Domestic Violence

Subscribe to Domestic Violence

In the recent unpublished decision of L.G. v. T.G.. the Appellate Division addresses an issue that we are dealing with more and more – tracking one’s spouse through a hidden GPS on their car.  GPS in terms of domestic violence isn’t necessarily “new” – you can read about the beginnings in Eric Solotoff’s 2011 blog.  But this case also demonstrates that having a third party contract the private investigator services does not protect a defendant/spouse from entry of a final restraining order (“FRO”) based upon stalking and that reviewing the information/using it against the victim can also lead to the FRO based upon harassment.  Of note, although not explicitly stated, is that the tracking/private investigation was not intended to assist the defendant’s case, such as for cohabitation, but rather the opinion reads as though the only purpose of tracking the plaintiff was to learn about and question her whereabouts.  Other important factors that we often see, and which the court considered, include that the defendant was the sole wage earner and can therefore exert financial control against the plaintiff and the defendant used his larger physical stature to instill fear in the plaintiff.  In this very thorough decision, before addressing the merits of the appeal, the Appellate Division specifically stated that it “defer[s] to the judge’s thoughtful findings on this subject because those findings were solidly grounded on the judge’s credibility findings – he found L.G. much more credible than T.G., who was evasive – as well as other reliable evidence”.

In L.G., the Complaint for Divorce was filed in July 2017 following an approximate thirteen year marriage that commenced in 2004 and fell apart due to financial issues related to L.G.’s spending habits, including spending down the parties’ joint accounts, their daughter’s accounts, defendant’s inheritance and substantial credit card charges, causing T.G. to place her on a budget. The relevant restraining order in L.G. occurred after the divorce complaint was filed and after L.G. dismissed a pre-complaint temporary restraining order (“TRO”) against T.G.   That initial TRO resulted from a telephone call and text message exchange between the parties in response to T.G. closing their joint bank account.

Back to the TRO at issue here… Approximately three months post-complaint in October 2017, T.G. had his father retain a private investigator to conduct surveillance on L.G., including by having a GPS tracking device placed on her vehicle without her knowledge.  L.G. did not discover the device for nearly a month. During this period, there were 88 successful logins to view activity on the GPS that provided real-time whereabouts and approximately 391 updates from the GPS.  L.G. was followed personally for about three days.  Also during this period, and on the day that L.G. discovered the GPS, T.G.  questioned L.G. about her whereabouts and evasively confronted her with information he knew  from the tracking device before she knew it existed.  The parties got into an argument and each of them obtained a TRO against the other.  Following a trial, L.G. was granted an FRO and T.G.’s TRO was dismissed.

L.G.’s FRO was entered based upon the predicate acts of stalking and harassment – both of which stem from the GPS.  The statute guiding the predicate act of stalking is:

N.J.S.A. 2C:12-10(b)

  • [a] person is guilty of stalking, a crime of the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress.

N.J.S.A. 2C:12-10(a)

  • For the purposes of this statute:
    • (1) “Course of conduct” means repeatedly maintaining a visual or physical proximity to a person; directly or indirectly, or through third parties, by any action, method, device, or means, following, monitoring, observing, surveilling, threatening, or communicating to or about a person, or interfering with a person’s property; repeatedly committing harassment against a
      person; or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct of a combination thereof directed at or toward a person.
    • (2) “Repeatedly” means on two or more occasions.
    • (3) “Emotional distress” means significant suffering or distress.
    • (4) “Cause a reasonable person to fear” means to cause fear which a reasonable victim, similarly situated, would have under the circumstances.

T.G. came up with plenty of defenses regarding the GPS, including that “he did not personally install it; he never threatened her; he did not personally maintain visual and physical proximity to her ; and that his behavior was not persistent because it occurred over a one week period”  However, the Appellate Division didn’t buy it.  Rather, the court looked to the purpose of the stalking statute to “cast a wide net of protection for stalking victims by broadly prohibiting and punishing persistent, unwanted, and frightening behaviors” and “to intervene in repetitive harassing or threatening behavior before the victim has actually been physically attacked”.  The court also looked to the purpose of the Prevention of Domestic Violence Act to assure the maximum protection to victims.  Against this background, the court did not forgive T.G. because the device was on L.G.’s car as opposed to inside the home, such as in a bathroom or bedroom where L.G. would have a greater expectation of privacy.  Additionally, the court did not buy T.G.’s arguments that he should avoid the consequences of an FRO because he did not physically place the GPS on L.G.’s car and instead authorized his dad to do so.   Ultimately, the Appellate Division opined that “[i]ndirectly and through a third party, T.G. had L.G. followed, monitored, observed, and surveilled, by using adevice in violation of N.J.S.A. 2C:12-10(a).”

The Appellate Division then turned to harassment, which incorporated the same behavior from the above stalking, although not placement of the GPS itself. The statute guiding the predicate act of harassment is:

N.J.S.A. 2C:33-4:

  • a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
  • b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

Here, the trial court found that while the GPS was not harassment as T.G. did not intend for L.G. to detect the device, he did use the information obtained from the GPS to intentionally harass, intimidate and try to trap L.G., as well as to cause alarm and serious annoyance.

As to the history of violence and need for protection, the trial court found L.G.’s testimony credible regarding her fear of T.G. and need for an FRO to “feel safe with her kids”, as well as the parties’ prior arguments including an incident when T.G. said to L.G. “do you know what one punch will do to your face?”, as well as the physical incident when T.G. pushed and pinned down L.G. and, as L.G. later testified, threw her phone against the wall.  T.G. had also demanded access to her phone and contacts.

