New Jersey Prevention of Domestic Violence Act

While in the past we have blogged on the topic of what acts constitute domestic violence, a blog about how trial judges approach and analyze whether or not a retaining order is necessary seems appropriate. Recently, in the unpublished decision of L.N. v. B.R.S., the Appellate Division noted that after the Court finds that an act of domestic violence occurred, the Court must take a “stop, look, and listen approach” in determining whether a domestic violence final restraining order should be entered. In this dual-element test, entry of a domestic violence restraining order is not automatic if the plaintiff proves an act of domestic violence occurred. Silver v. Silver, 387 N.J. Super. 112 (App.Div. 2006); Corrente v. Corrente, 281 N.J. Super. 248 (App.Div. 1995). The plaintiff must also prove that issuance of a restraining order is required to protect the plaintiff from future acts or threats of violence.

Assuming that a plaintiff has proven that an act of domestic violence has occurred, what analysis does the Judge take in determining whether or not a restraining order is necessary to protect the plaintiff from further domestic violence? The Courts must look to the Prevention of Domestic Violence Act which provides:

 

The Court shall consider but not be limited to the following facts:

 

(1)        The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

 

(2) The existence of immediate danger to person or property;

 

(3) The financial circumstances of the plaintiff and defendant;

 

(4) The best interests of the victim and child;

 

(5) In determining custody and parenting time the protection of the victim’s safety; and

 

(6) The existence of a verifiable order of protection from another jurisdiction.

 

N.J.S.A. 2C:25-29 (a); See also Silver v. Silver, 387 N.J. Super. 112 (App.Div. 2006).

 

 Continue Reading The "Stop, Look, and Listen" Approach for Issuance of a Domestic Violence Restraining Order

In the recent published decision of Crespo v. Crespo (A-28-09, decided February 18, 2010), the New Jersey Supreme Court upheld in a 7-0 decision the constitutionality of New Jersey’s laws against domestic violence. The Prevention of Domestic Violence Act, N.J.S.A. 2C25-17 to -35, is the law that governs domestic violence cases arising in NJ. The act is found in section 2C of the New Jersey Statutes Annotated, which is the criminal section. Notwithstanding that domestic violence is found in the criminal section of the State’s statutes, the rights and procedures afforded those individuals who are accused of domestic violence are not the same as those afforded individuals accused of other crimes.

In Crespo v. Crespo, Mr. Crespo appealed the issuance of a domestic violence final restraining order (“FRO”) against him, alleging the Prevention of Domestic Violence Act violated his constitutional rights, including: (1) not being afforded certain procedural rights at trial – including no jury, a trial be held within 10 days, and limited discovery; (2) the preponderance of evidence standard was not the correct standard – it should require clear and convincing evidence; and (3) once a final restraining order was entered – seizure of his firearms violated his Second Amendment right to bear arms.Continue Reading NJ’s Prevention of Domestic Violence Act Is Constitutional

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

When there is an act of domestic violence there is usually (and hopefully) a police report detailing the alleged incident. But what happens when the police officer is the perpetrator of the domestic violence? Well, New Jersey has just issued a new model police department policy for handling domestic violence incidents that involve law enforcement officers. The new policy would apply to all municipal police departments, as well as state and county law enforcement agencies.

According to long-standing New Jersey Attorney General Directives, if a law enforcement officer is found to have committed an act of domestic violence, that officer will have their weapons seized. (Directives 2000-3 and 2000-4). The new model policy is designed to ensure that police departments have in place clear guidelines when investigating domestic violence complaints involving their own officers. The new policy attempts to ensure a thorough fact-finding process that is fair to both domestic violence victims and the accused officers by incorporating the involvement of police chiefs and county prosecutors. The new policy also attempts to prevent any perceived intimidation or bias during investigations.Continue Reading Domestic Violence and New Law Enforcement Procedures

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?