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
Continue Reading The Presumption of Custody in a Domestic Violence Case Is Not Determinative in a Custody Case
Domestic Violence Statutes: Misapplication and Overuse Abound?
In 2009, Eric Solotoff did a blog post on the Abuse and Misuse of the Domestic Violence Statute. Recently, I too have seen a rash of reversals in the
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IF YOU THINK A PARENTING COORDINATOR SOUNDS LIKE JUST THE SOLUTION TO ASSIST PARENTS WHO HAVE A FINAL RESTRAINING ORDER – THINK AGAIN
In the unpublished (non-precedential) recent case of N.G. v. N.B.G., the Appellate Court declined to enforce a provision in the parties’ Marital Settlement Agreement that permitted the parties to
Continue Reading IF YOU THINK A PARENTING COORDINATOR SOUNDS LIKE JUST THE SOLUTION TO ASSIST PARENTS WHO HAVE A FINAL RESTRAINING ORDER – THINK AGAIN
"RESOLVING" A DOMESTIC VIOLENCE MATTER – A CAREFUL BALANCING ACT
We have written before on the topics of the use and misuse of the Prevention of Domestic Violence Act, and representing a litigant in a domestic violence matter. Within the past few weeks, a few experiences have brought this topic back to the forefront, and I thought that now was a good time to address the issues, especially in the context of “resolving” such matters. As a family law attorneys, we frequently encounter domestic violence as a component of our practice. Whether it happens in the context of an ongoing divorce, entirely independent of a marital relationship, or something different altogether, each case is certainly different from the next, and each case resides on its own motivations, so to speak.
What I mean by that is, the Prevention of Domestic Violence Act is a vital piece of legislation designed to protect actual victims of domestic violence. Countless matters come across our desks involving legitimate, truthful victims in need of the law’s immediate protection from an abusive defendant. Some of the most difficult matters involve those where we represent real victims with tragic fears of harm, including those who are immersed in the cycle of violence looking for a way out. Considering the risk to such a victim if a final restraining order is not granted, the import of the litigation is vital.
On the other hand, many cases – typically in the context of an ongoing divorce matter – involve a litigation-minded spouse simply looking to get the proverbial “leg up” over the other spouse in that separate, but related matter. Since the law is liberal in its protection of victims, it is often quite easy to procure a temporary restraining order, where the alleged victim can seemingly state whatever allegation he or she deems appropriate so long as it results in procuring a TRO. There are several well known cases addressing the judiciary’s obligation to look out for those litigants who are trying to use the law to his or her advantage, as such an occurrence is unfortunately all too common.
Continue Reading "RESOLVING" A DOMESTIC VIOLENCE MATTER – A CAREFUL BALANCING ACT
THE 'RIGHT' TO AN ATTORNEY IS NOT CREATED EQUAL
We have all heard at one time or another, whether in a movie or television show, a police officer inform a person of their right to have a lawyer appointed
Continue Reading THE 'RIGHT' TO AN ATTORNEY IS NOT CREATED EQUAL
Read Aaron Weem's Interesting Post Entitled "Emotional Abuse Just As Harmful as Physical Abuse"
Aaron Weems is an attorney in our Blue Bell (Montgomery County), Pennsylvania office and editor of the firm’s Pennsylvania Family Law Blog wrote an excellent post entitled "Emotional Abuse Just as
Read Melissa Brown's Informative Article Entitled "Be Careful When Using Technology to Gather Evidence"
Melissa Brown, an attorney in Charleston, South Carolina, is a fellow of the American Academy of Matrimonial Lawyers and one of the preeminent family lawyers in South Carolina. I had the occasion, last week, to read her excellent article on her blog entitled "Be Careful When Using Technology to Gather Evidence." Melissa has graciously allowed us to re-post her post. Her article is as follows:
The world of technology changes at break neck speed. Just in the past year, Apple released its third generationiPad and seven months later it is introducing the fourth generation iPad, new iPad Mini and the iPhone 5. Even Apple fans hardly have time to familiarize themselves with a new toy before another is introduced. The new technology is available even before contracts run on the previous models.
Most people today are not as concerned about keeping up with the Jones’s as they are with keeping up with the Steve Jobs’s. The problem in the legal field is that while lawyers struggle to keep up with latest and greatest technological advances, the laws addressing the use, misuse and abuse of such technology are also ever-evolving. However, the laws are not evolving at nearly the pace of technology growth. The result is that obtaining evidence through the use of technology can become dangerous both to clients and attorneys.
No one can be completely sure how old laws will apply to new technology particularly technology that few could fathom or contemplate when the laws were enacted. Lawyers and judges struggle to apply general principals of law to situations never imagined. While there are some hard and fast rules, much of this area of law remains murky and uncertain. Clients may believe their "smoking gun" e-mail will win their case, but, if a court later decides that the client obtained the e-mail illegally, the court will exclude that evidence entirely. Even worse, the client and the attorney offering the illegally obtained evidence might face civil and criminal liability for even attempting to admit such material.
In a much-publicized Ohio case, an ex-wife, Catherine Zang is currently suing her ex-husband, Joseph Zang, and his attorney, Mary Jill Donovan, for wiretapping and invasion of privacy. Catherine Zang claims her ex-husband installed monitoring devices in their home and spied on her with a hidden video camera and microphone. She alleges that he installed these secret cameras to gain leverage during their divorce proceedings. Under the federal wiretapping laws, a person may not intercept wire, oral, or electronic communications, and, under many state’s laws,unless one of the parties in the conversation is aware of the recording, the recording is illegal. This means that in so called "one party" states like South Carolina, a husband is allowed to tape his wife’s conversation only if he is also a party to the ‘conversation. Joseph Zang under Ohio law was probably not allowed to record his wife;s conversations that were not with him, as he allegedly did. He and his lawyer are facing civil penalties up to $10,000 per taping, plus punitive damages and attorney fees. They could also be charged criminally and be fined up $250,000 and serve up to five years in jail.