When I said this opinion was thorough, I wasn’t kidding, but it’s important.  The takeaway here is to think twice about placing a GPS on a spouse’s vehicle.  This is especially true when the surveillance has no bearing on your underlying claims and is merely for personal knowledge.  It also doesn’t matter that you may feel aggrieved by your spouse for spending habits or similar reasons.  Remember, even your dad can’t get you out of this one.

Lindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Lindsay A. Heller, Associate, Fox Rothschild LLP

In a recent decision approved for publication, the New Jersey Appellate Division reversed a trial court’s findings that the Sexual Assault Survivor Protection Act, N.J.S.A. 2C:14-13 to -21 (SASPA), could afford protection to victims of sexual assault whose attacks took place prior to the effective date of the Act in 2015.  In so holding, the court reversed the entry of a final protection order to a victim of sexual violence, who was assaulted in 2005, ten years prior to the enactment of SASPA.

The case of R.L.U. v. J.P. illustrates this principle.  In this case, the defendant pled guilty to endangering the plaintiff in 2005, when she was eleven years old.  He was sentenced to three years of jail time and parole for life.  In 2017, he interacted with the plaintiff at the convenience store where she worked and verbally threatened her.  A few days later, he appeared at the glass window of the plaintiff’s job and stared at her for five seconds before walking away.  The plaintiff applied for a temporary order of protection pursuant to SASPA.  A final protective order was then entered, after a hearing at which the trial court heard credible testimony that the defendant had intercourse with the plaintiff in 2005.  Relying upon that assault as the predicate act, the trial court entered a final order of protection pursuant to SASPA.

The Appellate Division reversed, albeit unwillingly, finding it was “constrained” to hold that SASPA was not intended to be applied retroactively.  Explaining the history and purpose of SASPA, the Court identified its purpose to extend protection from domestic violence to those individuals who do not meet the requirements of the Prevention of Domestic Violence Act (PDVA), but are victims of sexual violence.  The PDVA is the primary avenue by which an individual can obtain a protective (otherwise known as restraining) order in New Jersey.  However, to qualify as a “victim” under the PDVA, one must be a spouse, former spouse, co-parent, or person with whom the defendant had a dating relationship.  Accordingly the PDVA does not protect persons subject to sexual violence in a random encounter or in less than dating relationship.

To bridge this gap, SASPA provides that any person alleging to be a victim of nonconsensual sexual contact, sexual penetration or lewdness (or an attempt thereof) who is not a protected victim under the PDVA, may apply for a protective order under SASPA.  However, the entry of a final protective order under SASPA requires a finding of nonconsensual sexual contact, penetration or lewdness and the possibility of future risk to the safety or well-being of the victim.  Importantly, words, threats or harassment is not enough.

Here, the trial court relied upon the predicate act of intercourse with the plaintiff in 2005.  The appellate court reversed, finding that this act could not constitute the predicate act as it occurred prior to SASPA’s enactment in 2015.  The court relied upon the absence of any legislative intent that SASPA was designed to apply retroactively and the fact that the PDVA is similarly applied prospectively.

It is important to understand the different laws which protect victims of domestic violence and know that SASPA is a fairly new law which broadens the category of victim who may seek protection from such acts of abuse.  However, victims whose offenders are more akin to a stranger must be cognizant of the durational limits imposed by SASPA.  That being said, any new acts of sexual violence may give rise to a basis for a protective order under the Act and anyone who is unfortunately a victim of such violence should be aware of the legal rights and protections to which they are entitled.

__________________________________________________________________

 

Katherine A. Nunziata, Associate, Fox Rothschild LLPKatherine A. Nunziata is an associate in the firm’s Family Law practice, based in the Morristown, NJ office. You can reach Katherine at (973-548-3324) or at knunziata@foxrothschild.com.

When a trial court’s decision is published, we know it’s time to listen.   T.M. v. R.M.W. is a good reminder that definitions modernize with our modernizing society, even when dealing with terms and concepts that we use in our daily practice. In this case, the court opined about two integral parts of a domestic violence matter:

  1. Underlying relationship to qualify for a restraining order; specifically, the definition of “dating relationship”.
  2. Defending against the underlying act alleged in support of the restraining order; specifically, the affirmative defense of consent against assault and harassment allegations.

In T.M., the parties sporadically engaged in consensual “rough sex” over the course of eight years, with a three years hiatus.  Their encounters included hair pulling, slapping and choking. The parties did not have any ground rules, either verbally or in writing.

The plaintiff obtained a Temporary Restraining Order (“TRO”) two days after the defendant punched her with a closed fist during a consensual sexual encounter.  The parties continued having intercourse after the incident – for approximately 20 minutes as the plaintiff acknowledged.  What happened next is where their respective sides of the story begin to change.  In the initial complaint, the plaintiff claimed that when she told the defendant not to punch her again, he laughed it off and then punched her again during this encounter.  During testimony, the defendant claimed that they only had the discussion after the intercourse and he agreed to never punch her again before leaving her house, and he anticipated that they would continue with their relationship going forward.

Dating Relationship

Neither party defined their relationship as dating in the traditional sense during their testimony.  Additionally, the parties did not hold themselves out to the public as having a relationship. In fact, the defendant hid these encounters from his girlfriend and the only time that the defendant appeared at the plaintiff’s home uninvited was after the plaintiff told his girlfriend that the defendant cheated on her.

