Final Restraining Orders (FROs)

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 2004.  Fast forward to 2016, when the Defendant sought to dissolve the restraining order.  According to the Defendant, the existence of the restraining order was making it very difficult for her to find employment and, she argued, it was no longer necessary for the protection of the Plaintiff.  She alleged that the parties, who had children together, had numerous interactions over the years since the entry of the restraining order without incident, had even toured colleges with the child together and entered into a business transaction together.  Simply put, the Defendant claimed that the Plaintiff no longer feared her or had a need for the protections of the restraining order.

Significantly, domestic violence restraining orders cannot easily be dissolved.  Parties cannot simply agree to dissolve them.  Even if both parties tell the Court that they are in agreement, a judge must still hold a hearing to determine if there is “good cause” to modify or dissolve a domestic violence restraining order.  This is because, due to the nature of domestic violence and the dynamic of fear created by the aggressor, “consent” from a victim of domestic violence may not be genuine.  Rather, it may be the result of fear and manipulation or control by the victimizer.

N.J.S.A. 2C:25-29(d) requires that modifications or dissolutions of a domestic violence restraining order can only be granted by a judge who is the same judge who entered the restraining order, or “has available a complete record of the hearing or hearings on which the order was based.”  The “complete record” includes the transcript of the final restraining order hearing, which allows the Court to be familiar with the full history of domestic violence and best evaluate the victim’s continued fear of the perpetrator.

Unfortunately, in G.M., the transcript was unavailable because the audio recording of the final restraining order hearing was blank.  To do nothing would deprive the defendant of her right to due process – the court cannot just sit by and refuse to hear the issue as a result of the unavailability of a transcript.  Therefore, the Appellate Division took this opportunity to establish procedures for addressing the issue of the absence of a transcript in these hearings:

  • When the transcript is available, but simply has not been provided by the moving party, this is a fatal omission and will result in the denial of the application to modify or dissolve the restraining order.
  • If the moving party has documentation from the judiciary showing that the final restraining order hearing cannot be transcribed in whole or in part, the court must determine if this problem was caused by the moving party.  The Court must also determine if the transcript is totally unavailable, or if it can be recovered.
    • If there is no audio recording to transcribe or it has been corrupted, and the moving party was not the cause of this malfunction, the court must then determine if the moving party can produce evidence to establish a prima facie case that a change of circumstances exists to modify or dissolve the restraining order in the absence of a transcript.  The Court must also determine if the judge who entered the restraining order entered a detailed statement of reasons, which would allow the Court to determine if the record is complete.
    • If the Court cannot assess whether to deny the application or whether, based on the record before it, it is satisfied that there is prima facie evidence of a change in circumstances that may warrant modification or dissolution of a restraining order, then the Court must reconstruct the record of the FRO hearing, with the goal of producing a record that “provides reasonable assurances of accuracy and completeness.”

Once the record is reconstructed or there is deemed sufficient information from the available record to determine whether a change of circumstances exists warranting modification or dissolution of the restraining order, the Court can move forward with a determination as to whether good cause exists to do so.

While this case dealt strictly with the issue of domestic violence restraining orders, one can imagine other scenarios in which these procedures can be adapted where transcripts of prior proceedings are unavailable, but necessary to educate a judge about testimony given during earlier but related proceedings.


headshot_diamond_jessicaJessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

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 matter was settled and the parties sought to have the appeal dismissed because the Court determined that “the interests of justice require a disposition of the appeal’s merits.”

44694685 - domestic violence abuse or aggression within marriage against partner wife or children

The substantively interesting part of the opinion was the holding that parties cannot consent to the entry of a domestic violence Final Restraining Order (“FRO”).  Rather, because of the far reaching implications of an FRO, a trial court must make the requisite finding that an act of domestic violence has occurred.

In this case, after the entry of a Temporary Restraining Order (“TRO”), at the date of the FRO hearing, the parties reached an agreement which called for defendant’s consent to an FRO in exchange for plaintiff’s consent to defendant’s exclusive possession of the marital home pending further order in the matrimonial proceedings.  Rather than question the plaintiff about the act of domestic violence or the defendant to see if there was agreement that the act had occurred, but rather only asked the usual questions regarding the voluntariness of the agreement.  Satisfied that the agreement was voluntary, an FRO was entered.  The defendant then filed a timely appeal asserting that the FRO was void ab initio (i.e. from the outset) because the judge mistakenly issued the FRO without taking testimony about the allegations, without finding an act of domestic violence occurred, and without determining plaintiff required protection from defendant.

