Domestic Violence

“He pops up everywhere I go; I am going to take out a restraining order against him for harassing me;” “she is calling me non-stop; I’m going to take out a restraining order against her.”

I hear these phrases all too often, from clients, from friends, and even from people on the street. They want to take out restraining orders against friends turned enemies, casual encounters turned habitual stalkers, and lovers now scorned and bitter. Often people are dismayed, however, to hear that in New Jersey, you simply cannot take out a restraining order against just anyone. Specifically, the New Jersey Prevention of Domestic Violence Act, enacted by the Legislature in 1991, only allows the issuance of a restraining order where a person, regardless of gender, has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member. Also included is any person, who has been subjected to domestic violence by a person with whom the victim has a child, or with whom the victim anticipates having a child, if one of the parties is pregnant as well as a person with whom the victim has had a dating relationship.

With regard to the “dating relationship” requirement, and indeed, generally, the Act has been construed very broadly in accordance with the Legislature’s overarching goal – namely, to protect victims against further acts of domestic violence. For instance, in J.S. v. J.F., A-2552-08, the Appellate Division held that a paid escort is a “date” under the Act. The Court elaborated upon its decision as follows:

"Experience suggests that most claims of a dating relationship turn on what the particular parties would view as a ‘date,’" wrote the Judge. "Accordingly…courts should vigilantly guard against a slavish adherence to any formula that does not consider the parties’ own understanding of their relationship as colored by socio-economic and generational influences."

While the above definition may reasonably lead to the conclusion that the definition of a “dating relationship” under the Act is boundless, recently, the Appellate Division came out with a decision to the contrary. Specifically, in last month’s decision of C.K. v. A.P., A-20-2-9851, the Appellate Division found that a “casual” relationship was not sufficient so as to constitute a “dating relationship” under the Act which would warrant the issuance of a Final Restraining Order. In C.K., the parties had a casual relationship from approximately November or December 2006, to approximately April and July 2006. At trial, C.K. testified she would "hang out" with A.P. and chitchat. A.P. testified along the same lines – i.e., that the two never dated. He stated they only had a friendship that lasted four months. They had no sexual relationship and were not intimate. After almost two years passed from the end of their relationship, in 2008, A.P. made contact with C.K. (the Appellate Division did not state what the contact consisted of), which in turn caused C.K. to take out a Temporary Restraining Order against A.P.

Continue Reading Dating Relationship under the Prevention of Domestic Violence Act – A Little More than Friends, Not Enough?

On June 28, 2010, the Appellate Division released the unreported (non-precedential) opinion in the case of "O.R. v. H.S."  In this case, the Appellate Division reversed the trial court’s Order

Continue Reading Appellate Division Reverses Award, Without a Plenary Hearing, of Joint Legal Custody, to Someone Guilty of Domestic Violence

While in the past we have blogged on the topic of what acts constitute domestic violence, a blog about how trial judges approach and analyze whether or not a retaining order is necessary seems appropriate. Recently, in the unpublished decision of L.N. v. B.R.S., the Appellate Division noted that after the Court finds that an act of domestic violence occurred, the Court must take a “stop, look, and listen approach” in determining whether a domestic violence final restraining order should be entered. In this dual-element test, entry of a domestic violence restraining order is not automatic if the plaintiff proves an act of domestic violence occurred. Silver v. Silver, 387 N.J. Super. 112 (App.Div. 2006); Corrente v. Corrente, 281 N.J. Super. 248 (App.Div. 1995). The plaintiff must also prove that issuance of a restraining order is required to protect the plaintiff from future acts or threats of violence.

Assuming that a plaintiff has proven that an act of domestic violence has occurred, what analysis does the Judge take in determining whether or not a restraining order is necessary to protect the plaintiff from further domestic violence? The Courts must look to the Prevention of Domestic Violence Act which provides:


The Court shall consider but not be limited to the following facts:


(1)        The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;


(2) The existence of immediate danger to person or property;


(3) The financial circumstances of the plaintiff and defendant;


(4) The best interests of the victim and child;


(5) In determining custody and parenting time the protection of the victim’s safety; and


(6) The existence of a verifiable order of protection from another jurisdiction.


