New Jersey Prevention Against Domestic Violence Act

The standard for entry of a Final Restraining Order (FRO) under the NJ Prevention of Domestic Violence has been long established by the Courts (and discussed many times on this blog); under the seminal case Silver v. Silver, in order to obtain an FRO, the plaintiff must have a qualifying relationship with the defendant, and also has the burden to establish that:

  1. The defendant committed one or more of the predicate acts of domestic violence identified in the Prevention of Domestic Violence Act; and
  2. There is a need for the protection of an FRO going forward.

In a recent published (precedential) decision, A.M.C. v. P.B., the Appellate Division addressed the second prong of that test and the misapplication of the facts to the law that led to the trial court denying the plaintiff’s request for a Final Restraining Order.  In this case, the plaintiff filed a temporary restraining order alleging that the defendant had committed the predicate acts of harassment, assault, and terroristic threats.  At trial, the Court made a factual finding that the predicate act of assault had occurred.  More specifically, the Court found that the act of assault that formed the predicate act of violence for the complaint had occurred and that the defendant had assaulted the plaintiff in an attempt to prevent her from fleeing the marital home.  Further, the trial Court found that a prior act of assault had occurred three weeks earlier.

Despite making those factual findings, the trial court denied the Final Restraining Order because it found that – in spite of two acts of assault that had occurred within a three week period – the plaintiff did not need the protection of an FRO to prevent the defendant from committing further acts of domestic violence against her.  The trial court made this finding based chiefly on 1) the fact that the defendant had not contacted the plaintiff in the 10 days between her having filed the TRO and the Final Restraining Order hearing; 2) the parties’ marriage and, indeed, relationship, was short-term; and 3) the parties did not have children together, which was seen by the court as a mitigating factor because, the judge reasoned, there was less of a likelihood of interaction between the parties since they would not have to go on to co-parent together.

The plaintiff appealed.  On appeal, the Appellate Division squarely addressed the question, “Despite finding that a defendant committed one of the predicate acts listed in N.J.S.A.2C:25-19a, when may a court properly refuse to issue restraints?”  Hearkening back to the seminal Silver case itself, the Appellate Division answered that question by holding that when the predicate acts involves a violent offense – such as assault – and the Court has found that it occurred, then “the decision to issue an FRO ‘is most often perfunctory and self-evident.'” (quoting Silver at p. 127).  The Appellate Division reversed; it found that, in determining that the plaintiff did not need the protection of an FRO going forward, the trial court had “no rational basis” for relying on the length of the marriage, the fact that the parties have no children, and the fact that the defendant had not contacted the plaintiff between when she fled the home and the day of the FRO hearing.  And this makes sense:  if it has been found that a given defendant has a propensity for physical violence against the plaintiff, this should be more persuasive than any of the facts that the trial court relied upon when it made its decision.  Just because a relationship is short-term and there are no children, or the defendant didn’t contact the plaintiff during the ten day period between issuance of a TRO and the FRO hearing, doesn’t lessen the likelihood that the defendant will target the plaintiff with physical violence again.

The takeaway?  The Appellate Division has held that, where the court finds that a predicate act of physical violence (for example, assault or sexual assault) has occurred, the fact that the act was violent in nature should be weighted heavily by the trial judge when assessing whether there is a need for the protection of the FRO going forward, and that an FRO should generally be issued in these instances.


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.

Recently, the New Jersey Supreme Court provided some important clarification with regard to the issue of firearm forfeiture in the wake of an arrest and firearm seizure pursuant to the New Jersey Prevention of Domestic Violence Act (NJPDVA), N.J.S.A. 2C:25-17 to 35.  In In the Matter of the Application of New Jersey for the Forfeiture of Personal Weapons and Firearms Identification Card Belonging to F.M., the Supreme Court squarely addressed the following important question:  Under what circumstances can a personal firearm and firearms purchaser identification card seized pursuant to the NJPDVA be forfeited pursuant to the firearms forfeiture statute N.J.S.A. 2C:58-3(c)(5)?

The Facts & Evidence

The firearm owner at the center of this case – “F.M.” – was involved in a Domestic Violence proceeding in March 2010, wherein he was named defendant.  As a result of the domestic violence incident, F.M.’s personal firearm and identification card were confiscated by the police.  In addition to the domestic violence proceedings, F.M. was charged with simple assault.  Notably, F.M. himself worked as a police officer and, therefore, had not only a personal weapon but also a service weapon.  At a hearing to determine whether a Final Restraining Order should be entered against F.M. for the protection of his wife, the Court decided against the entry of same and dismissed the case against F.M.

