New Jersey Divorce Lawyer Blog
Restraining orders are legal orders that protect a person or multiple people from another person. Restraining orders are issued where the defendant has committed an act of domestic violence, and orders him or her not to contact the victim or else be subject to arrest. Different states have different procedures in place for securing a restraining order. Obtaining a NJ restraining order has two main steps. In the first step the plaintiff (the person who wishes to obtain the restraining order) files a complaint with the court, and the court either grants or denies a Temporary Restraining Order (TRO). In the first step, the court only considers the plaintiff’s side of events without yet hearing from the defendant, which is why it is only temporary. If the court orders the TRO in the first step, the second step is a hearing with both parties, usually within 10 days after the TRO was ordered. During this hearing, the court will consider whether to make the restraining order permanent, called a Final Restraining Order (FRO).
Silver v. Silver – Two-Step Test for NJ Restraining Orders
Silver v. Silver is a seminal New Jersey case that articulates the two-step test that a court applies in determining whether to order a FRO. First, the defendant must have committed an offense (called a predicate act) that is prohibited by the New Jersey Prevention of Domestic Violence Act. Second, the court must find that a FRO is necessary to protect the Plaintiff from future harm or threats of violence.
A.M.C. v. P.B. – The Facts
It is the second step of determining whether to make the NJ restraining order a permanent one, and the second step of the Silver test that is at issue in the October 21, 2016 New Jersey case of A.M.C. v. P.B. In A.M.C., a wife sought and received a TRO against her husband, a NJ police officer. At the FRO hearing the wife and her estranged husband were present, and the wife alleged that her husband had assaulted her on at least two separate occasions during a three-week period that culminated in her fleeing their home to seek refuge at a women’s shelter and that he verbally threatened to harm her in the future. The husband denied the allegations.
Applying Silver, Step One
At the hearing, in addition to her testimony the wife presented photographic evidence of her bruises. The judge found the photos to be credible and based on that evidence he found that the husband had committed the act of assault on his wife, satisfying the first step of the Silver test.
A.M.C. v. P.B. – Finding of Assault But Denying FRO
The trial judge did not, however, find that a FRO was necessary to protect the wife from future harm or threats of violence, despite finding that the husband had assaulted his wife on multiple occasions. In denying the FRO, the trial judge stated that his rationale for concluding that a FRO was not necessary to protect the wife was based on: 1) the short (1 year) duration of the parties marriage, 2) the fact that the parties had no children and thus would not have to co-parent and sustain a parental relationship of some sort going forward, 3) that the defendant had not been served with the TRO until a few days before the FRO hearing and had not contacted his wife during this time anyway. The wife appealed the trial court’s denial of the FRO.
A.M.C. v. P.B. – Appeals Court Reverses
The appeals court reversed the trial court decision and ordered that a final NJ restraining order be issued. It found that the trial court misapplied the Silver test. The holding on appeal found that the trial court improperly considered the short length of the parties marriage and the couple’s lack of children as mitigating factors that the trial court considered in determining that the plaintiff did not require the future protection of the FRO. The appeals court found that the Prevention of Domestic Violence Act did not contain these mitigating factors.
A.M.C. v. P.B. – Inherently Violent Offenses and Protection from Future Harm
Further, the appeals court found that the trial court failed to consider the “inherently violent” nature of the offenses committed (the two assaults). Inherently violent here is arguably contrasted with another offense, like verbal harassment, as opposed to causing physical harm. The court held that when it finds that an inherently violent offense was committed, the decision of whether to issue a FRO is often “perfunctory and self-evident.” What this opinion means, in practice, is that when considering whether the plaintiff needs continuing protection from future harm, the court will heavily weigh the inherently violent nature of the offense. The court in this opinion is stating that in these violent cases, the FRO should generally be issued.
The New Jersey case of A.M.C. v. P.B. will make it more likely than not that victims of domestic violence will receive the protection of a more permanent NJ restraining order when they have been victims of inherently violent offenses like assault. If you need assistance with obtaining or defending against a NJ restraining order, please contact the Law Offices of Peter Van Aulen today for a free initial consultation to discuss your case.
Sources
Silver v. Silver, 387 N.J. Super. 112 (2006).
A.M.C. v. P.B.
New Jersey Prevention of Domestic Violence Act