N.J.S.A. 2C:25-29 (a); See also Silver v. Silver, 387 N.J. Super. 112 (App.Div. 2006).



Continue Reading The "Stop, Look, and Listen" Approach for Issuance of a Domestic Violence Restraining Order

In the recent published decision of Crespo v. Crespo (A-28-09, decided February 18, 2010), the New Jersey Supreme Court upheld in a 7-0 decision the constitutionality of New Jersey’s laws against domestic violence. The Prevention of Domestic Violence Act, N.J.S.A. 2C25-17 to -35, is the law that governs domestic violence cases arising in NJ. The act is found in section 2C of the New Jersey Statutes Annotated, which is the criminal section. Notwithstanding that domestic violence is found in the criminal section of the State’s statutes, the rights and procedures afforded those individuals who are accused of domestic violence are not the same as those afforded individuals accused of other crimes.

In Crespo v. Crespo, Mr. Crespo appealed the issuance of a domestic violence final restraining order (“FRO”) against him, alleging the Prevention of Domestic Violence Act violated his constitutional rights, including: (1) not being afforded certain procedural rights at trial – including no jury, a trial be held within 10 days, and limited discovery; (2) the preponderance of evidence standard was not the correct standard – it should require clear and convincing evidence; and (3) once a final restraining order was entered – seizure of his firearms violated his Second Amendment right to bear arms.

Continue Reading NJ’s Prevention of Domestic Violence Act Is Constitutional

When there is an act of domestic violence there is usually (and hopefully) a police report detailing the alleged incident. But what happens when the police officer is the perpetrator of the domestic violence? Well, New Jersey has just issued a new model police department policy for handling domestic violence incidents that involve law enforcement officers. The new policy would apply to all municipal police departments, as well as state and county law enforcement agencies.

According to long-standing New Jersey Attorney General Directives, if a law enforcement officer is found to have committed an act of domestic violence, that officer will have their weapons seized. (Directives 2000-3 and 2000-4). The new model policy is designed to ensure that police departments have in place clear guidelines when investigating domestic violence complaints involving their own officers. The new policy attempts to ensure a thorough fact-finding process that is fair to both domestic violence victims and the accused officers by incorporating the involvement of police chiefs and county prosecutors. The new policy also attempts to prevent any perceived intimidation or bias during investigations.

Continue Reading Domestic Violence and New Law Enforcement Procedures

Under the New Jersey Prevention of Domestic Violence Act, a “victim” of domestic violence is entitled to entry of a Final Restraining Order. N.J.S.A. 2C:25-29. The Act defines “victim of domestic violence” as including “any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship”. However, what is the definition of “dating relationship” and does a “dating relationship” exist if the relationship is formed by the exchange of monetary benefits? 

In the recently published decision of J.S. v. J.F. (App.Div. December 10, 2009), while the Appellate Division found that a “dating relationship” existed based upon the factual circumstances of the case, the Appellate Division did discuss the definition of a “dating relationship” and the impact on a Domestic Violence Complaint, or lack thereof, of a monetary benefit received as a result of a relationship.


Defendant in the J.S. matter argued that the Plaintiff did not qualify as a victim of domestic violence because Defendant paid for Plaintiff’s company. Defendant asserted that his relationship with Plaintiff, who worked as a dancer at a local club, was “professional” and that he paid Plaintiff to be his escort. Plaintiff asserted that she had a boyfriend/girlfriend relationship with Defendant, that she had been to his home, met his parents, and spent time together including weekends.   During trial, Plaintiff presented text messages from Defendant threatening her and her boyfriend and disparaging her.

Continue Reading A Paid Escort May be Qualified to Obtain a New Jersey Final Restraining Order Against the Payor