By: Justin M. Smigelsky, Esq.
“Domestic violence” is a term of art, defined under New Jersey law by the occurrence of one of more specific criminal acts – including, among other offenses, assault, harassment, stalking, lewdness and criminal mischief – inflicted upon a protected person under the Prevention of Domestic Violence Act (PDVA). The Prevention of Domestic Violence Act does not create a new class of offenses or interdict acts which are otherwise not addressed under the criminal law, but rather seeks to ensure that certain “domestic” victims have full access to and the protections of the legal system.
New Jersey Courts generally employ a two-step analysis to determine whether to issue a final restraining order (FRO); the Court must determine (1) whether a predicate act of domestic violence has been committed and also (2) whether a final restraining order is necessary to protect the Plaintiff from immediate danger or further acts of domestic violence. As the result of the second prong in the analysis, the commission of any one of the predicate acts set forth in the statute does not automatically warrant the issuance of a domestic violence restraining order – the act(s) must be evaluated in light of the previous history of domestic violence between the parties including previous threats, harassment, and physical abuse, and in light of whether there exists immediate danger to the person or property of the Plaintiff.
Pursuant to the Act, a hearing as to the merits of the domestic violence restraining order must be held in the Family Part of the Chancery Division of the Superior Court within ten (10) days of the filing of the Complaint. At the hearing, the Plaintiff alleging domestic violence must prove his or her allegations by a “preponderance of the evidence” – in other words, the scale must be tipped slightly in his or her favor. If the Plaintiff proves his or her allegations, the statute authorizes the Family Part Judge to issue an order granting several items of relief including, but not limited to, an order permanently restraining the Defendant from making contact with the Plaintiff or others, restraining the Defendant from subjecting the victim to further acts of domestic violence, granting exclusive possession of the residence to the Plaintiff, setting parenting time for children, awarding monetary compensation for losses suffered, and/or compelling participation in professional counseling or evaluations. It is important to note that the Judge has wide discretion to tailor the relief to the circumstances of the case.
The entrance of a temporary restraining order (TRO) or final restraining order (FRO) carries significant consequences, both legal and practical. For example, the issuance of a restraining order may have a significant impact on custody/parenting time disputes, limit the ability to explore alternate dispute resolution methods in divorce proceedings, and may have career implications such as with law enforcement or corrections. Even if a temporary restraining order is withdrawn or dismissed, domestic violence records are not subject to expungement – this is so regardless of the potential stigma associated with such charges. Furthermore, if a law enforcement officer finds probable cause that the restrained party violated the restraining order, the restrained party must be arrested and taken into custody. If the party is found to have violated the order, he or she is guilty of a disorderly persons offense of contempt or, in the event that the conduct constituting the violation also constitutes a crime or disorderly persons offense, is guilty of a crime of the fourth degree. Notwithstanding that a restraining order may be temporary, it is at all times a viable and enforceable order of the Court – the fact that the TRO is ultimately dismissed is not an excuse to a contempt charge for violation of the order.
If you have any questions in regards to domestic violence under New Jersey law, the Prevention of Domestic Violence Act, divorce, or family law, you may wish to consult with an experienced family law attorney. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.
Justin M. Smigelsky, Esq. / Timothy J. Little, P.C. – 2016 – All Rights Reserved