Although one might think that, upon dismissal of an FRO, any weapons seized in connection with the restraining order are automatically returned to the defendant, this is not always the case.  The State may move to forfeit a personal weapon and identification card under N.J.S.A. 2C:58-3(c)(5) even if the domestic violence case under which the weapons were initially seized is dismissed.  This is precisely what the State did in the instant case.  Reserving on the State’s motion, the trial court judge noted that the court would issue a decision on the final disposition of F.M.’s personal and service weapons after he completed a batterer-intervention program and attended individual counseling.  F.M. did so, and subsequently filed a motion seeking the return of his personal weapon, the weapon at issue in this matter.

The State opposed F.M.’s motion, arguing that the return of F.M.’s personal firearm and identification card would not be in the interest of the public health, safety, or welfare.  To make out its case, the State relied upon the testimony of F.M.’s wife, who testified as to F.M’s history of violence against her, as well as the arresting office who responded to the March 2010 incident and confiscated F.M.’s personal firearm and identification card.  Interestingly, the State also relied upon the testimony of two licensed psychologists who had previously performed Fitness for Duty (FFD) evaluations on F.M., and had interviewed F.M.’s wife in connection with same.  Although their evaluations were directly applicable to the issue of F.M.’s service weapons, their testimony was permitted to address the issue of forfeiture of his personal weapon as well.  One of the psychologists had concluded that F.M. was not fit for full duty and recommended that he be disarmed because he was a “danger [] to himself or others.”  The other psychologist concluded that, although he couldn’t be classified as having a personality disorder, F.M. exhibited elements of various personality disorders that negatively impacted his ability to effectively serve as a police officer; he concluded that F.M. suffered from “a nearly paranoid sense that everyone was out to get him, poor impulse control, poor anger control, and poor judgment.”  He also stated that he believed the public would be endangered if F.M. continued to serve as an armed police officer and that F.M was not fit for duty.

The Path to the N.J. Supreme Court

Largely because there were no findings of clinical mental illness or personality disorder – but rather only elements of same, or what the trial court judge called “subclinical personality styles and tendencies” – the trial judge ordered the return of the personal weapon and identification card.  Interestingly, the Court rejected the psychologists’ conclusions as to the credibility of F.M.’s wife, because the judge him or herself had had more “exposure” to the altercations between F.M. and his wife as the Family Part Judge handling their domestic violence proceedings. The Family Part judge also seems to have concluded that F.M.’s wife had played a part in instigating the dispute that led to the seizure of the weapon, and that there was no prior instance during which F.M. had actually used a gun to harm anyone.  The Appellate Division largely agreed with the Family Part judge’s analysis and findings, noting that deference is accorded to Family Part judges given their intimate involvement with the facts of family part cases.  The State then appealed to the Supreme Court, arguing that the Family Part judge had misapplied the law.

The N.J. Supreme Court Decision

The N.J. Supreme Court agreed with the State as to its contention that the Family Part judge had misapplied the law and, in according the Family Part deference, the Appellate Division had erred.  In making its decision, the Court looked to the applicable statute which describes who may obtain a personal firearm and identification card, N.J.S.A. 2C:58-3(c), which states:

No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth.

The statute goes on to list 10 “disqualifiers” for purchase of a personal weapon and issuance of a firearms purchaser identification card, including:

(1)  To any person who has been convicted of any crime, or a disorderly persons offense involving an act of domestic violence as defined in section 3 of P.L. 1991, c.261 (C.2C:25-19), whether or not armed with or possessing a weapon at the time of such offense; [. . .](5) To any person where the issuance would not be in the interest of the public health, safety, or welfare; [. . .].

Relying on prior decisions, the Court noted that, in order to forfeit a weapon under subpart five (5) of the statute, the State only had to prove by a preponderance of the evidence (a lower evidentiary standard equating to “more likely than not”) that an individual’s possession of a firearm would be against the public health, safety, or welfare.  The purpose of the low evidentiary standard is, perhaps obviously, “to prevent firearms from coming into the hands of persons likely to pose a danger to the public.”

Contrary to the holding in the lower courts, the Supreme Court found that the  testimony of F.M.’s wife, the responding officer, and the psychologists – despite their lack of finding a clinical mental illness or personality disorder – suggested that F.M.’s possession of a firearm would indeed more likely than not pose a danger to the public.

Takeaways for the Family Law Practitioner

Those of us who practice family law are well versed in the precedential law that says that the Appellate Division and Supreme Court accord great deference to Family Part Judges.  In this case, however, the Supreme Court reminded us that, although such deference is given to Family Part judges as to the facts of a case, a judge’s legal determinations are of course not immune to review by the higher courts.  A Family Part judge may have a greater “feel” for the case given its familiarity with the parties and issues, but – and perhaps this is stating the obvious – that doesn’t mean their application of the law to the facts must be given deference on appeal.  In this case, the Family Part overlooked the plain language of the statute and appropriate evidentiary standard, and instead made its own justifications for returning the personal weapon and identification card to the defendant.

