Articles Posted in domestic violence

One unfortunate aspect of practicing family law means one will inevitably have to deal with issues of domestic violence. NJ domestic violence laws are an interesting intersection of family law and criminal law. The L.C. v M.A.J. case which recently came down from the Appellate court offers some perspective on the realities of the law in New Jersey. The case concerned the defendants’ communications to plaintiff. The complaint filed by the plaintiff alleged, among other things, that defendant had emailed plaintiff asking if she was staying home with the child who he understood was sick. Plaintiff did not respond to the email, so defendant called the child, who said he was home sick. Defendant then accused the plaintiff of making the child lie, while also claiming the plaintiff left the child at home alone, sick. Furthermore, defendant called her employer to find out if she was working because he did not hear from her. Plaintiff stated that defendant called her employer a total of three times, and a police officer came to her home to check on her. On top of this, the defendant used a fake name when inquiring about her whereabouts.

As a result of these actions, the plaintiff filed a domestic violence complaint against the defendant, and at a brief hearing, was granted a temporary restraining order from one judge. The complaint alleged a pattern and practice of domestic violence from the defendant, including physical abuse and controlling behavior, and currently, she alleged the defendant harassed her through communication to her and her employer. On the day of the final hearing, in front of a completely different judge, the attorney for the defendant presented a motion to dismiss, which were argued to be on the basis that there was no claim presented upon which relief could be granted. The appellate judges noted that the defendant’s motion did not say this at all, but rather said only the facts alleged by the plaintiff concerned only his parenting issues and did not constitute harassment. The appellate court reversed based on the current state of NJ domestic violence laws.

They first held that they have repeatedly condemned any consideration of in limine motions which seek to terminate an action. The rules of court do not allow filing dispositive motions at the last minute – in fact, these sort of motions should only be permitted to address preliminary or evidentiary issues. Defendant sought only dismissal rather than the resolution of any sort of preliminary or evidentiary issues. The judge should have rejected it out of hand. But instead, he not only considered it, but granted it. To make matters even more grave, this case was a domestic violence matter. The court held that NJ domestic violence laws even more vigorously prohibit the use of such motions to dismiss the action when the alleged victim’s safety is the primary consideration of the court. Rarely will a domestic violence action be able to be dismissed without a full hearing – and even in that case, due process must be upheld, with the victim getting an opportunity to file an opposition with a chance to be heard. In this case, the judge disregarded due process, by his willingness to hear the defendant’s motion.  Defendant could have requested a dismissal at the close of all evidence. Continue reading

There is no shortage of cases concerning NJ Restraining Orders, and the most recent appellate case on this topic just came down on June 5. In T.M.S. v. W.C.P., the issue was whether the court abused its discretion by reinstating a final restraining order against the plaintiff, T.M.S, sua sponte, or on its own. The appellate court held that the lower court did in fact abuse its discretion and denied the defendant due process under the law. It reversed the court’s ruling. The (somewhat confusing) procedural facts are as follows:

A temporary restraining order (TRO) had been put in place due to domestic violence which TMS had admitted to. A final restraining order (FRO) was implemented, which TMS moved to vacate. He was denied. He filed again to dismiss the FRO, and WCP did not appear for the hearing, despite being properly served with notice. As a result, the court granted the unopposed application to vacate the FRO. With this victory, defendant then moved for relief from having to forfeit his weapons. At this hearing, there was a question of whether plaintiff was actually properly notified of the original dismissal of the FRO, and so, the court reinstated the FRO (and so, the weapons forfeiture matter was dismissed).

In determining whether a final NJ restraining order can be dismissed, the court relies on eleven factors from the Carfagno case if there is good cause for dismissal. The factors are: (1) whether the victim consented to lift the restraining order; (2) whether the victim fears the defendant; (3) the nature of the relationship between the parties today; (4) the number of times that the defendant has been convicted of contempt for violating the order; (5) whether the defendant has a continuing NJ restraining order because she wasn’t there – but the trial court did note that the defendant had never violated the order, defendant’s consistent sobriety, attended domestic violence counseling, and suffered from health problems that made it difficult for him to inflict any violence, even if he had wanted to. Therefore, on the basis of these factors, the judge determined that the FRO was no longer required to protect the plaintiff.

involvement with drug or alcohol abuse; (6) whether the defendant has been involved in other violent acts with other persons; (7) whether the defendant has engaged in counseling; (8) the age and health of the defendant; (9) whether the victim is acting in good faith when opposing the defendant’s request; (10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and (11) other factors deemed relevant by the court. Continue reading

Sometimes, in family law, when you hear the words ‘Restraining Order,’ it is easy to assume that there was an issue of family violence between spouses, or people in a dating relationship. But it is important to remember that the statute is much broader than this, and includes anyone in a familial relationship as well. The case out of New Jersey called ‘R.G. v R.G.’ deals with the issue of domestic violence between brothers, and the role of New Jersey restraining orders between siblings and other members of the family, outside of a romantic or dating relationship.

