Domestic Violence

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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.

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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.

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.

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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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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.

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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/

 

We’ve all heard the maxim “One Family, One Judge” in the context of matrimonial matters. The underlying premise is that one judge in the Family Part should hear the entire case because that judge is intimately familiar with the facts of the case, has observed the parties and their demeanors and perhaps has made credibility findings. One case even described this practice as a “matter of common sense.”

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However, the situation becomes a little bit more murky in the context of domestic violence.

To provide some background:

Often an act of domestic violence results in 2 separate proceedings: one in family court and another in municipal court. This is because New Jersey’s Prevention of Domestic Violence Act references actual criminal offenses prosecuted under the criminal code.  Simply put: the family part deals with the quasi-criminal action – the issuance of a restraining order utilizing the elements set forth under the criminal code – and the municipal court deals with the purely criminal action – the conviction for the actual violation of the criminal code.

With that in mind, does the family part have authority to make a determination as to the issuance of a final restraining order AND take jurisdiction over any resulting criminal action that may be pending in municipal court?

Judge Jones weighs in in the case of M.R. v. T.R.

In M.R., there were three cases that were simultaneously pending:

CASE #1: Wife filed a domestic violence complaint filed on July 2, 2014, alleging that her husband harassed her by coming toward her in a physically menacing fashion, to the point where she used pepper spray in self-defense;

CASE #2: Husband became the complaining witness in a municipal court action against the wife, alleging that the wife had assaulted him with pepper spray in an unprovoked fashion; and

CASE #3: Wife filed a complaint for divorce against the husband on July 21, 2014, who in turn filed a counterclaim.

Case #1, the domestic violence complaint, was ultimately dismissed by the Court, upon a finding that there was insufficient evidence to support the entry of a final restraining order against the husband. However, Case #3, the divorce action, remained pending in the family court. Case #2 likewise remained pending in the municipal court.

As part of the divorce action (Case #3), the wife requested that the court transfer and consolidate the pending municipal court action (Case #2) with the divorce action (Case #3).   The husband opposed the transfer and asked that Case #2 remain in municipal court for adjudication.

Judge Jones considered the motion, which he ultimately denied. In doing so, he relied extensively upon R.5:1-2(c)(3), which states:

“[a]ny non-indictable offense or violation pending in the municipal court . . . may be transferred for trial and disposition to the Family Part pursuant to R.5:1-3(b)(2) if the gravamen of the offense or violation arises out of a family or family-type relationship between the defendant and a victim.”  [Emphasis added.]   R.5:1-2(c)(3). “Sub-paragraph (c)(3) permits transfer to the Family Part of all criminal and quasi-criminal matters pending in the municipal court where the gravamen of the offense arises out of a family or family-type relationship between the defendant and victim.”  [Emphasis added.] See Comment 2.3 to R.5:1-2(c)(3).

As Judge Jones noted, only two unreported decision have touched upon this issue. The first, Brown v. Brown, 196 N.J. Super. 92, 94-5 (Chan. Div. 1984), involved the transfer of a municipal court complaint of harassment against a spouse made by her spouse.

The Brown Court ultimately granted the transfer, stating “[t]his court is familiar with the parties’ situations and is best suited to address related problems as they arise.” However, the Court emphasized that such a transfer is a matter of judicial discretion, to be considered on a case by case basis.

By contrast, the second case, State v. Hall, 203 N.J. Super. 423, 426 (Law Div. 1985), denied the transfer of the municipal case because there was no actual case pending in the family court at the time of the application to transfer.

Against this legal backdrop, the Judge Jones opined that to transfer the matter from municipal court to the family part would give rise to multiple legal complications and conflicts. Primarily, Judge Jones cited the prohibition against utilizing testimony in a domestic violence matter in a simultaneous or subsequent criminal proceeding under N.J.S.A. 2c:25-29(a).  The spirit of the rule would naturally raise concerns if the same judge is left to consider both proceedings.

The Court concluded that because there is an inherent benefit of keeping litigation as free as possible from, at the very least, the perception of conflict and evidentiary confusion, there is “logical value” in avoiding the same judge hearing both the domestic violence action and the criminal action.

Moreover, Judge Jones highlighted the distinctions between the domestic violence actions, as follows:

(1)        The domestic violence action in the family part is filed by the victim, whereas the criminal action in the family court is filed by the State of New Jersey. 

(2)        The burdens of proof in the two courts differ as well, with the former being decided by a preponderance of the evidence, and the latter being decided beyond a reasonable doubt. 