Apparently, while the appeal was pending, the same or similar agreement to continue the FRO was reached again and the parties tried to dismiss the appeal but the Appellate Division would not allow it finding:

… In light of the strong public policies underlying the Act, we choose to exercise our discretion to consider the appeal on its merits. We have an obligation to ensure the FRO was legitimately entered and should not permit its wrongful perpetuation simply because it may have become a useful chip in the settlement of the parties’ matrimonial disputes.

Having rejected the parties’ request that we dismiss the appeal and having resolved to consider the merits of this appeal, we agree with what defendant previously argued: the FRO can no longer stand. A domestic violence final restraining order may not be entered by consent or without a factual foundation. See Franklin v. Sloskey, 385 N.J. Super. 534, 540-41 (App. Div. 2006).  Because the trial judge mistakenly failed to elicit a factual foundation, failed to find domestic violence occurred, and failed to determine whether plaintiff required protection as a result of defendant’s conduct, we vacate the FRO.

The matter was then remanded for an FRO hearing.

Interestingly, in a footnote, the Appellate Division provided a road map, as it were, for parties that want to consent to an FRO, when it stated:

We do not mean to suggest every domestic violence action must be tried to a conclusion or that a defendant may not accede to relief sought by a plaintiff. Nothing prevents a defendant from declining to defend against such an action or from acknowledging under oath the commission of an act of domestic violence. The consequences, however, are too serious to permit entry of an FRO merely by consent. Before entering an FRO, a court must ensure there exists an adequate factual foundation and that the defendant understands the consequences of the decision not to contest the matter. A court must also find that the FRO is necessary “to protect the plaintiff from an immediate danger or to prevent further abuse.” Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006). (Emphasis added).

The take away from this case is that FROs are serious matters and that care must be taken if they are going to be used as bargaining chips to settle issues on either an interim or final basis.

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Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

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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

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.”

Continue Reading Domestic Violence: Bad Haircuts and an Unwanted Hug Can Constitute Harassment

Lately, it seems as if everywhere I turn I am representing a party in a domestic violence matter, whether in relation to or separate from an ongoing divorce matter.  With these recent experiences fresh in my mind, I thought I would take the time to blog about the lawyer’s role in representing a defendant in such matters.  While it is easy to sympathize with the victim, oftentimes it is the defendant who is falsely accused or caught up in a situation where the victim is trying to get a "leg up" over the other party in the context of a divorce. On of our prior post entited the The Abuse and Misuse of the Domestic Violence Statute, published almost 2 years ago, is perhaps our most commented on post.

Whether the person is the victim or defendant, each passing moment is critical in the compressed time between the filing of the domestic violence complaint and the final hearing to determine whether a temporary restraining order should be converted to a final (permanent) restraining order.  I paraphrase one recent client’s opinion as to his wife obtaining a TRO against him – with one call by her to the police, his entire life began crumbling before his eyes as his family and career had been put at risk.  

Continue Reading One Approach to Legal Representation of a Defendant in a Domestic Violence Matter

Previously, I have blogged on the issue of domestic violence and the NJ Prevention Of Domestic Violence Act.  Our courts have carefully scrutinized this Act and its consequences, even determining whether and under what circumstances the issuance of a final restraining order can violate one’s right to due process.  Unfortunately, the issue of domestic violence arises all too often in family courts.

The recently published Appellate Court decision of C.M.F. v. R.G.F. arose from an appeal after the trial court issued a final restraining order against an ex-husband.  The act of domestic violence in question was found to be an act of harassment committed against the ex-wife while at their child’s sporting event.  The main allegation was that the ex-husband screamed and yelled obscenities and other unpleasantries aimed towards his ex-wife.

These parties had gone through a long and tumultuous divorce.  Ironically, in 2007 they agreed to parenting time arrangement for their children.  They’d each reside in the marital home on a 50/50 basis, with one party living in the home for 3 1/2 days/week with the children and leaving 1 hour before the other party arrived and then alternating.  This system seemed to work and avoided the parties having to see each other for quite some period of time.

