DV in NJ: Re-thinking Permanency of Restraints and Examining Newer Causes of Action

The New Jersey Prevention of Domestic Violence Act (PDVA) (N.J.S.A. 2C:25-17 et seq . ) provides two forms of relief to a victim of domestic violence: (1) civil relief, by obtaining a restraining order; and (2) criminal relief, by which a victim may file a criminal complaint. Here, we take a closer look at the civil side—the Final Restraining Order.

A restraining order is an order issued by the court pursuant to a complaint under the PDVA to protect a victim of domestic violence. Upon a finding at a hearing that an act of domestic violence occurred, the judge will determine whether to issue a Final Restraining Order (FRO) and what types of additional relief will be granted. An FRO is issued upon a showing that the victim was subjected to domestic violence by someone with whom the victim has a domestic relationship as defined by the PDVA. The victim must prove that a predicate act of domestic violence occurred and a restraining order is necessary to protect the victim from immediate danger or future acts of domestic violence. The standard of proof at a FRO hearing (“preponderance of evidence”) is lower than that required in a criminal trial (“beyond a reasonable doubt”), even though the sanctions for violating a FRO are criminal sanctions. MORE


Domestic Violence and Defining Who Is A Household Member

Domestic Violence
Domestic Violence

When most people think about the issue of domestic violence, they first think in terms of acts against a wife, a husband, a boyfriend or a girlfriend.  People with a little more knowledge of this area of law will also know that it includes family members living with the perpetrator of the domestic violence.  These blood-related family members include a mother, father, sister, brother, cousin and so on.  So this second category includes relatives in a non-sexual and non-dating relationship.

Even broader, the household relationships that may be included in a domestic violence scenario also include non-blood relatives who are also not romantically involved.  So for example, the brother-in-law who lives with his wife’s family may be a victim or perpetrator of domestic violence.  You may find yourself a victim of your live-in mother-in-law’s aggression.

Even a non-relative can be a party in a domestic violence matter.  Therefore, if a friend lives with you, that situation can qualify.  The cast of “friends” living together, even when not romantically involved, can qualify.  But it gets even broader.

Case law tells us that college roommates, living together in a dorm room, may qualify as parties in a domestic violence matter.  That relationship lasts one year or less, but still satisfies the “household” requirement of domestic violence law.  But a 2011 Appellate decision further expands the definition of “household member”.  In the case S.Z. v. M.C., the appellate court afforded protection against someone who was only a temporary guest in the victim’s home and that temporary guest did not even reside in the victim’s home at the time that the alleged conduct occurred.

It is clear that the definition of who precisely is a “household member” has been greatly expanded over the course of time.  The serious implications as to the heightened behavioral caution that must be adhered to between people who even temporarily reside together cannot be ignored.

Dissolving A Domestic Violence Final Restraining Order

Restraining Order
Restraining Order

Unlike some other jurisdictions (such as Florida), New Jersey does not have an automatic sundown provision in its Final Restraining Orders (FRO) entered pursuant to the Prevention of Domestic Violence Statute (PDVS). That is, there is no expiration date for the restraints and the Order can remain in effect in perpetuity so long as the need remains.

This can have a serious impact on individuals against whom restraints have been entered, as this information is shared between state and federal agency data systems. Often, as months, years and even decades pass, the defendant “moves on,” yet still is subject to the limitations such an Order can have on their day to day life. By way of example, imagine a client who had a restraining order entered against him while he was in college. Ten years have passed since entry of that Order and he has gone on to become a medical doctor. Imagine further that he no longer lives in New Jersey (nor does the victim) and he travels for work. He becomes immensely embarrassed by the fact that that he is constantly being “red-flagged” at airports in front of colleagues and peers. He is forced to either awkwardly avoid an explanation or to divulge this very personal bit of history, which was ten years and a lifetime in his past – he and the plaintiff had no communication since before their court date and lived many states apart. He rightfully worries about the impact these events might have on his career. In a very real sense, the restraints had long since outlived their purpose.

New Jersey Courts have noted that the PDVS is to be used as a “shield” to protect the alleged victim and not as a “sword” to punitively oppress the offender. In the above example, the parties had had no contact for a decade and lived hundreds of miles apart. To the extent that the restraints served no current purpose, they were unfairly impacting on the client and were potentially jeopardizing his career.

In such instances, an application to dissolve the restraints may be made to the Court. The analysis will consider a multiple number of factors designed to ascertain whether the restraints remain necessary and the likelihood the defendant will recidivate. (See Grover v. Terlaje, 379 N.J. Super 400, 408 (App. Div. 2005); Carfagno v. Carfagno, 288 N.J. Super 424 (Ch. Div. 1995)). The real lesson, though, is to be mindful that, in New Jersey, Final Restraining Orders and the injunctions they impose can continue to affect an individual long after the relationship that instigated their entry has ended.

“Intent to Harass” and Domestic Violence

My experience has been that many domestic violence litigants (and unfortunately many attorneys) fail to understand that controlling free speech is not the key goal in New Jersey’s domestic violence laws.  Even use of extremely offensive language in a household is not of itself sufficent to create a finding of domestic violence.

Domestic violence is a complex subject and certainly this blog is an insufficent forum to offer more than tidbits of information on the subject.  However, a recently published case emphasized that for a finding of harassment to me made, at a minimum the perpetrator of the offensive language must intend to harass the person, or “victim” to whom the statements are made. 

Finding intent is not automatic, especially in a typical “he said/ she said” scenario.  That the person hearing the statement is offended or insulted may also not be sufficient.  Judges are obligated to sift through the testimony and any evidence offered at a hearing to determine whether there really was an act of domestic violence, or whether household squabbling that is short of domestic violence (called “domestic contretemps”) has occured.

Separation of Husband and Wife Before a Complaint is Filed

Often one of the first questions a matrimonial attorney gets asked by clients contemplating a divorce is, “how do I obtain a legal separation?”  The answer is that in the State of New Jersey there is no such thing as a “legal separation”.  If one wishes to separate from their spouse, they simply move out.  Unlike many other states, New Jersey does not have a law on legal separation.  

In this State, one does not have to ask for the court’s permission or obtain a formal decree of any sort in order to be able to move out of the marital home and “officially” separate from his or her spouse.  Of course this freedom to separate is not a license to abandon all financial and domestic responsibilities

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