Utilizing the dating relationship factors defined in Andrews v. Rutherford, 363 N.J. Super. 252, 260 (Ch. Div. 2003), which we often take for granted when checking off that box on a restraining order, the court allocated the most weight to the length of their relationship, the intimacy involved and the catchall factor as to the uniqueness of their relationship.  Notably the court found:

For the courts to deny this plaintiff victim status could potentially been seen as morally judging a plaintiff who chooses not to engage in a relationship with ‘traditional’ and ‘observable’ indicia of dating.

Additionally, the court opined that a plaintiff enduring abuse in a secret relationship may be even more vulnerable than in a traditional dating relationship.  Thus, the plaintiff prevails on this prong.

Consent

This aspect of the case turned primarily on credibility to determine whether the plaintiff consented to the alleged punch, especially after both parties acknowledged consent for the slapping, hair pulling and choking that would have otherwise qualified as harassment by offensive touching and assault. Although the parties’ testimony differed about the conversation regarding the punch at the end of their encounter, they both acknowledged that they continued engaging in consensual sexual intercourse thereafter.

The court initially found that the plaintiff was credible, noting her candor about the parties’ relationship. However, the defendant became the more credible party after his testimony successfully disputed the plaintiff’s claims about a prior history of domestic violence, which did not exist,  the parties’ conversation after their sexual encounter that evening, and the second punch alleged in the plaintiff’s initial complaint. The court found the defendant so credible that it even repeated his term for the punch as a “tap on the jaw”, after reviewing the stipulated discharge instructions from the plaintiff’s visit to Urgent Care, pictures of the plaintiff’s face on the day of the incident and two days later, and noting that the plaintiff did not have any visible marks during the trial that occurred ten days after the incident.

Erring on the side of caution, the court determined that the issue of consent was a “close call” and analyzed the second prong of a domestic violence analysis, namely whether a Final Restraining Order is necessary. Again turning to credibility, the court determined that the FRO is not necessary to protect the plaintiff and that an FRO cannot be entered to protect the “general public” despite the plaintiff’s (unsubstantiated) claim that other women should be protected from the defendant.

Take-Away

While the plaintiff did not prevail on obtaining a FRO in this sound decision, she did prevail on making a mark in our legal system that traditional relationships are not the only ones requiring attention and protection.  Perhaps this will lead the way to a victim of domestic violence in a private, non-traditional relationship to come forward with his/her story and seek protection.

Lindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Lindsay A. Heller, Associate, Fox Rothschild LLP

Technology is making it easier and easier to satisfy our curiosity about just what the heck the people in our lives are up to.  Are you curious about your husband’s whereabouts?  You could plant a GPS device on his car.  Do you want to know what your wife is saying to the kids?  There are many ways to go about recording those conversations.  Are you dying to know what your spouse is doing on that laptop, tablet, or smartphone of his/hers?  You could install spyware or other programs (I’ve even heard of some of them referred to as “spouseware”) to secretly find out.  Learning about your spouse’s or ex’s comings and goings, who they are living with, or what they are talking to the kids about can all be valuable information when there are custody issues, questions about whether your ex is cohabiting with someone else for purposes of termination or suspension of alimony, and many other legal issues.  It’s certainly tempting…

BUT DON’T DO IT.  At least not without talking to an attorney.  Because even though technology gives you the ability to do this, it doesn’t make it right and it doesn’t make it legal.

I am seeing these issues come up more and more in my practice, and while much is unclear about where the boundaries can and should be drawn because of the fact sensitive nature of the use of technology in family law cases, a few things appear clear to me.  Using technology to track your spouse or significant other leaves you open to a claim of stalking under the New Jersey Prevention of Domestic Violence Act.  When you use technology to record parties to a conversation without their consent, you may also be subject to criminal and civil liability under Federal and State wiretapping laws – in New Jersey, this is known as the New Jersey Wiretapping and Electronic Surveillance Act, N.J.S.A. 2A:156A.  This is not to mention other civil claims such as invasion of privacy.

This is why it is critical that, before you take any step to use technology to surveil your spouse, you speak with an attorney to ensure that you are not doing anything that may subject you to civil or criminal liability, or to discuss alternative options that will allow you to surveil your spouse or family member without taking this risk.  When you are dealing with a criminal charge of stalking, the “But the private investigator I consulted with said it was okay” defense is no defense at all.  While private investigators know all about technology that can be used to surveil your spouse or other family member, they are not always thinking about or even aware of the legal ramifications of their advice.

And, importantly, once the proverbial cat is out of the bag and your spouse or other family member learns that they were being spied on, you cannot try to cover your tracks by destroying the evidence – this is known as “spoliation” of evidence and if you do it, you will likely be subject to sanctions and/or adverse inferences drawn by the Court.  In other words, the Court will punish you for destroying evidence, and may assume that you did engage in the illegal use of technology by virtue of the fact that you felt the need to destroy the evidence of your conduct.  Just ask the Plaintiff in the recent case out of New York State, Crocker C. v. Anne R., in which the Plaintiff installed spyware on his wife’s electronic devices to monitor all of her communications and listen in on her conversations with third parties including privileged communications with her attorneys and her psychiatrist.  When the Defendant discovered this, the Plaintiff immediately “wiped” all trace of the spyware from these devices so that it was not possible to determine the extent to which he intercepted her communications.  He was sanctioned and found in contempt.

And if you find yourself on the receiving end of being spied on by your spouse or family member, it is critical to obtain the immediate services of a forensic expert who can examine any device being used to record or surveil you and can take steps to preserve any such device for evidence purposes.

