Under the Prevention of Domestic Violence Act, a person may move the court to dissolve or modify a final restraining order upon a showing of good cause. However, as a lawyer who has handled countless domestic violence cases, it has been my legal opinion that dissolving a final restraining order can be very difficult. This is especially true when a judge of the Family Part of the Superior Court of New Jersey learns, via testimony, of a long history of abuse including assault, criminal mischief and harassment. As an attorney, I know the defendant seeking relief from a final restraining order must prove certain factors, commonly known my lawyers and judges alike as the Carfagno standard. These factors include but are not limited to, the victim’s consent in removing the restraining order; the victim’s continued fear; the current relationship between the individual’s; has the defendant violated the restraining order since it was issued; does the defendant have a history of substance abuse; does the defendant have a history of violence with others; and whether the victim is acting in good faith in opposing the defendant’s quest to have the restraining order removed?
The recent case of J.N. v. S.B., held that when a considering such a motion, the court must determine whether the final restraining order prejudices defendant. That is what good cause is ultimately all about. In doing so, a court will analyze the case through the Carfagno standard. I also note that the defendant’s credibility issues was persuasive to the NJ family court judge in this case as well.
In J.N. v. S.B., a former New Jersey State Trooper and police officer named S.B. appealed the denial of his most recent motion to dissolve a final restraining order that prohibited him from having contact with his ex-girlfriend, J.N. The couple was involved in a romantic relationship for around four years. They did not have any children together. J.N. eventually obtained a temporary restraining order under the Prevention of Domestic Violence Act, N.J.S.A 2C:25-17 to -35. A lengthy trial ensued, the conclusion of which saw Judge Severiano Lisboa, III find that S.B. had engaged in many egregious acts of domestic violence against J.N. that ranged from physical assaults to harassment. The judge entered a final restraining order on March 30 2005.
S.B. did not file his first motion to vacate the final restraining order until 2008. He argued that J.N.’s fear of him was unfounded, and that the final restraining order prevented him from securing employment. Judge Mark Nelson was not persuaded. He denied the motion and found that J.N. was still afraid of S.B., and that she opposed the motion in good faith. S.B. filed his second motion to vacate the final restraining order in 2010. The second time around he argued that J.N. had a subjective fear of him rather than an objectively rational fear. S.B. contended that her fear was subjective because had neither a relationship nor contact for several years. In addition, S.B. also claimed the final restraining order severely limited his job opportunities in the security industry.
The judge found that J.N.’s fear of S.B. was indeed objective and reasonable based on his repeated physical assaults on women. He had a history of violence with two other women that also resulted in final restraining orders. In February 2014, S.B. filed another motion to dissolve the final restraining order. This motion came after eight domestic violence counseling sessions. Dr. Abrams met with S.B. for eight domestic violence counseling sessions. He claimed that he stopped when he was satisfied S.B. completed treatment and counseling was no longer necessary. Dr. Abrams testified that S.B. demonstrated an understanding of what domestic violence is, the cycle of violence, and his anger management issues. The doctor concluded that in his opinion S.B. was a low risk of domestic violence. Still, J.N. did not want the final restraining order vacated. She was still very much afraid of S.B. In the past, he had committed numerous and repeated acts of violence against her and other the other women who also obtained restraining orders against him. He never took any responsibility for his acts of domestic violence, and in J.N.’s eyes the restraining order was the only thing stopping him from committing further acts of domestic violence against her. The trial court found against S.B. in an oral opinion. The court determined that J.N. was still afraid of S.B. even though there had not been any contempt violations or direct contact between them in many years. S.B. appealed.
The Appellate Division started its opinion by stating that the scope of appellate review of fact finding from a trial court is limited. Generally, findings of fact made by a trial court are binding on appeal if supported by adequate, substantial, credible evidence. Deference to a trial court is especially appropriate when the evidence is mostly testimony and involves questions of credibility. A trial court hears the case, observes the witnesses first hand, hears them testify, and therefore has the better perspective than an appellate court in evaluating the credibility of witnesses. The most important reason why appeals courts give considerable deference to the judge’s fact finding is the family courts’ special jurisdiction and expertise in family matters. The only way a higher court can reverse is there is a denial of justice because the family court’s conclusions are clearly mistaken or error.
The Appellate Division noted that the New Jersey Legislature did not intend that every final restraining order be in place forever. Under the Prevention of Domestic Violence Act, a person may move the court to dissolve or modify a final restraining order upon a showing of good cause. When a considering such a motion, the court must determine whether the final restraining order prejudices defendant. That is what good cause is ultimately all about. Further, the court should mindfully consider the factors enumerated in New Jersey Statute 2C:25-29(a) before removing the protection of a final restraining order from a victim of domestic violence. The paramount factors being the previous history of domestic violence between the victim and the perpetrator, including threats, harassment and physical abuse, and the existence of immediate danger to the victim or his or her own property. Additionally, when determining if a person has shown good cause sufficient enough to warrant a vacation of the final restraining order, the court must consider the following factors covered in Carfagno v. Carfagno , as stated earlier.
Despite the need to balance these factors, the trial court’s decision did not address most of the Carfagno factors. Even though the Appellate Division recognized the heavy burdern on the trial courts from busy domestic violence and motion hearings, in making such decisions the trial court is still required to make findings of fact and state specific reasons in support of its conclusions. A failure to make clear findings and clear statements of reasoning fails to give justice to the litigants. Taking the responsibility upon itself, the Appellate Division applied the Carfagno factors and found that there was no dispute over most of the factors. Taking the factors and weighing them together the factors pointed to continuing the restraining order.
The trial court mainly denied the motion because it found the defendant to lack credibility. During testimony he was evasive and even refused to answer the question of when he physically assaulted the other partners in his life. His actions lead the judge to not believe his testimony and to not trust his intentions. A court must closely scrutinize whether the record demonstrates that there is a likelihood that violent actions would be repeated. The trial court also found that J.N. objectively feared S.B. The Appellate Division found the lower court’s reasoning to be supported by evidence. When determining whether good cause exists to vacate a final restraining order, the court must determine whether the victim continues to fear the perpetrator, and whether a reasonable victim in the same or similar circumstances would have the same fear. Therefore the Appellate Division did not find that there was good cause to vacate the final restraining order.
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