This case is a recent analysis and application of the NJ domestic violence laws, current case law across the state, combined with the entire gamut of family court litigation, including child custody, visitation schedules, support, and divorce. Thus, it is a good case study which examines all manner of evidence, factual circumstances, and policy considerations in a case that comprises multiple family law elements, particularly how a case will proceed once domestic violence is alleged.
The facts of the instant case are as follows: The mother, or plaintiff, separated from the father (the defendant) after having two children with him. The divorce case was filed and there was an interim order concerning custody, parenting time and support entered in October, with the case to be continued sometime in December, 2016. Five days before the continuance was scheduled, the mother filed a domestic violence complaint against the father, saying he had slapped her in the face after an argument concerning their children. The continuance was further delayed in light of the domestic violence proceedings, and the parties each appeared for the final hearing in the complaint. The plaintiff asserted her facts, and the defendant denied them. Therefore, the court had to determine the credibility of each of the witnesses, rather than relying on the testimony of eyewitnesses or videos. The court must start with a blank slate in these ‘he said/she said’ situations in order to be the most objective finder of fact possible. However, the burden of proof is on the plaintiff to show that the defendant violated NJ domestic violence laws, although they must only show the court that there is a preponderance of evidence of such a violation, or that it is more likely than not that the defendant committed violence against the plaintiff.
Some things that a court will use in order to determine which witness is more credible, and therefore, whose testimony is more persuasive are things like their demeanor, body language, eye contact, or the consistency of their statements as they testify. Of course, it is common for different people to have different perceptions about what happened, and therefore not be intentionally misleading the court. The court in this case recognized that possibility, and acknowledged that the court must take this into account when analyzing the testimony presented.
Next, the court noted that when there are allegations of a defendant violating NJ domestic violence laws in a case, there are fact-intensive inquiries to determine whether a statute has been violated, such as that of harassment. Applying these concepts to the case at hand, the court determined that the plaintiff’s credibility was not impeached, nor was her testimony tinged with any embellishment. The court found the defendant’s testimony, on the other hand, less convincing, citing him as hesitant, and pointing out that he admitted he was angry at the time of the incident.
The next consideration for the court was to determine whether a domestic violence action is filed because the act of violence occurred or in order to benefit their own case and further their own agenda in the ancillary family court case. The court does an excellent analysis and comparison to the leading case in the matter concerning NJ domestic violence laws: Murray v. Murray. Essentially, the Murray case found that although the husband insulted the wife, it was not sufficient to reach the level of domestic violence, and recognized the potential for abuse of the Domestic Violence Act in New Jersey to get the upper hand in a divorce matter. Therefore, the court instructed trial courts that in cases when a domestic violence complaint is filed concurrent with another family court proceeding, the court has to acknowledge the possibility of the improper filing of such a complaint to secure a dominant position in any companion case. The Murray court was especially cautious of the possibility under the Act for defendants to be ordered to pay support, relinquish possession of the marital home, and other financial relief, which would be an enticing incentive for plaintiffs to seek in domestic violence cases. Crucially, there is a presumption in New Jersey that the best interests of a child in a custody case would be best suited under an award of custody to the parent who is not abusive. Therefore, as the Court in A.S. noted, in addition to the analysis of the witness’s demeanor and the facts and circumstances of the case, the court should also consider whether there is a connection between the domestic violence complaint and whether it was filed for any particular strategy or benefit in a contingent case, although under no circumstances should the court believe there is a presumption of such a motivation.
The court in this case also used the analysis in Silver v. Silver, which requires a two-pronged analysis. First, the trial court considered and determined that the defendant committed an act of domestic violence against the plaintiff. The NJ domestic violence laws specifically list assault and harassment as actions which constitute domestic violence – and even a slap would fall under this criterion. Next, the court has to determine if there is a danger to any person or property which would warrant a final restraining order in order to prevent additional abuse in the future. Because the parties were arguing over their children, in particular, the current child custody arrangements, and they are in continued litigation, the court determined that there was a possibility that violence could precipitate down the line as the case continued and the relationship remained adversarial. Thus, in light of all the considerations, the court determined that the plaintiff was entitled to the entry of a final protective order. If you have any questions about New Jersey domestic violence laws, call the Law offices of Peter Van Aulen for a free 30 minute in office consultation.