Remember:  In many ways, the legal uses of technology – especially in the context of family law issues – is a bit like the Wild West.  We are still trying to figure out the rules and the exceptions to those rules when it comes to the legal issues that arise in family law disputes, and it is always best to consult with an attorney before taking action.

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.

The word “harassment” is one of those terms I hear all the time as a family law attorney.  I have had complaints from clients that their spouse made a mess of the house just to “harass” them.  Or, I have had adversaries who intentionally misconstrue every single dispute between our clients as “harassment.”  It is just one of those hot-button words that everyone likes to use so much, that there are times when I wonder whether it has lost all meaning with judges and other family lawyers.

Merriam-Webster defines the word “harassment” as follows:

  1.  a: Exhaust; fatigue; b: 1) to annoy persistently; 2) to create an unpleasant or hostile situation for especially by uninvited and unwelcome verbal or physical conduct.
  2. to worry and impede by repeated raids.

And maybe making a mess around the house in order to drive your wife crazy or picking fights about what to feed the children, who last filled the car up with gas, or who is responsible for paying the nanny this week is harassment as Merriam-Webster defines it.

But when we start bandying about this word to one another before the Court and in the context of family law litigation, there is a legal definition that applies and that we should all be mindful of before labeling what is simply domestic contretemps as legally actionable harassment.

A person commits the criminal act of Harassment when:

[. . .] with purpose to harass another, he:

a.  Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b.  Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c.  Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

N.J.S.A. 2C:33-4.

Thus, to be legally actionable, the “harassment” must meet the above criteria. In the recent matter of State v. Burkert, the New Jersey Supreme Court addressed subpart (c) of this definition of harassment. The Court in Burkert found that – where the alleged harassment is based on purely expressive activity – a liberal reading of subpart (c) may run afoul of the First Amendment right to freedom of speech, which guarantees protection of speech even if it is offensive in nature.

In Burkert, the “purely expressive activity” had to do with the Defendant super-imposing some very, uh, colorful, language on a photograph of his co-worker’s wife and circulating it at work.  There was no question this act was committed “with purpose to alarm or seriously annoy” Burkert’s co-worker.  At the same time, to find Burkert guilty of harassment for engaging in this speech would run afoul of his First Amendment Protections.  No matter how offensive speech may be, it is generally protected barring a risk to one’s reasonable expectation of privacy or safety.

In order to reconcile First Amendment Protections with subpart (c) of the statute, then, the Court held the following:

Therefore, for constitutional reasons, we will construe the terms ‘any other course of alarming conduct’ and ‘acts with purpose to alarm or seriously annoy’ as repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy.

While State v. Burkert is a criminal case, it is important for all family law practitioners and any individual considering obtaining a domestic violence restraining order based on harassment to take heed of Burkert.  In cases where a restraining order is sought based on allegations of harassment, the plaintiff must prove that harassment has occurred as defined by the above statute.  Therefore, the Court’s narrow construing of subpart (a) of the statute is critically important to those seeking the protections of a domestic violence restraining order based on harassment.

Practically speaking, then, what does this ruling change?  Well, it ensures that speech alone cannot be the basis of a harassment crime or of a domestic violence alone.  For example, if your spouse called you by an expletive instead of by your name 100 times in a 48 hour period, it might fit the Merriam-Webster definition of harassment, but it won’t fit the new definition of harassment under subpart (c), unless combined with harassing conduct and / or speech that reasonably makes you fearful for your life, or intolerably interferes with your reasonable expectation of privacy.

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.

Notice and opportunity to be heard is one of the most fundamental tenants of due process in this country. Every litigant, no matter how small the case, has the right to have his or her “day in court.” As we learn in the recent Appellate Division decision of T.M.S. v. W.C.P., that applies equally to a plaintiff – the party bringing the action – and to a defendant – the party defending against the action.

Some background as to the Prevention of Domestic Violence Act (“PDVA”), N.J.S.A. 2C:25-17 to -35, may be helpful to understand the trial court’s error in this case.

Under the PDVA, a Court may enter a restraining order pursuant to a complaint to protect a victim of domestic violence. Following a hearing, the court will issue a Final Restraining Order (“FRO”) if it finds that the victim was subjected to domestic violence by someone with whom the victim has a domestic relationship. The victim must prove that an act of domestic violence occurred and that a restraining order is necessary to protect the victim from immediate danger or future acts of domestic violence.

Although restraining orders may be termed “final” that does not mean that they can never be vacated. Under the PDVA, a court may vacate an FRO upon good cause shown. N.J.S.A. 2C:25-29(d).

The case of Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995) establishes eleven factors a court must weigh to determine if a defendant established the requisite good cause to vacate an FRO:

(1) whether the victim consented to lift the restraining order;

(2) whether the victim fears the defendant;

(3) the nature of the relationship between the parties today;

(4) the number of times that the defendant has been convicted of contempt for violating the order;

(5) whether the defendant has a continuing involvement with drug or alcohol abuse;

(6) whether the defendant has been involved in other violent acts with other persons;

(7) whether the defendant has engaged in counseling;

(8) the age and health of the defendant;

(9) whether the victim is acting in good faith when opposing the defendant’s request;

(10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and

(11) other factors deemed relevant by the court.

