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 not negate the fact that the abuse happened. One would think that judges hearing domestic violence, more so than most people, would not that given
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 this is still one of the most read items we have published, because the problem remains 11 + years later. I concluded that post by…
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. One of the three main criteria the Court must look at when determining whether to grant a final restraining order in such cases is the…
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 (“PDVA”). What does this mean? A restraining order can be entered against an employee who has lived with their employer even though the parties do…
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 We now have another unpublished decision on this topic but with a different due process violation. In the matter of S.C. v. Z.B., the parties had cross-temporary restraining orders (“TRO”) against each other stemming from the same incident…
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 available to serve as a record of a prior hearing.
In G.M., a domestic violence restraining order had been entered between the parties in…
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…
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.
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.
This post was written by Melissa M. Ruvolo, a new Family Law associate, in our Roseland office, and soon to be an official contributior to this blog.
Our blog frequently features discussions regarding what constitutes domestic violence to warrant the issuance of a Final Restraining Order (FRO). Perhaps the most frequently alleged “predicate act of domestic violence” is harassment under N.J.S.A. 2C:33-4. What may constitute “harassment” was recently raised in the unpublished Appellate Division decision of A.B. v. L.S.M. decided on May 6, 2011.
The parties were unmarried but had been living together for almost four years. They had two daughters – a 3-year old and a 22-month old. During an argument, the defendant called the plaintiff a “b-tch” and the plaintiff admitted she may also have cursed and yelled at him. The defendant attempted to leave the home but while doing so, got a flat tire. When he tried to fix it with a car jack, the plaintiff twice tried to remove the jack from under the car and the defendant pushed her shoulders each time. She threw the daughter’s sippy cup at his face and broke his nose. Both parties applied for temporary restraining orders, which were dismissed. The defendant eventually moved out of the home and parenting time was ordered by the Court.
Two months later, the defendant went to the plaintiff’s home and knocked on her bathroom window, pleading to speak with her. The plaintiff refused. On the way home from plaintiff’s house, the defendant sent her an apologetic text message stating that he had no idea how much he had hurt her and would leave her alone.
Several days later, when the defendant went to the plaintiff’s home to pick up the children for parenting time, he asked to speak with her. He told her he “really missed her” and wanted to “hug and kiss her.” She responded that she didn’t want to talk to him or “have him touch her.” Later that evening, the defendant sent a text message to the plaintiff claiming the children forgot a teddy bear and blanket. She offered to bring them to his home and he agreed. When the plaintiff arrived at the defendant’s front door, he told her the children were already asleep, leading her to believe that the entire incident was a ploy to get her there. According to the plaintiff, the defendant grabbed her to prevent her from leaving and she told him not to touch her. The plaintiff’s friend, who was waiting in the car, witnessed the defendant give the plaintiff an unwanted “bear hug.”