For those involved in domestic violence matters, this case also serves as a reminder that weapons forfeiture under that statute is black-and-white when an FRO is entered.  If a final restraining order is entered, under subpart (1) of N.J.S.A. 2C:58-3(c), the defendant’s firearm and identification card will be forfeited, something that must be taken into consideration if you are representing a defendant who is a licensed firearm owner.

And yet, if the domestic violence case is dismissed, the issue becomes more gray.  Even if the domestic violence matter that led to the initial confiscation of a firearm and ID card is dismissed against a firearm-owning defendant, the case discussed here makes clear that weapons can still be forfeited if there is credible testimony showing by a preponderance of the evidence that the defendant may be a danger to the public.  Notably, the outcome here also shows that, even if a plaintiff’s testimony in his or her domestic violence matter is insufficient to sustain the entry of a restraining order under the NJPDVA, his or her testimony may be used to prove that the defendant’s firearm and identification card should be forfeited on other grounds.

Whether you represent the party pursuing a restraining order or defending against one, this is important knowledge to have when dealing with a firearm-owning client or adverse party in a domestic violence matter.


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.

In August 2015, the New Jersey Legislature formally amended the Prevention Against Domestic Violence Act (N.J.S.A. 2C:25-19(a)) to include the predicate act of criminal coercion as a fifteenth form of domestic violence (in addition to: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, and stalking, all of which are as defined under their respective criminal statutes).

By way of background, in order to obtain a restraining order under the NJ Prevention Against Domestic Violence Act, the plaintiff/victim must have a qualifying relationship with the defendant, must prove that one or more of the (now) 15 qualifying “predicate” acts of domestic violence was perpetrated against you, and  must also show that there is a continuing need for protection based on the facts of your case.  The addition of criminal coercion as a predicate act opens an additional avenue by which victims can seek to obtain protection under the Act.

Criminal coercion is defined as a threat made to unlawfully restrict freedom of action, with a purpose to coerce a course of conduct from a victim which defendant has no legal right to require, including threatening to:

  1. Inflict bodily injury on anyone or commit any other offense;
  2. Accuse anyone of an offense;
  3. Expose any secret which would tend to subject any person to hatred, contempt or ridicule or to impair credit or business repute;
  4. Take or withhold action as an official or cause an official to take or withhold action;
  5. Bring about or continue a strike, boycott or other collective action except that such a threat shall not be deemed coercive when the restriction compelled is demanded in the course of negotiation for the benefit of the group in whose interest the defendant acts;
  6. Testify or provide information or withhold testimony or information with respect to another person’s legal claim or defense;
  7. Perform any other act which would not in itself substantially benefit the defendant but which is calculated to harm another person with respect to his health, safety, business, calling, career, financial condition, reputation or personal relationships.

coercion graphic

A recent opinion penned by Judge Jones, J.L. v. A.C. specifically addressed the first category of criminal coercion.  In that case, Judge Jones found that the defendant had criminally coerced the plaintiff into meeting with him, at which time he brutally beat her, by threatening the safety of her child if she refused to meet with him as he demanded.  As Judge Jones notes in his opinion, the NJ Prevention Against Domestic Violence Act has been criticized for its failure to provide protection to children because the Act only extends protections to victims who are over the age of 18 (except in cases where the relationship between the victim and defendant is a dating relationship).  Thus, Courts have typically denied relief to plaintiffs who try to obtain restraining orders for acts of violence committed against their children, rather than against them personally.

The major takeaway from this decision?  As a parent, it seems that you can definitively obtain protection under this Act where the defendant coerces a course of conduct from you by threatening to inflict bodily injury or commit an offense against your child.  It would also seem that this could extend to threats against anyone else in the plaintiff/victim’s life, including a boyfriend or girlfriend, co-worker, friend, or other family member.  However, there are limits.  Although Judge Jones’s opinion emphasizes that the new predicate act of criminal coercion fills in the gap where there was no way to obtain a restraining order for threats of violence toward a child or third party, it is important to note that there must also be “purpose to coerce a course of conduct” from the plaintiff him/herself.  A threat to harm a child or third party is not enough; that threat must cause the victim to engage in a particular course of conduct.  In J.L. v. A.C., that course of conduct was the act of meeting with the defendant, which the victim would not have done but for the threat to her child.

Additionally, it is vital to remember that the restraining order is still going to be between the plaintiff and the defendant – NOT between the defendant and the third party against whom a threat has been levied.  With that said, the court has always been empowered to issue a final restraining order that includes a victim’s family members as additional protected persons.  As an important practice tip, if you are an attorney or a self-represented party seeking a restraining order based upon criminal coercion that includes a threat to inflict bodily injury or commit an offense against a third party, it is imperative that you seek to include the threatened third party as a protected party on any final restraining order issued by the Court.


 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.