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 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.
In a recent unpublished decision from the Appellate Division, McAteer v. Guzenski, Docket No. A-1540-07T3, decided January 21, 2009, the Court held that N.J.S.A. 2C:25-29(b)(16) dictates that when an individual is found to have committed an act of domestic violence, a court may also issue an order prohibiting that individual from possessing any other weapon.
When domestic violence arises in a situation that is protected under the Prevention Against Domestic Violence Act, (i.e. marriage, dating relationship, living together, etc.) individuals will disclose what weapons he/she believes or knows the aggressor to have in their possession. Thereafter, when the Temporary Restraining Orders (“TRO”) is served, a person’s weapons are seized by the police department. More often than not, when the Final Restraining Orders (“FRO”) is entered, a judge will include a provision prohibiting the aggressor from retaining possession of those weapons listed. If the TRO is turned into an FRO , thus making the restraints permanent, the sheriff’s department or local police authority will retain possession of these items. At some point, they may even be auctioned for sale.
In this recent unpublished decision, the parties dated for approximately three weeks. At the end of these three weeks, plaintiff advised defendant that she wanted to end the relationship. Unsatisfied with her notification, defendant began engaging in acts which the trial court found to be harassment and which raised to the level that required the entry of an FRO. These acts included telephoning the plaintiff’s grandmother and threatening to call DYFS on plaintiff (consequently DYFS appeared the next day, however it was never proven that defendant did in fact make the call), calling and text messaging plaintiff at inconvenient hours, calling plaintiff names, and posting a message about plaintiff on his MySpace web page. After a trial in this matter, where both parties were represented by counsel and the court heard testimony not only of the parties but of their witnesses as well, it was determined that defendant did in fact commit an act of domestic violence and that his actions warranted the protections of an FRO. Inclusive in the issuance of the FRO, the court advised defendant that he was prohibited from possessing firearms and other weapons and that because there was a finding of domestic violence, there was an automatic prohibition against owning any firearms or other weapons. The weapons involved in this case included martial arts weapons, i.e. a large sword, throwing spikes and stars, a crossbow, staffs, a spear, many knives and nunchucks.
Defendant testified that he never threatened to hurt or harm the plaintiff and that he only used these weapons when practicing marital arts. Nonetheless, the court ordered a prohibition against defendant carrying or owning these weapons as a result of the entry of the FRO.