(3)        In the criminal proceeding, the defendant has the right to remain silent to prevent self-incrimination.  However, in the context of a civil domestic violence proceeding, the adverse party may be called to testify against his or her own interest.

(4)        In order for the domestic violence plaintiff to be issued a restraining order, he or she must meet a 2 pronged Silver test: (1) that an act of domestic violence occurred, and (2) that there is a need for a restraining order to prevent ongoing violence and to protect the victim from further abuse.  The criminal court, by contrast, determines whether or not a defendant is guilty of an act of violence and enters a conviction accordingly.  Typically, no civil remedies are addressed.

(5)        In a domestic violence matter, a plaintiff may be represented by private counsel.  In a criminal proceeding, the case may proceed with a criminal prosecutor.  In that regard, there are different obligations to the defendant and there is a specific prohibition against a private attorney serving as a prosecutor.

(6)        In a criminal action, there is a right to pretrial discovery.  No such right exists, however, in a domestic violence proceeding, which typically is a summary proceeding.  Discovery in a domestic violence matter is only granted upon application and in the discretion of the court.

(7)        In a domestic violence proceeding, the case proceeds to a hearing under a very specific timetable – usually 10 days.  There is no such deadline in municipal courts.

Judge Jones aptly stated that the distinctions in the two proceedings are the very reason that the prohibition against the use of testimony from the domestic violence proceeding in a subsequent criminal proceeding exist to begin with.

The Court concluded that “the concept of transferring a municipal court case to family court to be heard by the same judge…is fraught with potential complications, risks and legal pitfalls.” It was for that reason that the Court denied the motion and both cases proceeded in their original intended venues.

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head_BaerEliana 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.

Accordingly to a Pew Internet Project research study, as of 2014:

  • 90% of American adults own a cell phone
  • 32% of American adults own an e-reader
  • 42% of American adults own a tablet computer
  • 64% of American adults own a smartphone

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As with all advances in technology however, we take the good with the bad.  For example:

The good: You can see cute pictures of your kids every day while you’re at work.

The bad: You distract yourself all day with cute pictures of your kids while you’re at work.

The good: You can communicate with that special someone day and night.

The bad: That special someone turns out to be not-so-special and communicates with you day and night.

Cell phones enable us to access information rapidly, and to communicate with loved ones around the world instantaneously.  But that instantaneous communication comes at a price.

In the recent decision of E.C. v. R.H., Judge Jones in Ocean County examined the proper use of cell phone evidence when communications potentially cross the line from wanted to unwanted; from mild annoyance, to harassment.

E.C. involved a situation where one party alleged that she was being harassed via text messages, voicemails and social media evidence. She wanted the defendant to leave her alone, and asked the Court to enter a final restraining order against him. In support of her claim, E.C. sought to introduce evidence directly from her cell phone.

In examining the question of how to appropriate accept evidence from E.C.’s cell phone into the record, Judge Jones delineated a litany of issues with utilizing evidence that comes directly from the cell phone:

  1. When a litigant attempts to offer images on a cell phone screen, it becomes difficult to preserve the image for the record unless there is a hard copy printout of the image as well.
  2. The small screen on a cell phone makes it impossible to see an entire document at one time, which create reading challenges even after on-screen enlargement.  Scrolling can become time consuming and cumbersome.
  3. It is impractical for the judge and both of the parties to view the evidence on the cell phone at the same time.  This would require the litigants to pass around the cell phone, which is even more complicated when there is a temporary restraining order in place and the parties cannot physically sit or stand next to each other to view the cell phone evidence at the same time.
  4. If a party orally reads the text or email in to the record, without a hard copy in front of each party, there is no guarantee that the oral recitation will be accurate.  It can also be time consuming and confusing if there are multiple lengthy text messages.
  5. With voicemails stored directly on cell phones, it is difficult to hear the exact words.  The Court suggested that a CD or transcript may be useful to assist in deciphering the recording.
  6. The evidence cannot be preserved so that the Court can review it as part of the deliberation process before rending a decision.

In light of the above issues, the Court suggested that the following rules of thumb should be followed for litigants wishing to introduce evidence stored on cell phones:

    Cell Phone Evidence                      Hardcopy form

A) e-mails and texts                          printed on paper

B) Social media messages                printed on paper

C) Photographs                                  printed on paper

D) Audio Recording                          duplicated on C.D. or cassette

E) Video Recording                           duplicated on DVD

 With evidence rules struggling to keep up with rapidly changing technology, Judge Jones’ decision again provides a practical solution to a very prevalent and difficult problem faced by pro se litigants and attorneys alike.  Indeed, the goal of the prevention of domestic violence act is to provide victims of domestic violence with protection from harm.  The last thing that should happen is for a victim to be denied that protection simply because they were unable to introduce relevant and compelling evidence because it was stored in an unusable format.

