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 We now have another unpublished decision on this topic but with a different due process violation.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
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.
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.
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 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.
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.
Victims of domestic violence often believe that they will be able to obtain a Final Restraining Order against their abuser simply because they were able to obtain the initial Temporary Restraining Order. Obtaining an FRO, however, can be more difficult than one might think in light of the necessary proofs that must be made in court. …
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.
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.
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.