In T.M.S., a final restraining order was entered against the defendant on November 29, 2006. In 2008, the defendant moved, unsuccessfully, to vacate the FRO pursuant to N.J.S.A. 2C:25-29(d) and Carfagno. Subsequently, defendant filed a second Carfagno application to dismiss the FRO. The plaintiff did not appear for the hearing. After determining plaintiff had been properly served with notice of the hearing, the court granted the defendant’s unopposed application.

The Court made the following findings in support of its conclusion:

  • Plaintiff did not consent to the FRO’s dissolution because she was not present.
  • The facts proved defendant never violated the FRO because the parties had no reason to interact; specifically, because they did not have children and both were in committed relationships.
  • Defendant’s prior insobriety partially contributed to the domestic violence incident, and he had been sober for nearly eight years and even chaired his sobriety group.
  • Defendant attended domestic violence counseling.
  • Although physically Defendant was a “big guy,” defendant had health problems that reduced his strength.
  • As to plaintiff’s good faith, the court noted she did not appear in court, and there were no additional orders in other jurisdictions against defendant.

With the FRO vacated, defendant moved for relief from the weapons forfeiture, which requires a defendant to surrender his or her weapons upon the entry of the restraining order. At the initial weapons forfeiture hearing, a question arose for the first time as to whether plaintiff was properly notified of the dismissal of the FRO.

On the last day of the hearing, on December 15, 2015, the court, who had heard the initial Carfagno application, reversed its initial determination plaintiff was validly served with defendant’s dismissal application, and vacated the December 8, 2014 dismissal order, reinstating the FRO. As a result, the weapons forfeiture matter was dismissed. The Court determined that an old address on file for the plaintiff was used and it was questionable as to whether she still remained resident there.

While this case certainly calls into question the plaintiff’s notice and opportunity to be heard on the Carfagno hearing vacating the FRO, the Court focused on the Court’s violations of the defendant’s due process here. On appeal, defendant argued the PDVA does not permit a court to reinstate an FRO on its own motion. He asserted, although a trial court may revisit an interlocutory order, it could not sua sponte review a final order.

The Appellate Division agreed with the defendant and reinstated the dismissal. In doing so, the Appellate Division focused primarily on the fact that, by sua sponte reinstating the FRO in the ancillary weapons forfeiture matter, the court overlooked fundamental due process principles. If plaintiff challenged the order dismissing the FRO, she was required to file a motion for relief in the domestic violence matter, so defendant could be heard and there, address the issue of service.

The Court concluded that requiring plaintiff to reopen a dismissed TRO or FRO must be made in the underlying domestic violence matter, not an ancillary matter, and further requiring such requests to be made by formal application equally will (a) protect domestic violence victims by providing them with formal notice where there is an application to vacate the orders of protection, and, (b) assure due process for defendants.

In a footnote of the case, the Appellate Division also suggested the Conference of Family Presiding Judges consider promulgating formal operational guidance requiring plaintiffs to periodically update their address with the Family Division. We will let you know if this occurs.

_________________________________________________________________________________________________________________________________________

Eliana Baer, Associate, Fox Rothschild LLP Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

The standard for entry of a Final Restraining Order (FRO) under the NJ Prevention of Domestic Violence has been long established by the Courts (and discussed many times on this blog); under the seminal case Silver v. Silver, in order to obtain an FRO, the plaintiff must have a qualifying relationship with the defendant, and also has the burden to establish that:

  1. The defendant committed one or more of the predicate acts of domestic violence identified in the Prevention of Domestic Violence Act; and
  2. There is a need for the protection of an FRO going forward.

In a recent published (precedential) decision, A.M.C. v. P.B., the Appellate Division addressed the second prong of that test and the misapplication of the facts to the law that led to the trial court denying the plaintiff’s request for a Final Restraining Order.  In this case, the plaintiff filed a temporary restraining order alleging that the defendant had committed the predicate acts of harassment, assault, and terroristic threats.  At trial, the Court made a factual finding that the predicate act of assault had occurred.  More specifically, the Court found that the act of assault that formed the predicate act of violence for the complaint had occurred and that the defendant had assaulted the plaintiff in an attempt to prevent her from fleeing the marital home.  Further, the trial Court found that a prior act of assault had occurred three weeks earlier.

Despite making those factual findings, the trial court denied the Final Restraining Order because it found that – in spite of two acts of assault that had occurred within a three week period – the plaintiff did not need the protection of an FRO to prevent the defendant from committing further acts of domestic violence against her.  The trial court made this finding based chiefly on 1) the fact that the defendant had not contacted the plaintiff in the 10 days between her having filed the TRO and the Final Restraining Order hearing; 2) the parties’ marriage and, indeed, relationship, was short-term; and 3) the parties did not have children together, which was seen by the court as a mitigating factor because, the judge reasoned, there was less of a likelihood of interaction between the parties since they would not have to go on to co-parent together.

The plaintiff appealed.  On appeal, the Appellate Division squarely addressed the question, “Despite finding that a defendant committed one of the predicate acts listed in N.J.S.A.2C:25-19a, when may a court properly refuse to issue restraints?”  Hearkening back to the seminal Silver case itself, the Appellate Division answered that question by holding that when the predicate acts involves a violent offense – such as assault – and the Court has found that it occurred, then “the decision to issue an FRO ‘is most often perfunctory and self-evident.'” (quoting Silver at p. 127).  The Appellate Division reversed; it found that, in determining that the plaintiff did not need the protection of an FRO going forward, the trial court had “no rational basis” for relying on the length of the marriage, the fact that the parties have no children, and the fact that the defendant had not contacted the plaintiff between when she fled the home and the day of the FRO hearing.  And this makes sense:  if it has been found that a given defendant has a propensity for physical violence against the plaintiff, this should be more persuasive than any of the facts that the trial court relied upon when it made its decision.  Just because a relationship is short-term and there are no children, or the defendant didn’t contact the plaintiff during the ten day period between issuance of a TRO and the FRO hearing, doesn’t lessen the likelihood that the defendant will target the plaintiff with physical violence again.

