Is An Unborn Child Protected Under New Jersey's Prevention of Domestic Violence Act?

Is An Unborn Child Protected Under New Jersey's Prevention of Domestic Violence Act?

In New Jersey, a fetus is not considered a person. However, what happens if a woman is a victim of domestic violence while she is pregnant? Will the unborn child be protected under a restraining order as well once he or she is born? That was the red-hot issue addressed in the landmark case of B.C. v. T.G.Following is this lawyer’s legal analysis.

In the case the parties had a dating relationship; however, the relationship quickly ended when the girlfriend informed the boyfriend that she was pregnant with his child. The boyfriend freaked out and wanted the girlfriend to have an abortion but she refused. As a result, the boyfriend and four of his friends assaulted the girlfriend. It was unknown whether the unborn child suffered damage in the assault. After the incident, the girlfriend immediately filed for a restraining order and when to court.

At the trial, she testified in detail about the assault and supplied several graphic pictures to illustrate the magnitude of her injuries. She also introduced witness testimony from a third person that had seen the entire assault. On the other hand, the boyfriend testified that although he witnessed the girlfriend being assaulted by his friends, he did not take part in the beating. However, the court did not believe him and found that he has “ambushed the girlfriend and committed egregious domestic violence against her in a premeditated and orchestrated group attack.”

As a result, the court entered a final restraining order, which prohibited the boyfriend from having any contact with the girlfriend. Additionally, at the girlfriend’s request and as permitted under the Prevention of Domestic Violence Act, the court added the girlfriend’s parents and three siblings as additional “protected persons” under the restraining order. However, the girlfriend wanted her unborn child to be protected as well once he was born.

Pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17, a court can issue a final restraining order, which includes a victim’s family members as additional protected persons. In particular, the Act permits the court to restrict an abuser from “entering the residence, property, school or place of employment of the victim or of other family or household members of the victim.” Furthermore, the Act authorizes the court to prohibit an abuser from “stalking or following, or threatening to harm, to stalk or to follow the victim or any other person named in the order in a manner that would put the victim in reasonable fear that the abuser would cause the death or injury of the victim or any other person.”

The court began its analysis by reiterating the well-known fact that in New Jersey, a fetus is not considered a person until after live birth. However, the court noted that once the fetus is actually born alive, the child becomes a person and has legal rights that could relate to events that occurred prior to birth. The court stated that such rights definitely include the right to protection under the law from pre-birth, wrongful acts of others.

Next, the court looked to the 1994 amendment to the Prevention of Domestic Violence Act. Pursuant to the amendment, a victim would now include any person “who has been subjected to domestic violence by a person with whom the victim anticipates having a child in common, if one of the parties is pregnant.” The court stated that it was reasonable to conclude that the Legislature, in 1994, recognized the need to protect pregnant victims of domestic violence. Therefore, it only seemed logical to allow a pregnant domestic violence victim to obtain pre-birth advance protection for her unborn child against a violent abuser.

The court explained then that it had to decide whether to wait until the baby was born to take protective action, thereby requiring the victim to come back to court and file another application to add the child onto the existing restraining order. However, after considering the facts presented the court found that it was permissible to add the unborn child as a protected family member under the restraining order.

The court noted that “there is nothing in either our law or public policy which prohibits a court from entering a final restraining order protecting a pregnant victim of domestic violence by including an advance protection provision for her unborn child, to take effect immediately upon the child’s live birth. Such a provision does not equate a fetus with a person until after live birth and more importantly, comports with the spirit of the Prevention of Domestic Violence Act in striving to provide a pregnant victim with the maximum protection from abuse the law can provide.” Furthermore, the court believed that it would be unfair and overwhelming for the victim to return to court after the child was born in order to add the child as a protected person under the restraining order.

Although domestic violence is a serious problem in our society, New Jersey's Prevention of Domestic Violence Act continues to strive to afford victims of domestic violence the maximum protection from abuse the law can provide. For more information regarding your rights in a domestic violence situation, please contact my office today.

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