So what should you do if you have evidence stored on your phone?  Here are just a few tips I’ve picked up along the way from my own experience:

Electronic Messages (emails, text messages, social media messages, etc.):

The best thing to do is to take screenshots of electronic messages and send them to your attorney for review.  There are also paid services available that can do a “dump” of your phone into a PDF document that may be more helpful if there are a large volume of messages you wish to preserve and introduce as evidence. Make sure they are clear such that a third party could decipher the sender of the text message and the receiver of the text message.

Also, be sure to bring the cell phone to Court just in case there is an allegation that the text messages were somehow altered. I once encountered a situation where one party had deleted individual text messages before sending them to her attorney and my client was able to take out his phone and demonstrate that the messages were tampered with.  It ruined the other side’s credibility and demonstrated that the whole text message exchange was rather innocuous, and in fact, demonstrated that my client was in the right.

Audio Recordings:

For audio recordings, while a CD should certainly be made so that the Court can preserve the evidence and listen back to it during deliberations, you should also make sure that there is a place to play the recording in the courtroom.  A laptop usually cannot give you the kind of audio reach for all parties, and the court to hear the message.  You should opt for an audio system with either a CD slot or an auxiliary jack so that you can connect your cell phone to the speakers.

Video Recordings:

Again, make sure there is a place to play video recordings in the courtroom. Again, there are issues with using a laptop, both because it’s too small for everyone to see, and because the audio is insufficient.

Just in case you need to authenticate video, make sure to preserve the original recording on your cell phone so that the Court can verify that the duplicate has not been altered.

Clients should be counseled early on regarding the necessity of preserving information. Similarly, when litigants are pro se they should be advised when they obtain a temporary restraining order that cell phone evidence will not be admitted unless it is in a usable format.

In fact, Judge Jones suggested the following language be added to temporary restraining orders:

If either party is seeking to introduce information stored on his/her cell phone (emails/texts/Facebook posts, etc.), such information should be printed out in triplicate in organized fashion with page numbers on the bottom right hand corner for easy reference. Additionally, if either party is seeking to introduce evidence from their cell phone relating to voice mails, video streams or photographs, same should be duplicated onto a CD or DVD as applicable so that same may be marked for identification in a tangible form.

In the end, Judge Jones allowed for a brief adjournment so that the parties could make hard copies of any cell phone evidence.

It will be interesting to see if judges around the state begin to adopt Judge Jones’ temporary restraining orders.

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head_BaerEliana 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.

On September 9, 2015, the Appellate Division determined in  a reported (precedential) decision, N.T.B. v. D.D.B. (A-4542-13T2), that a spouse’s destruction of a door within the couple’s jointly-owned marital home constitutes the predicate act of “criminal mischief,” pursuant to N.J.S.A. 2C:17-3, thereby supporting a finding of an act of domestic violence.

Background

The parties, husband, N.T.B., and wife, D.D.B., married in 2012 and had one (1) child, an eight (8) year old daughter. The parties resided together with their daughter in a home they purchased during their marriage and owned as tenants by the entirety (i.e. jointly owned as husband and wife).

In December 2013, N.T.B. filed for divorce, and as of March 2014, the parties were sleeping in separate bedrooms within the home. On March 30, 2014, D.D.B. was listening to music in her bedroom alone when N.T.B. told her to lower the volume. When D.D.B. refused to lower the volume, N.T.B. poured juice onto the speakers in an effort to silence them. When that did not work, he ripped the speakers out of the wall, brought them into the bathroom and threw them into the toilet.

The following evening, the parties engaged in an argument in the living room. D.D.B. and the parties’ daughter went inside D.D.B.’s bedroom and locked the door. Plaintiff attempted to open the door and when he realized that it was locked, he broke the door open “by slamming his body against it, splintering the door frame in the process.” After N.T.B. broke the door open, D.D.B. maintained that N.T.B. prevented her from leaving the bedroom, so she slapped him in the face in order to leave. N.T.B. maintained that he never prevented D.D.B. from leaving the room and that she punched him in the face without provocation.

The parties filed cross-complaints each seeking a Final Restraining Order (FRO) against the other. This wasn’t the first time the parties had been involved in a domestic disputes as prior to their marriage, N.T.B. previously obtained a Temporary Restraining Order (TRO) against D.D.B after she burned him with a curling iron.