The takeaway?  The Appellate Division has held that, where the court finds that a predicate act of physical violence (for example, assault or sexual assault) has occurred, the fact that the act was violent in nature should be weighted heavily by the trial judge when assessing whether there is a need for the protection of the FRO going forward, and that an FRO should generally be issued in these instances.

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.

Recently, the New Jersey Supreme Court provided some important clarification with regard to the issue of firearm forfeiture in the wake of an arrest and firearm seizure pursuant to the New Jersey Prevention of Domestic Violence Act (NJPDVA), N.J.S.A. 2C:25-17 to 35.  In In the Matter of the Application of New Jersey for the Forfeiture of Personal Weapons and Firearms Identification Card Belonging to F.M., the Supreme Court squarely addressed the following important question:  Under what circumstances can a personal firearm and firearms purchaser identification card seized pursuant to the NJPDVA be forfeited pursuant to the firearms forfeiture statute N.J.S.A. 2C:58-3(c)(5)?

The Facts & Evidence

The firearm owner at the center of this case – “F.M.” – was involved in a Domestic Violence proceeding in March 2010, wherein he was named defendant.  As a result of the domestic violence incident, F.M.’s personal firearm and identification card were confiscated by the police.  In addition to the domestic violence proceedings, F.M. was charged with simple assault.  Notably, F.M. himself worked as a police officer and, therefore, had not only a personal weapon but also a service weapon.  At a hearing to determine whether a Final Restraining Order should be entered against F.M. for the protection of his wife, the Court decided against the entry of same and dismissed the case against F.M.

Although one might think that, upon dismissal of an FRO, any weapons seized in connection with the restraining order are automatically returned to the defendant, this is not always the case.  The State may move to forfeit a personal weapon and identification card under N.J.S.A. 2C:58-3(c)(5) even if the domestic violence case under which the weapons were initially seized is dismissed.  This is precisely what the State did in the instant case.  Reserving on the State’s motion, the trial court judge noted that the court would issue a decision on the final disposition of F.M.’s personal and service weapons after he completed a batterer-intervention program and attended individual counseling.  F.M. did so, and subsequently filed a motion seeking the return of his personal weapon, the weapon at issue in this matter.

The State opposed F.M.’s motion, arguing that the return of F.M.’s personal firearm and identification card would not be in the interest of the public health, safety, or welfare.  To make out its case, the State relied upon the testimony of F.M.’s wife, who testified as to F.M’s history of violence against her, as well as the arresting office who responded to the March 2010 incident and confiscated F.M.’s personal firearm and identification card.  Interestingly, the State also relied upon the testimony of two licensed psychologists who had previously performed Fitness for Duty (FFD) evaluations on F.M., and had interviewed F.M.’s wife in connection with same.  Although their evaluations were directly applicable to the issue of F.M.’s service weapons, their testimony was permitted to address the issue of forfeiture of his personal weapon as well.  One of the psychologists had concluded that F.M. was not fit for full duty and recommended that he be disarmed because he was a “danger [] to himself or others.”  The other psychologist concluded that, although he couldn’t be classified as having a personality disorder, F.M. exhibited elements of various personality disorders that negatively impacted his ability to effectively serve as a police officer; he concluded that F.M. suffered from “a nearly paranoid sense that everyone was out to get him, poor impulse control, poor anger control, and poor judgment.”  He also stated that he believed the public would be endangered if F.M. continued to serve as an armed police officer and that F.M was not fit for duty.

The Path to the N.J. Supreme Court

Largely because there were no findings of clinical mental illness or personality disorder – but rather only elements of same, or what the trial court judge called “subclinical personality styles and tendencies” – the trial judge ordered the return of the personal weapon and identification card.  Interestingly, the Court rejected the psychologists’ conclusions as to the credibility of F.M.’s wife, because the judge him or herself had had more “exposure” to the altercations between F.M. and his wife as the Family Part Judge handling their domestic violence proceedings. The Family Part judge also seems to have concluded that F.M.’s wife had played a part in instigating the dispute that led to the seizure of the weapon, and that there was no prior instance during which F.M. had actually used a gun to harm anyone.  The Appellate Division largely agreed with the Family Part judge’s analysis and findings, noting that deference is accorded to Family Part judges given their intimate involvement with the facts of family part cases.  The State then appealed to the Supreme Court, arguing that the Family Part judge had misapplied the law.

The N.J. Supreme Court Decision

The N.J. Supreme Court agreed with the State as to its contention that the Family Part judge had misapplied the law and, in according the Family Part deference, the Appellate Division had erred.  In making its decision, the Court looked to the applicable statute which describes who may obtain a personal firearm and identification card, N.J.S.A. 2C:58-3(c), which states:

No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth.

The statute goes on to list 10 “disqualifiers” for purchase of a personal weapon and issuance of a firearms purchaser identification card, including:

(1)  To any person who has been convicted of any crime, or a disorderly persons offense involving an act of domestic violence as defined in section 3 of P.L. 1991, c.261 (C.2C:25-19), whether or not armed with or possessing a weapon at the time of such offense; [. . .](5) To any person where the issuance would not be in the interest of the public health, safety, or welfare; [. . .].

