What a judge says before, during or after a hearing “off-the-record” likely sheds light on the Court’s decision making process including, but not limited to, what evidence was considered andContinue Reading Off-the-Record Comments & the Right to an Impartial Final Restraining Order Hearing
Final Restraining Orders (FROs)
A Victim of Domestic Violence Need Not Have Disclosed the Abuse to Another to Establish a Predicate Act of Domestic Violence
Victims of abuse have many reasons for not reporting prior acts of domestic violence – either to friends, family, co-workers, etc. or the police. Logically, the failure to report does…
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If You Want to Keep Your Final Restraining Order, Maintaining a Sexual Relationship with the Defendant Is a Bad Idea
More than 11 years ago, I wrote a post on this blog entitled The Abuse and Misuse of the Domestic Violence Statute. From the statistics, we can see that…
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New Jersey Appellate Division Examines the Meaning of “Dating Relationship” in Domestic Violence Cases.
I have written about the requirements of obtaining a domestic violence final restraining order (“FRO”) under the New Jersey Prevention Against Domestic Violence Act (“the Act”) previously on this blog. …
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LIVE-IN CHILDCARE PROVIDERS QUALIFY AS “HOUSEHOLD MEMBERS” UNDER THE PREVENTION OF DOMESTIC VIOLENCE ACT
Hot off the press! A published (precedent setting) trial court decision, E.S. v. C.D. confirms that live-in childcare providers qualify as household members under the Prevention of Domestic Violence Act…
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Another Due Process Ruling for Domestic Violence Defendants
A few months ago, I blogged about due process for defendants in domestic violence actions. We now have another unpublished decision on this topic but with a different due…
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New Appellate Division Decision Outlines Procedures for Reconstructing the Record in DV Cases
The Appellate Division recently issued a published (precedential) decision in the matter of G.M. v. C.V. providing some clarification on procedures that must be followed when a transcript is not…
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A Domestic Violence Final Restraining Order Cannot Be Entered In To By Consent
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,…
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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.
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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.…
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