D.D.B.’s complaint alleged that N.T.B.’s actions constituted both the predicate acts of criminal mischief (N.J.S.A. 2C:17-3) and harassment (N.J.S.A. 2C:33-4), thereby warranting an entry of an FRO against him. N.T.B.’s complaint alleged that D.D.B.’s action of striking him constituted the predicate act of simple assault (N.J.S.A. 2C:12-1).

The trial Judge determined that D.D.B. did not establish either predicate act and denied her request for an FRO. With regard to criminal mischief, the trial Judge concluded that D.D.B. failed to establish that N.T.B. damaged “the property of another” as required by the statute, because “the speakers and bedroom door [were] within the martial home that is shared by the parties, both appearing to be marital property,” The trial judge further held that D.D.B. failed to establish any of the elements constituting harassment.

Under N.J.S.A. 2C:17-3(a)(1), a person is guilty of criminal mischief if he “purposely or knowingly damages tangible property of another…” The trial Judge reasoned that since “the statute does not prohibit a person from causing damage to their own property”, D.D.B. failed to show that N.T.B. committed an act against the tangible property of another, thereby preluding a finding of criminal mischief.

D.D.B. appealed both the trial court’s decision that N.T.B.’s destruction of the speakers did not amount to criminal mischief and that N.T.B.’s conduct was insufficient to establish harassment (among other things); however, she did not challenge the trial Judge’s determination that the destruction of the bedroom door did not amount to criminal mischief and the Appellate Division chose to address this issue on its own accord.

With regard to N.T.B.’s destruction of D.D.B.’s bedroom door, the Appellate panel observed that the parties acquired the home during their marriage as tenants by the entirety.

A tenancy by the entirety allows spouses to jointly own property together as husband and wife, but neither they, nor their creditors, have the right to attach, encumber, convey or transfers their interest. A tenancy by the entirety includes a right of survivorship, so that upon the death of one spouse, the remaining spouse inherits the whole of the property. Therefore, under a tenancy by the entirety, each spouse owns an undivided interest in the whole of the property.

A tenancy by the entirety differs from ownership as tenants in common. Under a tenancy in common, all tenants have an individual, undivided ownership interest, which they may transfer, convey, encumber, etc.

The Appellate Court concluded that while “each tenant by the entirety is a tenant in common with the other during the joint lives of the spouses”, “each co-tenant has a separate and distinct freehold title and each holds his or her title and interest independently of the others.” In light of this, the Appellate Division determined that N.T.B. and D.D.B. each held a separate and distinct interest in their home and therefore, N.T.B.’s act of breaking down D.D.B’s bedroom door did in fact destroy the “property of another” (due to D.D.B.’s undivided interest in the home) and he therefore committed the predicate act of criminal mischief.

The Appellate Division opined that to conclude otherwise would “permit a spouse to purposely and maliciously totally destroy his or her jointly owned marital home, without sanction, leaving no recourse for the innocent spouse to secure an FRO on the basis of the home’s ruin.”

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The Appellate Division further disagreed with the trial court’s conclusion that N.T.B.’s act of pouring juice on D.D.B.’s speakers, ripping them out of the wall and throwing them in the toilet did not establish criminal mischief through damage to the “property of another”.

The Appellate panel noted that D.D.B. testified that the speakers belonged to her and were kept in her bedroom, while N.T.B. testified that the speakers were marital property since they were purchased during the marriage and were located inside of the home. However, the trial court did not engage in any analysis to determine whether the speakers were the “property of another” for the purpose of the criminal mischief statute.

The Appellate Division instructed the trial judge on remand to “make specific factual findings as to when, how and by whom, [the speakers] were purchased, for the purpose of determining whether [N.T.B.] enjoyed any tangible proprietary interest in them.”

To assist the trial judge on remand, the Appellate Division even went so far as stating that they “disagree with the proposition that, under New Jersey law, any personal property acquired during the marriage automatically becomes joint property.” To support this conclusion, the Appellate Court cited N.J.S.A. 46:3-17.2, “which recognizes the establishment of a tenancy by the entirety in personal, as well as real property.” This statute requires that “for acquired personalty to be considered joint property held by the entirety, the spouses must “take title to an interest [therein]…under a written instrument designating both of their names as husband and wife.” N.J.S.A. 46:3-17.2(a). “Absent evidence of such an instrument, the common-law prohibition against personal property being held by the entirety prevails.”

Parting Words

Does this decision intend to reach out from the realm of domestic violence law into the sphere of equitable distribution? Matrimonial attorneys routinely divide assets, real property, personalty, etc. based upon the presumption that same were acquired during the marriage, with marital funds, thereby making them “joint marital assets” regardless of title. It appears from the holding in N.T.B. v. D.D.B. that unless there is an instrument designating property as joint, all property acquired during a marriage, with marital funds, would purportedly belong to the possessory owner. Of course, as the trial judge was instructed on remand, specific findings must be made to determine whether another has a proprietary interest in the property. I can’t help but wonder how this decision may change the landscape of equitable distribution of marital assets.

