New Jersey Prevention of Domestic Violence Act

A typical question that I hear at most initial consultations (and I suspect most other divorce attorneys hear the same question) , is "how do I get my spouse out of the house?"  The typical answer is that unless there is a new act of domestic violence, you cannot usually have a spouse removed from the house while the case is pending.

While in a perfect world, attorneys are not telling their client’s to get restraining orders that are not legitimate, that seems naive.  Similarly, I am sure that badly motivated litigants, when hearing that a restraining order is necessary to get rid of their spouse, will do whatever it takes to get that restraining order, including provoking altercations and/or fabricating an incident.  I have, unfortunately seen or heard of this many times.  In fact, I often advise people to have a recorder with them at all times to protect themselves from a set-up.  In a recent case, the wife told the husband that she would no anything she could to get him out of the house.  I have unfortunately heard this a lot.  Aside from the obvious reason to get rid of a spouse, the other reason is that with the entry of a final restraining order comes a rebuttable presumption that the victim should get custody of the children.  Also, there is the practical advantage of gaining possession of the home and temporary custody of the children by virtue of a restraining order. 

Don’t get me wrong.  Domestic violence, real domestic violence is a blight on our society and is in no way acceptable.  That is not what I am talking about.  I am talking about, at best, what the Appellate Division has called "domestic contretemps" (i.e. your garden variety argument) and at worst the set-up noted above. Continue Reading The Abuse and Misuse of the Domestic Violence Statute

One of the main questions often arising in a potential domestic violence scenario is whether the victim is protected by the New Jersey Prevention of Domestic Violence Act.  Courts have broadly interpreted the Act’s terms to protect victims within the Act’s legislative purpose. 

For instance, a "victim of domestic violence" under the Act must be a person 18 years of age or older who has been subjected to domestic violence by a spouse, former spouse or any other person who is a "present or former household member."  What does "former household member" actually mean?  Courts have concluded that while more than a casual dating relationship is required, the parties need not actually reside together. Continue Reading WHO CAN BE A VICTIM UNDER THE PREVENTION OF DOMESTIC VIOLENCE ACT

When can one’s well intentioned conduct cross the line into a form of domestic violence under New Jersey’s Prevention of Domestic Violence Act?  That was the question addressed by the Appellate Division in P. O’D v. J. O’D, where it affirmed the trial court’s entry of a final restraining order against the defendant mother under the PDVA based on the trial court’s finding that the wife harassed her ex-husband.  Two children were born of the marriage, and the parties’ Property Settlement Agreement (PSA) provided that the parties would equally share residential custody (2 or 3 weekdays and alternating weekends). 

The husband testified during a final hearing on a prior temporary restraining order that, starting in September 2007 for a 3-month period, the wife started calling him late at night and using profanity during their conversations. According to his testimony, there were a series of phone calls where the wife would keep calling until he would answer the phone. He further alleged, and the wife did not deny, that she started abusing alcohol at this time. On one night within the 3-month period, the wife threatened the husband’s well-being during her phone calls. A couple of days later, the husband was notified by the wife’s boyfriend that the children were in danger and that the husband should take them from her mother’s custody, which he did successfully. 

 Continue Reading APPELLATE DIVISION FINDS WIFE'S WELL INTENTIONED MOTIVATION TURNED INTO ONE WITH A "PURPOSE TO HARASS"

When does electronic surveillance of another person constitute a violation of the New Jersey Prevention of Domestic Violence Act?  That was the question recently tackled by the Appellate Division in its unpublished decision, Kebea v. David.  The unmarried couple at issue was living together when, one evening, they got into a heated argument and Kebea told David to leave the apartment.  Kebea obtained a Temporary Restraining Order after David returned to the apartment and removed a few items he had purchased.  She ultimately voluntarily dismissed the TRO against David, who then purchased a software program by which he could learn about the contents of her emails to determine if she would lie to him about an ex-boyfriend so that he could end the relationship if he felt necessary.
Continue Reading Electronic Surveillance – An Act of Domestic Violence?

What seems to be a hot topic and one ripe for review for the Appellate Division is domestic violence and the entry of final restraining orders. I have posted several other blogs on this topic and yet again, the Appellate Division has issued an unpublished decision in the matter of F.R. v. E.B., decided April 6, 2009, A-4859-07T3.

A.R. and E. B. were married and lived in Philadelphia. According to A.R. she was a victim of domestic violence perpetrated by E.B. on numerous occasions. After one specific incident, A.R. came to NJ with the parties’ child to stay with her mother. She received a TRO (Temporary Restraining Order) after she claimed E.B. called and harassed her while at her mother’s threatening to take the parties’ child from her and then showed up outside A.R.’s mother’s home and screamed for her and the child.

E.B. received notice of the final restraining order hearing three days before the scheduled hearing date. A.R. appeared with counsel. E.B. also appeared but argued that he had insufficient time to retain counsel for the hearing. Also, the first time that E.B. heard the allegations contained in the FRO was when the judge read them onto the record at the final hearing.Continue Reading Due Process and Final Restraining Orders

The Appellate Division recently presented in an unreported decision an educational primer on the criminal act of “harassment” under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the “Act”), in Curry v. Curry, found here. In ultimately dissolving a Final Restraining Order entered by the trial court, the Appellate Division found that the evidence only established the existence of “domestic contretemps” during the course of a troubled marriage, insufficient to prove that harassment occurred under the Act. In so doing, the Appellate Division thoroughly reviewed the legislative purpose of the Act, how to establish harassment, and how the Act is not designed to protect against the common emotional difficulties that arise between parties during the course of a dissolving marriage. 

The factual scenario was relatively common – an argument occurred between a married couple when the husband believed that he had found direct evidence of the wife’s infidelity. The wife obtained a Temporary Restraining Order against the husband and, after a hearing, the trial court entered a Final Restraining Order against him, finding that he committed harassment under the Act. 

 Continue Reading Appellate Division Provides Primer on Harassment Under the Prevention of Domestic Violence Act