The reality is that using technology to gather evidence for potential use in during litigation is likely dangerous for both clients and their attorneys. Most technologically savvy attorneys implement electronic evidence policies that require their clients to disclose how they obtained electronic evidence before ever discussing the substance of the evidence. Such policies are designed to protect both the client and the attorney from exposure to criminal and civil liabilities.
Perpetrator of Domestic Violence Cannot have the victim removed and get temporary custody of the kids, can he?
If I were to tell you that the victim of domestic violence was put out of the marital home and the abuser was granted temporary custody of the kids, you would say I was crazy. The Appellate Division would agree and in reported (precedential) decision released on October 19, 2012 in the case of J.D. v. M.A.D.(ironically), reversed such a holding by a Camden County trial court.
In this case, the defendant’s discovery of the victim’s infidelity lead to an act of domestic violence. The victim, however, wanted to remain in and work on the marriage. The defendant wanted "space" and somehow convinced the victim to leave the home and sign a document giving him primary custody of the children. The parties later reconciled and the victim returned to the house. However, unable to control his anger over her affair, a number of additional acts of domestic violence occur ed, culminating with the entry of a TRO against the defendant. At the Final Restraining Order hearing, the judge then entertained argument "as to who should have possession of the marital home and as to who should have
temporary custody of the children." The trial judge decided that it should be the defendant, finding that the anger only occur ed when the parties were together and as such because the defendant had been the primary caretaker, he was awarded temporary custody and the victim was excluded from the marital home.
The victim appealed and the Appellate Division reversed, holding:
The trial court’s findings, set forth in the beginning of this opinion regarding the events over the course of the seven months following defendant’s discovery of his wife’s extramarital affair, are supported by substantial credible evidence in the record and we do not disturb them. The facts as found, however, do not overcome the presumption embodied in N.J.S.A. 2C:25-29b(11), governing the court’s award of temporary custody
in a proceeding under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, "that the best interests of the child are served by an award of custody to the non-abusive parent." Moreover, these facts cannot support an order granting exclusive possession of the marital home to the party the court has found to have perpetrated the abuse.
Enforceability of Domestic Violence Restraints That Prohibit a Defendant from Attending Any Location Where Plaintiff May Also Be Present
As family law practitioners who frequently represent parties in domestic violence actions, we are often confronted with clients who, having been the victim of domestic violence, seek to prohibit their spouse’s presence at any location where they will also be present. Until just recently, the law remained silent as to whether a restraining order could provide such broad prohibitions. On January 17, 2012, the legal silence ended by way of the matter of State v. S.K., Docket No. A-1488-10T1, which has been approved for publication and is, therefore, binding law upon the trial courts of our state. As established in S.K., a provision in a domestic violence restraining order that prohibits a defendant from “any other place where plaintiff is located” is not generally not enforceable as The Prevention of Domestic Violence Act does not authorize such non-specific restraints. N.J.S.A. 2C:25-17 to -35.
In addition to the more ‘common’ relief of barring defendant from plaintiff’s place of residence and employment, the final restraining order in S.K. went one large step further by prohibiting defendant from “any other place where plaintiff is located”. Over five years after the restraining order was entered, defendant attended the soccer game of the parties’ children at a local high school that plaintiff also attended. While plaintiff sat in the bleachers, defendant stood near the bleachers, watching the game. Upon seeing defendant, plaintiff telephoned the police and advised them that defendant was in violation of the final restraining order. At no time did plaintiff accuse defendant of communicating or contacting her in any way. No action was taken by the police at that time.
The day following the soccer event, plaintiff filed a “citizen’s complaint” against defendant for violation of the restraining order. In response, the police filed a formal complaint, charging defendant with “disorderly persons contempt” in violation of N.J.S.A. 2C:29-9b, as well as “petty disorderly persons harassment”, in violation of N.J.S.A. 2C:33-4a. Accordingly, defendant was arrested and processed and released from custody. Trial was held six months later, wherein the State offered defendant a plea agreement in exchange for serving no jail time. Defendant agreed to plead guilty to the contempt charge conditioned upon the State dismissing the harassment charge.
Finding in favor of plaintiff, the Appellate Court reversed plaintiff’s conviction and remanded to the trial court for dismissal of the complaint filed by the Sate and consideration of an appropriate amendment of the final restraining order to delete the invalid provision.
The Use of Modern Technology as a Form of Domestic Violence – The Appellate Division Weighs In
The times, they are a’changing – at least when it comes to how the judicial system approaches harassment as an act of domestic violence in light of advanced technology used for communication. In the newly reported (precedential) Appellate Division decision of L.M.F. v. J.A.F., Jr., the Court addressed the use of electronic communications, specifically text messages, as a form of harassment. Those claiming an act of harassment based on electronic communications might not like what the Appellate Division had to say, as detailed further below, but the decision provides a breadth of noteworthy language in shaping what is an extremely sound, rationale and common sense methodology to approach such cases in the future.
As a refresher, harassment is defined by New Jersey statute as follows:
[A] person commits a petty disorderly persons offense if, 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.
Addressing the struggles faced by courts in addressing harassment as an act of domestic violence, the Appellate Division noted
The facts presented here exemplify the complexity of human interactions and the strain they place on the Family Part judges as they struggle to distinguish between the cases that merit judicial intervention and those that do not.
Further addressing such difficulties in the context of modern technology and the facts at issue, the Court first provided an online definition of “texting” from www.netlingo.com as:
[t]he act of typing and sending a brief, electronic message (less than 160 characters) via a wireless network to another person so that they can view the short message on any number of mobile or handheld devices.