Essentially, the argument stemmed from disagreements on how to care for the brother’s elderly parents, particularly after their mother suffered an illness and required more extensive care than could be provided by the children. Nasty emails, text message exchanges and heated conversations culminated into a physical altercation while both men were at the parents’ care home, wherein the defendant physically threatened his brother, and ended up pushing his brother at least 6 times, resulting in two falls and his glasses falling off. The police were called, and the defendant was charged with simple assault. During the initial hearing for a restraining order, the Plaintiff admitted that he believed an order was necessary, and that he had fear for the safety and well-being of himself and his family. He also admitted that, aside from this incident, the brothers did not have any history of domestic violence, although the defendant’s son had also successfully obtained a restraining order against his own father two years earlier. In light of the evidence, the trial court entered a restraining order against defendant, who of course, appealed.

To appeal a trial court’s entry of a restraining order in NJ is not easy, as the appellate court gives great deference to the trial courts findings of fact and conclusions of law. The complaints defendant presented to the court was first, a jurisdictional challenge, stating that the plaintiff did not meet the statutory definition of a victim of domestic violence. Luckily for the plaintiff, the statute had been amended prior to the incident in question, which significantly expanded the definition of a victim under the statute. Previously, the requirement was that the relationship needed to be between current or former members of the same household. The statute was amended to protect anyone over the age of 18 who has been subjected to domestic violence by “any other person who is a present household member or was at any time a household member.” (N.J.S.A. 2C:25-19(d). The court did not spend much time on this argument, finding that the statute intended to include victims just like plaintiff in this case. Continue reading

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. Continue reading

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. Continue reading

Criminal Coercion, in its simplest terms, is a threat of some sort of harm for the purpose of compelling someone to act in a way they would not otherwise act. The person threatened is the victim of the criminal coercion. Think in terms of someone threatening to harm your children if you do fail to do something demanded. You take this action only to protect your children from the harm threatened. It is not just the threat that is necessary for criminal coercion, but that you complied with the demands to prevent the threat from being carried out.

A recent Superior Court case, J.L. v. A.C., defined coercion and its application pursuant to the new addition to the Prevention Against Domestic Violence Act (the “Act”). The Court interpreted the new addition to the act as including acts of intentional intimidation, or intent to intimidate, by threatening to harm a child or other loved one. Continue reading

Final Restraining Orders (FRO’s) are permanent in the State of New Jersey, which means that they do not have an expiration date. Without going to court to request a change in the FRO, it will continue to be valid indefinitely. In order to remove, modify, or dissolve a FRO the victim (the person who is being protected by the FRO) or the defendant (the person the FRO is entered against) must go before the court and request that such a change be made.

Once a motion is made to dissolve a FRO, a judge will review the court documents that led to the issuance of the FRO in the first place, and then it will inquire about the current state of the parties relationship to determine whether or not to dissolve the FRO.

The Carfagno Factors

The judge will look to several factors to determine whether there is a good reason to dissolve the FRO. The 11 factors contemplated are taken from the 1995 New Jersey case Carfagno v. Carfagno. Continue reading

A number of factors will affect the award of child custody in New Jersey case, including some obvious factors like the fitness of the parents, the needs of the child, and the relationship of the parents with the child. In addition, a less considered but no less important factor that a court will consider is any history of domestic violence in the family. To best understand how domestic violence affects child custody, we must first understand what domestic violence is and how child custody is awarded before we can put the two pieces together.

WHAT IS DOMESTIC VIOLENCE?

Domestic violence is the commission of a certain underlying act on another by a person who has a close relationship with that other person. The close relationship may be between spouses, former spouses, boyfriends and girlfriends, or some other family members. The acts that constitute domestic violence include, but are not limited to, assault, harassment, stalking, and homicide. Continue reading

What is considered domestic violence?

New Jersey defines domestic violence as the commission one of a particular set of criminal offenses committed by an adult or emancipated minor against a person who falls within the state’s definition of a domestic violence victim. For more information see our article on Domestic Violence in NJ (<- link here https://www.pvalaw.com/domestic-violence.html)

What is a restraining order?

A restraining order prohibits contact between the person who seeks the restraining order and the person who the restraining order is entered against.

What effect does a restraining order have?

A restraining order is most commonly used to prohibit the person it is entered against away from the person who sought the restraining order. It may also contain other prohibitions, based on the violence alleged by the victim. Those can include prohibiting any contact including phone calls and texts, the surrender of the defendant’s firearms, ordering counseling, and others as appropriate. Continue reading

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