In the domestic violence statute, there is a presumption that the abused should get custody.  In the custody statute, the prior history of domestic violence is simply one of the many factors that a court must consider.  There really has not been a reported case that addresses the confluence of these two statutes until July 28, 2014, when the Appellate Division decided R.K. v. F.K.

In that case, the mother obtained a Final Restraining Order (FRO) against the father in 2008 and was awarded custody subject to the father’s parenting time.  In 2010, a plenary hearing was held in the domestic violence action on the father’s application to change custody, which was ultimately denied.

In 2011, the father filed a complaint for divorce and hired a custody expert who opined: (1) “that Mother had “very significant psychological problems,” which jeopardized her “emotional stability as a parent,” were “likely to interfere with appropriate parental communication with” Father, were “likely to interfere with her parenting,” and could have “a very negative effect on her children.””; 2) “that “[t]he current situation does not appear to be in the best interests of the children as a long-term plan.””;  3) that it was “inadvisable for Mother to continue home-schooling the children and 4) also recommended that Father and Mother split residential parenting responsibilities evenly.

After a seven-day trial, the court denied relief because it found no substantial change of circumstance, and because it relied on the presumption of custody in N.J.S.A. 2C:25-29(b)(11) of the Prevention of Domestic Violence Act of 1991 (DV Act), N.J.S.A. 2C:25-17 to -33.

The Appellate Division vacated the decision, finding that the trial court “misapprehended the roles of both the change of circumstances requirement and the presumption.”

The Appellate Division noted that while the trial court applied a changed circumstances analyis, “…at a trial to determine custody, “the ultimate judgment is squarely dependent on what is in the child’s best interests.” Baures v. Lewis, 167 N.J. 91, 115 (2001).”  The Appellate Division noted that the two step process relative to change of circumstances (i.e. the threshhold showing of a changed circumstances to be entitled to discovery and a plenary hearing) does apply to custody cases.  That said, one a movant makes that preliminary showing, “…  the second-step hearing or trial is decided using “the same standard that applies at the time of [an] original judgment of divorce.””

The Appellate Division noted that based upon the expert’s report which established a change of circumstances, an evidentiary hearing was warranted; i.e. the trial court correctly went to step two of the process making the finding of a lack of showing of a change circumstance a contradictory finding.  Put succinctly, the Appellate Division held:

Thus, the court was required to determine custody at that trial based solely on the best interests of the children. However, in its decision the court mistakenly relied on the lack of a “substantial change in circumstances.” The change of circumstances standard serves to determine whether a trial should be held, not to determine the result of that trial. (Emphasis added)

The Appellate Division went on to hold that, “The trial court also erred by relying in this matrimonial proceeding on the presumption used in domestic violence cases.”  The court noted that it is proper and within the statute to award temporary custody at an FRO hearing.  The court noted the rationale for this:

This presumption plays an important role in the initial DV proceedings, which must be conducted expeditiously, and in which custody is only one of many issues. See N.J.S.A. 2C:25-29(b). Further, this presumption reflects the DV Act’s finding “that there exists ‘a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence.'”

In this case, the DV court awarded Mother temporary custody of the and the trial court assumed that the presumption still governed.  It did not because a different statutory scheme applies to custody determinations in divorce trials which are governed by N.J.S.A. 9:2-4, which addresses domestic violence as one of several factors requiring consideration.  The court further noted:

Allowing our family courts to weigh the seriousness of the history of domestic violence against the other N.J.S.A. 9:2-4 factors, rather than binding them with a mechanical presumption, better enables them to consider the best interests of the child in determining the vital issue of child custody in divorce, using their “special expertise in the field of domestic relations.” Cesare, supra, 154 N.J. at 412. In so doing, the court must consider “the safety of the child and the safety of either parent from physical abuse by the other parent.” N.J.S.A. 9:2-4.

The take away here is that if the court thought that there was no change of circumstances, then it shouldn’t have had a trial (though this too may have been reversed based upon the expert’s report – but I think it would be harder to show an abuse of discretion than an error in the law – which is what this reversal was based upon.)  Once it did, it had to apply the custody statute.  Since more than two years went by, the parties were allowed to  supplement the record to bring the court up to date.  That said, the father lost more than two years here that he can never get back – further showing the inefficiency of the system.

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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.