.  The violation is not considered criminal in nature.  In the case of a Restraining Order under the Prevention of Domestic Violence Act, a defendant could be immediately arrested at the scene for violating the terms of the Restraining Order.  Moreover, the sanctions imposed are criminal in nature and accordingly, a defendant may be more apt to avoid violating the Order because it comes with criminal implications.

So why were all those litigants and their attorneys negotiating Civil Restraining Orders in the hallway of the Courtroom?  There are a multitude of reasons.  Some Plaintiffs may have had a weak case and would likely not obtain a Final Restraining Order.  Some Defendants likely did not want to take the risk of having a Final Restraining Order against him or her and was willing to provide other concessions to get the Plaintiff to enter into a Civil Restraining order to to dismiss the Domestic Violence Complaint.  Such concessions likely included leaving the marital home and residing elsewhere and providing monetary amounts to the Plaintiff for Plaintiff’s support and/or the children of the parties. For others, it was an opportunity to begin negotiating the terms of the parities’ separation and the terms of custody and parenting time with the parties’ children. 

Clearly, in some cases, after a temporary Restraining Order has been obtained under the Prevention of Domestic Violence Act, it may be appropriate to attempt to negotiate dismissal of the Domestic Violence Complaint and to negotiate the terms of a Civil Restraining Order for the various reasons cited above.  However, NEVER negotiate these types of agreements (1) without an attorney;  (2) without first counseling with the domestic violence personnel at the Courthouse; (3) without it being in writing and (4) and most important, if you believe that your safety is being compromised. 

Can an act of domestic violence by one parent against the other constitute sufficient “changed circumstance” to warrant a Court’s re-examination of an existing custodial arrangement? New Jersey law requires that a party seeking to modify a custody arrangement first establish the existence of such “changed circumstance” that affect the welfare of the child involved. Only after proving this threshold burden will a Court engage in a “best interest” of the child analysis to determine a custody award. The best interest analysis is based on the 14 factors set forth in N.J.S.A. 9:2-4.


Affirming a trial court’s order awarding primary residential custody of the parties’ nine-year old daughter to the plaintiff father, the Appellate Division in Chen v. Chen recently concluded that the mother’s act of driving over the father’s foot and dragging him for a few feet as he held onto the car in the presence of the daughter constituted a sufficient “changed circumstance” to trigger a “best interest” analysis. The father had filed a complaint after the incident under the Prevention of Domestic Violence Act (“PDVA”), N.J.S.A. 2C:15 to -35, resulting in the issuance of a Temporary Restraining Order wherein custody of the child was temporarily transferred to the father. A Final Restraining Order was subsequently entered maintaining the custody arrangement pending a full custody evaluation and hearing that ultimately resulted in the father’s designation as the primary residential custodian. 


In its affirmance, the Appellate Division rejected for three reasons the mother’s argument that the act of domestic violence could not constitute changed circumstances because the child was not physically subjected to the violence. First, the Court generally surmised that, “It seems obvious to us that domestic violence committed in the presence of a minor inherently implicates the child’s health, safety and welfare.” Next, the Court relied on the terms of the PDVA, which presumes that “the best interests of the child are served by an award of custody to the non-abusive parent” when determining temporary custody following an act of violence. Third, it rationalized that, because N.J.S.A. 9:2-4 deems this an act of domestic violence is a “critical factor” in determining custody, it, by correlation, also suffices to establish changed circumstances.  


The Appellate Division also affirmed the trial court’s best interest analysis based on proof of the mother’s domestic violence; her use of a wooden spoon to punish the child; her inflexible adherence to the parenting schedule; her failure to timely inform the father that she had relocated to New Jersey; and the child’s improved developmental growth and resolution of behavioral problems that manifested themselves while she was with her mother. Notably, the Court also rejected the mother’s charge of cultural bias stemming from the trial court’s conclusion that the values instilled by the father would continue to aid in the child’s development in a “twenty-first century United States,” since the trial court’s analysis was deemed proper and objective under 9:2-4.


Parents should keep their hostilities towards each other in check, as the Appellate Divisions’ opinion suggests that any act of domestic violence towards the other in front of the child will likely fulfill the changed circumstances threshold should a party seek to modify a custody arrangement. Parties should also be careful to abide by the terms of the PSA regarding custody, as the trial court (although not addressed by the Appellate Division) noted that even the mother’s failure to notify the father of her relocation to New Jersey with the child pursuant to the terms of the PSA also constituted changed circumstances justifying a best interest analysis.


EDITOR’S NOTE:  People should not forget that upon the entry of a final restraining order, there is a legal presumption that the victim should get custody.  Like all presumptions, this is rebuttable.  This presumption does not extend to civil restraints (i.e. a Consent Order in the matrimonial matter that is similar to a restraining order but is not under the domestic violence docket and not punishable by criminal contempt if violated).  That said, if there are true custody issues and a domestic violence matter arises, one must think long and hard about whether to settle the matter and enter into civil restraints.  – Eric S. Solotoff