In January 2009, after filing motions seeking to each have sole possession of the home with the children, an order was entered granting wife possession.  The husband was to continue with the same amount of parenting time but to take place out of the marital home.  On the day the order was received, wife text messaged husband to let him know what was ordered and to advise that she’d be taking their children to their basketball game and he could pick them up there.  She would also leave the children’s overnight bag on the porch for husband’s retrieval.  At some time later that evening, husband appeared at the home and a verbal altercation began between the parties.  Wife called the police who seemingly diffused the situation at that time.

Continue Reading Domestic Violence Post-Divorce

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, rendered without a plenary hearing and where there were disputed facts, granting the defendant joint legal custody. 

In this case, the parties were never married. While the plaintiff was pregnant with the parties’ child, she obtained a domestic violence final restraining order against the defendant.  Four years had passed and the parties were now in court dealing with emergent custody and parenting time issues.  The defendant’s attorney requested that joint legal custody be ordered and plaintiff’s attorney objected, contradicting defendant’s account of his support of the child and noting defendant’s history of drug use.  Plaintiff also noted the FRO, her fear of the defendant and that defendant presented no proof regarding his relationship with the child.  Notwithstanding, the Court issued an Order granting the parties joint legal custody and designating the plaintiff the parent of primary residence.

Plaintiff appealed and the Appellate Division reversed noting that a decision like this, where there was contradictory information presented, required a plenary (evidentiary) hearing.  The Appellate Division also noted that the parties’ relationship had been strained for year, as noted by the FRO, and that along with the FRO goes a presumption in favor of awarding custody to the non-abusive parent.  In addition, the Court noted that the plaintiff’s fear as well as the defendant’s drug use need to be considered at the hearing. 

This case reminds us of two things.  First, court’s cannot decide major issues without having plenary hearings if there are material facts in dispute.  Second, court’s must be mindful of findings of domestic violence when addressing the issue of custody, including legal custody, considering the statutory presumption of custody favoring the non-abusive parent.  Fundamental to the notion of joint legal custody is the parties’ ability to communicate and cooperate which is why a review of the history of domestic violence is so important.

The Prevention of Domestic Violence Act, NJSA 2C:25-17 to 35, is the law that governs domestic violence issues in New Jersey, including the issuance of Temporary Restraining Orders (“TROs”) and Final Restraining Orders (“FROs”). The Prevention of Domestic Violence Act was enacted to protect victims of domestic violence. Unfortunately, some individuals abuse the protections offered by the Domestic Violence Act and use it as a weapon in divorce proceedings. While many times the issuance of an FRO is appropriate, there are other times when it is clear that the Prevention of Domestic Violence Act has been abused.

If a person is a victim of domestic violence, they can obtain a TRO by contacting the local police (at anytime) or going to the county courthouse (during business hours) and explaining the circumstances by which they have been abused. At that time a judge will determine if the facts warrant the issuance of the TRO. If the judge decides that the conduct is sufficient to warrant the TRO, the accused alleged abuser will be served with the TRO, which will order the individual not to contact the victim or anyone else that needs protecting, which may include children, family members, friends, etc. Once the TRO is issued, an FRO hearing is scheduled shortly thereafter.   The FRO hearing is before a Superior Court Judge and will be conducted at the county courthouse. At the FRO hearing, a judge will determine if an FRO is necessary to protect the alleged victim of the domestic violence or if the TRO was incorrectly issued and no FRO is necessary. While the TRO is usually issued ex parte or without any input from the alleged abuser, at the FRO hearing the alleged abuser has the opportunity to testify, call witnesses, present evidence, and most importantly be represented by an attorney.

Continue Reading Due Process vs. Final Restraining Order

The recent act of domestic violence by singer Chris Brown on his very famous girlfriend, Rihanna, has brought new attention to the fact that domestic violence is not a socio-economic problem limited to the lower class.  Unfortunately, I often see the ugly side of relationships and not surprisingly domestic violence is an issue I also deal with.   New Jersey is attempting to help protect victims of domestic violence by protecting  the victims essentially from themselves.

A new law that is pending in the New Jersey Senate would require that if a victim of domestic violence desired to dissolve or modify a final restraining order, a court would be required to make a finding and a record.  Assembly, No. 746, State of New Jersey, 213 Legislature.  Anyone who has been following the Chris Brown/Rihanna saga will tell you that within days of the incident where Chris Brown physically assaulted Rihanna, they were back together as a couple. (They have since split.) Unfortunately this is often the case.  Sometimes, it takes victims of domestic violence years to escape the cycle of abuse.

Continue Reading New Jersey – Is New Domestic Violence Legislation on the Way?