Relying on prior decisions, the Court noted that, in order to forfeit a weapon under subpart five (5) of the statute, the State only had to prove by a preponderance of the evidence (a lower evidentiary standard equating to “more likely than not”) that an individual’s possession of a firearm would be against the public health, safety, or welfare.  The purpose of the low evidentiary standard is, perhaps obviously, “to prevent firearms from coming into the hands of persons likely to pose a danger to the public.”

Contrary to the holding in the lower courts, the Supreme Court found that the  testimony of F.M.’s wife, the responding officer, and the psychologists – despite their lack of finding a clinical mental illness or personality disorder – suggested that F.M.’s possession of a firearm would indeed more likely than not pose a danger to the public.

Takeaways for the Family Law Practitioner

Those of us who practice family law are well versed in the precedential law that says that the Appellate Division and Supreme Court accord great deference to Family Part Judges.  In this case, however, the Supreme Court reminded us that, although such deference is given to Family Part judges as to the facts of a case, a judge’s legal determinations are of course not immune to review by the higher courts.  A Family Part judge may have a greater “feel” for the case given its familiarity with the parties and issues, but – and perhaps this is stating the obvious – that doesn’t mean their application of the law to the facts must be given deference on appeal.  In this case, the Family Part overlooked the plain language of the statute and appropriate evidentiary standard, and instead made its own justifications for returning the personal weapon and identification card to the defendant.

For those involved in domestic violence matters, this case also serves as a reminder that weapons forfeiture under that statute is black-and-white when an FRO is entered.  If a final restraining order is entered, under subpart (1) of N.J.S.A. 2C:58-3(c), the defendant’s firearm and identification card will be forfeited, something that must be taken into consideration if you are representing a defendant who is a licensed firearm owner.

And yet, if the domestic violence case is dismissed, the issue becomes more gray.  Even if the domestic violence matter that led to the initial confiscation of a firearm and ID card is dismissed against a firearm-owning defendant, the case discussed here makes clear that weapons can still be forfeited if there is credible testimony showing by a preponderance of the evidence that the defendant may be a danger to the public.  Notably, the outcome here also shows that, even if a plaintiff’s testimony in his or her domestic violence matter is insufficient to sustain the entry of a restraining order under the NJPDVA, his or her testimony may be used to prove that the defendant’s firearm and identification card should be forfeited on other grounds.

Whether you represent the party pursuing a restraining order or defending against one, this is important knowledge to have when dealing with a firearm-owning client or adverse party in a domestic violence matter.

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.

In August 2015, the New Jersey Legislature formally amended the Prevention Against Domestic Violence Act (N.J.S.A. 2C:25-19(a)) to include the predicate act of criminal coercion as a fifteenth form of domestic violence (in addition to: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, and stalking, all of which are as defined under their respective criminal statutes).

By way of background, in order to obtain a restraining order under the NJ Prevention Against Domestic Violence Act, the plaintiff/victim must have a qualifying relationship with the defendant, must prove that one or more of the (now) 15 qualifying “predicate” acts of domestic violence was perpetrated against you, and  must also show that there is a continuing need for protection based on the facts of your case.  The addition of criminal coercion as a predicate act opens an additional avenue by which victims can seek to obtain protection under the Act.

Criminal coercion is defined as a threat made to unlawfully restrict freedom of action, with a purpose to coerce a course of conduct from a victim which defendant has no legal right to require, including threatening to:

  1. Inflict bodily injury on anyone or commit any other offense;
  2. Accuse anyone of an offense;
  3. Expose any secret which would tend to subject any person to hatred, contempt or ridicule or to impair credit or business repute;
  4. Take or withhold action as an official or cause an official to take or withhold action;
  5. Bring about or continue a strike, boycott or other collective action except that such a threat shall not be deemed coercive when the restriction compelled is demanded in the course of negotiation for the benefit of the group in whose interest the defendant acts;
  6. Testify or provide information or withhold testimony or information with respect to another person’s legal claim or defense;
  7. Perform any other act which would not in itself substantially benefit the defendant but which is calculated to harm another person with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.

coercion graphic

A recent opinion penned by Judge Jones, J.L. v. A.C. specifically addressed the first category of criminal coercion.  In that case, Judge Jones found that the defendant had criminally coerced the plaintiff into meeting with him, at which time he brutally beat her, by threatening the safety of her child if she refused to meet with him as he demanded.  As Judge Jones notes in his opinion, the NJ Prevention Against Domestic Violence Act has been criticized for its failure to provide protection to children because the Act only extends protections to victims who are over the age of 18 (except in cases where the relationship between the victim and defendant is a dating relationship).  Thus, Courts have typically denied relief to plaintiffs who try to obtain restraining orders for acts of violence committed against their children, rather than against them personally.

The major takeaway from this decision?  As a parent, it seems that you can definitively obtain protection under this Act where the defendant coerces a course of conduct from you by threatening to inflict bodily injury or commit an offense against your child.  It would also seem that this could extend to threats against anyone else in the plaintiff/victim’s life, including a boyfriend or girlfriend, co-worker, friend, or other family member.  However, there are limits.  Although Judge Jones’s opinion emphasizes that the new predicate act of criminal coercion fills in the gap where there was no way to obtain a restraining order for threats of violence toward a child or third party, it is important to note that there must also be “purpose to coerce a course of conduct” from the plaintiff him/herself.  A threat to harm a child or third party is not enough; that threat must cause the victim to engage in a particular course of conduct.  In J.L. v. A.C., that course of conduct was the act of meeting with the defendant, which the victim would not have done but for the threat to her child.

