by Robert P. Panzer Esq.
It is an unfortunate fact that domestic violence is a pervasive problem both in New Jersey and throughout the United States. As a result, it is important to understand the legal process and protections afforded to victims of domestic violence in New Jersey.
In New Jersey there are two mechanisms for providing protection to victims of domestic violence. Victims can pursue protection in both the criminal and civil context. A victim may pursue filing criminal charges against a defendant by contacting the police. In such cases, the state is required to prove beyond a reasonable doubt that a criminal act occurred. The police are required to file charges if a victim exhibits signs of injury regardless of whether the victim wishes to do so or not.
In addition to criminal charges a victim of domestic violence may pursue protection in the civil context pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17, et seq., by requesting a Final Restraining Order (FRO). A victim need not pursue criminal charges to obtain a FRO and vice versa.
#b#What Constitutes Domestic Violence Necessary to Obtain a FRO?#/b#
New Jersey has established a two-pronged test that must be satisfied for a victim to obtain a FRO. First, a victim must establish that a "predicate act" of domestic violence occurred. An act of domestic violence includes one or more of the following: assault; terrorist threats; kidnaping; criminal restraint; false imprisonment; sexual assault; criminal sexual contact; lewdness; criminal mischief; burglary; criminal trespass; harassment; and stalking.
Second, it must be established that a domestic violence restraining order is necessary to protect a victim from immediate danger or further acts of domestic violence. A plaintiff is responsible for establishing his or her case by a preponderance of the evidence, which is a lower burden of proof than that required in criminal cases. In addition to the diminished burden of proof, domestic violence hearings are conducted in a relatively expedited manner and do not afford parties the right to pursue pre-trial discovery without prior Court approval.
#b#Who Qualifies as a Victim of Domestic Violence?#/b#
To be eligible to obtain a restraining order, one must qualify as a "victim of domestic violence." A victim includes a person who is 18 years or older (or is an emancipated minor) and who has been subjected to domestic violence by a spouse, former spouse, or other person who is a present or former household member. A victim also includes any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common if one of the parties is pregnant. A victim is also any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship. Additionally, a defendant must be 18 years of age (or be an emancipated minor) for a victim to pursue relief under the Domestic Violence Act.
#b#Process For Obtaining a Restraining Order#/b#
Victims of domestic violence who require the protection of a restraining order may apply for a Temporary Restraining Order (TRO) with the Family Part of the Superior Court. The police may also assist in obtaining a TRO before a municipal court judge on holidays, weekends, and other times when the Superior Court is closed.
When applying for a TRO, victims should list all acts of domestic violence that form the basis of the complaint. In addition, a detailed account of all prior acts of domestic violence should be included in the complaint. Under the Domestic Violence Act, prior history of domestic violence is both relevant, and often crucial, in determining whether a FRO should be granted. Prior history may include incidents that did not result in the police being contacted and did not result in the issuance of a TRO or criminal complaint. It is important to include all acts and prior acts of domestic violence because failure to do so may preclude introducing evidence or testimony regarding the particular incident at the final hearing.
After a victim applies for a TRO, a hearing is conducted usually without the defendant present. Because these hearings are unopposed and the court hears only the victim’s version of events, TROs are usually granted so long as a prima facia case of domestic violence is established.
A TRO provides victims immediate protection by prohibiting the defendant from having any contact or communication with the victim, as well as other ancillary relief that the court deems necessary.
After a TRO is issued and served on a defendant, a final hearing is scheduled to determine whether a FRO should be entered. At the final hearing, both parties present testimony and evidence regarding the allegations of domestic violence. If a court determines that an act of domestic violence has been proven by a preponderance of the evidence and that the issuance of a final restraining order is necessary to prevent further acts of domestic violence, the court will issue a FRO. A FRO prevents a defendant from engaging in any contact or communication with the victim and prohibits subjecting the victim to any further acts of domestic violence. In addition, a FRO may grant additional relief, including but not limited to awarding a party exclusive possession of a residence, addressing custody and parenting time issues, and awarding monetary relief (including emergency support for minor children and the victim). Further, the court is empowered to grant numerous other protective measures and "grant any relief necessary to prevent further abuse." 2C:25-29b(1)-(18).
Although the issuance of a FRO does not constitute a conviction of a criminal offense, New Jersey courts have recognized that it "has serious consequences to the personal and professional lives of those who are found guilty." For example, once a FRO is entered, a defendant is fingerprinted, required to forfeit firearms and weapons, and included in the central registry maintained by the Administrative Office of the Courts. Further, violation of a TRO or FRO constitutes contempt, and a second or subsequent non-indictable domestic violence contempt violation requires a minimum term of 30 days imprisonment. The issuing court may also impose a number of other wide-reaching sanctions.
Due to the serious consequences that can result from the issuance of a FRO, our courts have reiterated that the Domestic Violence Act is intended to assist those who are truly victims of domestic violence and that the process should not be trivialized. Further, our courts have stressed that "domestic contretemps," or marital bickering, should not be mistaken for matters of consequence warranting the protections afforded by the Domestic Violence Act.
Due to the fact that certain relief afforded by FROs impact issues that are often the most contentious between divorcing spouses (i.e. custody, parenting time, and financial support), our Appellate Division has expressed concern that parties may attempt to misuse the Act to gain an advantage in a companion matrimonial action. Clearly, the Domestic Violence Act was not intended for such purposes and our Courts serve as "gatekeepers" to filter out complaints that fail to constitute true domestic violence.
If you have any questions about domestic violence, as either a plaintiff or defendant, it is important that you seek legal advice to be sure that you are informed of all of your rights in light of the serious consequences involving domestic violence law in New Jersey.
Robert P. Panzer is a partner in the law firm of Szaferman, Lakind, Blumstein & Blader, PC, 101 Grovers Mill Road, Suite 200, Lawrenceville. 609-275-0400. www.szaferman.com.