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R.G. v R.G. and New Jersey Restraining Orders

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.

The second ground defendant presented were evidentiary issues – that the evidence presented and used was overly prejudicial. Because the defendant was pro se at the trial level (and did not object to the evidence presented), the error was reviewed by the plain error standard, meaning a reversal would occur only for an error that was clearly capable of producing an unjust result. The appellate court acknowledged that, in obtaining a New Jersey Restraining Order, while evidence of previous history of domestic violence is allowed, there can be no evidence regarding a defendant’s past altercations with others, and therefore, the testimony that plaintiff provided concerning the relationship between defendant and his son in another altercation was not permitted under the statute. Furthermore, there was an error in plaintiff’s testimony in that he never established that his testimony was based on his personal knowledge, and was therefore, inadmissible hearsay. Given the fact that the trial judge based his ruling on the prior history between the parties, and that the evidence attempting to show this relationship was inadmissible, the appellate court found that there was insufficient evidence to uphold the issuance of the restraining order, and thus reversed the order.

The court also addressed the final point of contention presented by the defendant – that the evidence presented did not hold up under the current case law required to get a final New Jersey restraining order under the Silver case. The court must find that there was first, an offense under the statute, and also a basis to conclude the safety of the victim is threatened and that in order to prevent further danger, a restraining order is necessary. In this case, the trial judge found that the offenses committed by the defendant were harassment and simple assault. First, on the issue of harassment, the appellate court agreed that the defendant definitely sent repetitive text messages with offensive context, but they analyzed whether the defendant sent these messages with the requisite intent to harass. The evidence presented to the judge at trial was one-sided, with plaintiff’s responses almost entirely blurred out. Therefore, the court is unable to determine whether the context of the entire conversation is enough to show that the defendant was sending harassing messages, with the purpose to harass. There was no evidence that plaintiff ever asked him to stop sending messages, or indeed, that he was ever even alarmed or fearful of the content. While the exchanges between the brothers might have been vulgar, unpleasant and offensive, the court of appeals held that it did not go far enough to warrant the commission of an offense of harassment, and so, this finding was reversed.

As for the simple assault, the defendant’s agreement that he shoved plaintiff to the point where he was knocked to the ground, that a finding of simple assault is supported by the evidence. Therefore, the first prong – the finding of a commission of an offense in the statute – is satisfied. The second prong in Silver requires that the defendant must have wanted to abuse or control the victim. Given the fact that the evidence of any prior history between the parties had already been dismissed by the court, that the plaintiff followed the defendant outside to continue the argument, and the incomplete nature of the text messages, plaintiff is unable to carry the burden propounded to him by this second prong of the Silver case.

This case offers a good lesson when parties attempt to get a New Jersey restraining order: the statute is broad when it comes to potential victims of domestic violence, encouraging those at the receiving end of threats and violence to ask for relief. But, it also shows the dangers of a party attempting to represent themselves, and how important but confusing getting proper evidence before the court can be. It is important to seek out legal counsel in any case, but particularly in complex matters of evidence and procedure.

If you have more questions on the complexities and overall process of how to get a New Jersey restraining order, contact the Law Offices of Peter Van Aulen for a free initial consultation at 201-845-7400. With over 20 years of experience, he can guide you through this process, and any other issues that arise in matters of family and domestic law.


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