Additionally, it is vital to remember that the restraining order is still going to be between the plaintiff and the defendant – NOT between the defendant and the third party against whom a threat has been levied.  With that said, the court has always been empowered to issue a final restraining order that includes a victim’s family members as additional protected persons.  As an important practice tip, if you are an attorney or a self-represented party seeking a restraining order based upon criminal coercion that includes a threat to inflict bodily injury or commit an offense against a third party, it is imperative that you seek to include the threatened third party as a protected party on any final restraining order issued by the Court.

 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.

When most people hear the horrific phrase “domestic violence”, they think only of the physical abuse or threats of physical abuse inflicted upon another; however, financial or economic abuse exists in approximately 98% of all domestic violence situations, according to the National Network to End Domestic Violence.

Financial or economic abuse is defined as “making or attempting to make a person financially dependent”. In order to accomplish this form of dependency, an abuser may resort to the following tactics:

  • Maintaining sole title and control over bank accounts, real property or other assets;
  • Withholding or restricting access to money;
  • Making all major financial decisions without consulting the victim;
  • Refusing to put the victim’s name on joint assets or removing the victim’s name from previously joint assets so that the victim does not have any knowledge of the family’s resources, or own any assets/property;
  • Using the victim’s personal identity information (such as Social Security number) to open credit card accounts or obtain loans, which are then never paid (destroying the victim’s credit);
  • Forcing the victim to co-sign credit card accounts or loans;
  • Forcing the victim to sign a power-of-attorney so that the abuser can sign legal or financial documents on the victim’s behalf, without their knowledge;
  • Forcing the victim to cash-in assets in his/her name only, and turn them over to the abuser;
  • Placing the victim on an “allowance”;
  • Forcing the victim to account for all money spent, including providing proof such as receipts;
  • Forcing the victim to beg for money to meet basic needs, such as food, clothing or shelter, yet spending money freely on him/herself;
  • If the victim is employed, forcing him/her to turn over all earned income/paychecks to the abuser;
  • Harassing the victim at work or threatening the victim’s employer with the intention to get/have the victim fired (and therefore cannot work and earn money);
  • Isolating the victim from the family, friends and support system and/or turning others against the victim;
  • Preventing the victim from attending school or job-training programs;
  • Preventing the victim from obtaining employment, thereby forcing the victim to be totally dependent; and/or
  • Threatening the victim that if they leave they will never see the children again and will never win a custody dispute if they go to Court.

39290963_s

Financial abuse typically starts out slowly, and may not even be recognizable at first. Simple statements such as “let me handle the finances, you have enough to worry about” or “since I’m better at saving, let me maintain our bank accounts”, evolve into situations where the abuser has gained a total financial stronghold over the victim.

The number one reason victims of financial abuse remain or return to abusive relationships is because they do not have the financial resources to escape. Thus, victims of financial abuse are caught in an inevitable Catch 22: either they stay in the abusive relationship (physical, emotional and/or financial abuse) or they leave and risk becoming impoverished and/or homeless because they do not have the financial wherewithal to even obtain a bus ticket. Worse, if the abuser has incurred debt under the victim’s name and/or destroyed their credit, the victim will not even be able to obtain housing, a credit card, a cell phone or even certain jobs. It’s no wonder victims choose to stay in unhealthy situations.

Moreover, abusers often manipulate the victim into believing that they cannot leave because they will not survive without them; however, the situation becomes even more contentious when children are involved. Abusers often threaten victims that if they leave, they will “never see their children again”, they will call child protective services and/or utilize the court system to gain custody. Unfortunately, victims have no reason to believe otherwise. Contacting a knowledgeable family law attorney can help alleviate some of the fiction perpetrated by abusers, which usually has no basis in law, and a skilled practitioner can help you take the first steps into protecting yourself and your children, and rebuilding your life.

Victims of domestic violence should be aware of their legal and other options. Below is a list of some New Jersey based resources:

If you or someone you know is a victim of financial domestic violence, below is an excerpt from the Forbe’s article ‘I’ll Take Care of the Bills’: The Slippery Slope Into Financial Abuse (see citation below) that provides a strategy for victims of financial abuse to start breaking the cycle:

  1. Learn more about it to see if your situation matches the description. Find a checklist online, such as this one, this one, this one or this one.
  2. If you believe you are a victim, start organizing important financial and personal documents such as bank statements, birth and marriage certificates, etc., and store them with friends or family or in another secret, safe location outside of your home.
  3. Earn extra money however you can, and keep it with a trusted person or in a secret location, so you can rely on this when you leave.
  4. Get a free copy of your credit report at Annual Credit Report. Report or dispute any fraudulent charges.
  5. Create a budgetso you know how much your housing, food, transportation and other expenses will cost when you leave.
  6. Change your PIN codes and passwords so your abuser can’t access your financial information or track your activity.
  7. Check out resources like URI NYC, The National Domestic Violence Hotline(1-800-799-Safe (7233)) and Safe Horizon.

Resources used for this article:

  1. Shin, Laura. “‘I’ll Take Care of the Bills’: The Slippery Slope Into Financial Abuse.” Forbes. 19 March 2015. Web 05 Feb. 2016.
  2. Triffin, Molly. “The Warning Signs of Financial Abuse.” Daily Worth. 20 July 2015. Web 05 Feb 2016.
  3. Purple Purse; http://purplepurse.com/