Final Restraining Order

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.

Continue Reading Perpetrator of Domestic Violence Cannot have the victim removed and get temporary custody of the kids, can he?

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.

Continue Reading ENFORCEABILITY OF DOMESTIC VIOLENCE RESTRAINTS THAT PROHIBIT A DEFENDANT FROM ATTENDING ANY LOCATION WHERE PLAINTIFF MAY ALSO BE PRESENT

Victims of domestic violence often believe that they will be able to obtain a Final Restraining Order against their abuser simply because they were able to obtain the initial Temporary Restraining Order.  Obtaining an FRO, however, can be more difficult than one might think in light of the necessary proofs that must be made in court.  A victim must essentially prove his or her allegations by a "preponderance of the evidence" (more likely than not).

While New Jersey’s Rules of Evidence are supposed to strictly apply, the fact that these situations are oftentimes  "he said/she said" versions of events can necessitate some flexibility in order to get the full story on the record.  However, as the Appellate Division recently held in N.V. v. Hartman, there are limitations as to har far a Trial Court may go in relying upon certain forms of evidence. 

The case involved a same-sex domestic violence dispute where N.V. alleged that Hartman had harassed her within the terms of New Jersey’s Prevention of Domestic Violence Act.  In implementing a FRO against Hartman, the Trial Court relied in large part upon phone calls that Hartman made to N.V., finding that parts of the calls were threatening to N.V.’s safety based on the tone and language of the calls themselves. 

In reversing the Trial Court, the Appellate Division found that certain calls upon which the Trial Court relied were not made part of the Court record because a transcript of the calls was not entered as evidence, a verbatim record was not made of the calls played in Court, and the tape containing the calls was not marked into evidence as a Court exhibit and retained by the Court.  The Appellate Division, as a result, could not determine what recordings were acctually relied upon or played for the trial judge.  A new trial was Ordered as a result.

Relying on experienced counsel can help a litigant navigate through rules of evidence that can be tricky and technical.  Otherwise, key pieces of evidence upon which you want to rely at a FRO hearing may be inadmissible or improperly used in making your case. 

A typical question that I hear at most initial consultations (and I suspect most other divorce attorneys hear the same question) , is "how do I get my spouse out of the house?"  The typical answer is that unless there is a new act of domestic violence, you cannot usually have a spouse removed from the house while the case is pending.

While in a perfect world, attorneys are not telling their client’s to get restraining orders that are not legitimate, that seems naive.  Similarly, I am sure that badly motivated litigants, when hearing that a restraining order is necessary to get rid of their spouse, will do whatever it takes to get that restraining order, including provoking altercations and/or fabricating an incident.  I have, unfortunately seen or heard of this many times.  In fact, I often advise people to have a recorder with them at all times to protect themselves from a set-up.  In a recent case, the wife told the husband that she would no anything she could to get him out of the house.  I have unfortunately heard this a lot.  Aside from the obvious reason to get rid of a spouse, the other reason is that with the entry of a final restraining order comes a rebuttable presumption that the victim should get custody of the children.  Also, there is the practical advantage of gaining possession of the home and temporary custody of the children by virtue of a restraining order. 

Don’t get me wrong.  Domestic violence, real domestic violence is a blight on our society and is in no way acceptable.  That is not what I am talking about.  I am talking about, at best, what the Appellate Division has called "domestic contretemps" (i.e. your garden variety argument) and at worst the set-up noted above. 

Continue Reading THE ABUSE AND MISUSE OF THE DOMESTIC VIOLENCE STATUTE

In a recent unpublished decision from the Appellate Division, McAteer v. Guzenski, Docket No. A-1540-07T3, decided January 21, 2009, the Court held that N.J.S.A. 2C:25-29(b)(16) dictates that when an individual is found to have committed an act of domestic violence, a court may also issue an order prohibiting that individual from possessing any other weapon.

When domestic violence arises in a situation that is protected under the Prevention Against Domestic Violence Act, (i.e. marriage, dating relationship, living together, etc.) individuals will disclose what weapons he/she believes or knows the aggressor to have in their possession.  Thereafter, when the Temporary Restraining Orders (“TRO”)  is served, a person’s weapons are seized by the police department.  More often than not, when the Final Restraining Orders (“FRO”) is entered, a judge will include a provision prohibiting the aggressor from retaining possession of those weapons listed.   If the TRO is  turned into an FRO , thus making the restraints permanent, the sheriff’s department or local police authority will retain possession of these items.  At some point, they may even be auctioned for sale.

In this recent unpublished decision, the parties dated for approximately three weeks.  At the end of these three weeks, plaintiff advised defendant that she wanted to end the relationship.  Unsatisfied with her notification, defendant began engaging in acts which the trial court found to be harassment and which raised to the level that required the entry of an FRO.  These acts included telephoning the plaintiff’s grandmother and threatening to call DYFS on plaintiff (consequently DYFS appeared the next day, however it was never proven that defendant did in fact make the call), calling and text messaging plaintiff at inconvenient hours, calling plaintiff names, and posting a message about plaintiff on his MySpace web page.  After a trial in this matter, where both parties were represented by counsel and the court heard testimony not only of the parties but of their witnesses as well, it was determined that defendant did in fact commit an act of domestic violence and that his actions warranted the protections of an FRO.  Inclusive in the issuance of the FRO, the court advised defendant that he was prohibited from possessing firearms and other weapons and that because there was a finding of domestic violence, there was an automatic prohibition against owning any firearms or other weapons.  The weapons involved in this case included martial arts weapons, i.e. a large sword, throwing spikes and stars, a crossbow, staffs, a spear, many knives and nunchucks.

Defendant testified that he never threatened to hurt or harm the plaintiff and that he only used these weapons when practicing marital arts.  Nonetheless, the court ordered a prohibition against defendant carrying or owning these weapons as a result of the entry of the FRO.

Continue Reading Return of Weapons When a Final Restraining Order Is Entered

The administrative office of the courts recently announced that law enforcement officials will have access to information on final restraining orders (FRO’s) nationwide.  This access will provide an added layer of security for domestic violence victims who have left the state either temporarily or permanently.

How will this work? The courts are going to be working with the NJ State Police and the Criminal Justice Information Unit, in the division of law and public safety.  They will work together to transmit the FRO information into the National Crime Information Center (NCIC) database.

The National Crime Information database file exists to help police authorities and criminal agencies locate missing persons, apprehend fugitives, return stolen property and protect law enforcement personnel who may encounter these individuals.

Once all the FRO information from NJ is entered into the database, the information will be accessible to law enforcement agencies nationwide.  Through this project, domestic violence victims who travel or move to another state have the added assurance that the FRO issued in New Jersey will remain permanently in effect and enforceable nationwide.