May I Obtain A Final Restraining Order If I Did Not Ever Go To The Police To Report It?

May I Obtain A Final Restraining Order If I Did Not Ever Go To The Police To Report It?

Yes. As the restraining order lawyers at our East Brunswick, New Jersey law firm are well aware, a judge of the Family Part, Superior Court of New Jersey must gather all necessary facts in order to arrive at a decision. In order to be awarded a Final Restraining Order your attorney must prove to the judge that domestic violence occurred on the date in question and often must know about any previous incidents of domestic violence (reported or unreported to the police) in order to prevail. In the following case, the victim’s request for a Final Restraining Order was denied. However on appeal, the NJ Appellate Division determined that the trial court placed far too much emphasis that the victim had failed to report the prior history to the police (or file a temporary restraining order) and therefore sent the case back to the trial court in order to ensure that all facts are taken into consideration. As the lawyers at our law firm only handle family law and restraining order cases, we prepare our clients as to how we prove to a N.J. family court that it is consistent with the cycle of domestic violence for a victim to not report domestic violence out of fear of further harm from their attacker.

In L.N. v. G.D., the parties were married and had two children born of the marriage. The parties had been estranged for many years, but were living in separate bedrooms in the same house. The parties were in the process of getting divorced when the altercation occurred. L.N. filed for a temporary restraining order (“TRO”) with the Superior Court of New Jersey Family Part.

In her application for a TRO, L.N. stated that G.D. claimed that L.N. had restricted his parenting time with the parties’ daughters around the holidays. When L.N. denied restricting G.D.’s parenting time, G.D. called L.N. vulgar names. L.N. then entered the master bedroom, which is G.D.’s bedroom, in order to retrieve some of her things. G.D. believed that L.N. was recording him, so he forcibly grabbed her phone and harmed her in the process, although the parties disagreed on how the injuries occurred. L.N. claimed that G.D. knocked L.N.’s head against a wall, which led to a bump on her head. She also claimed that she received bruises and scratches on her hand from the incident. G.D. only admitted to causing a small scratch on L.N.’s hand. The police report L.N. filed only included the scratches to her hand because the bruises to her head and back only appeared a few days later.

The Family Part found that G.N. committed domestic violence under the Prevention of Domestic Violence Act(“PDVA”). Specifically, the court found that G.D. committed three predicate acts of domestic violence, which are previous crimes that are related to the crime or offense being alleged. The court first found that G.D. committed simple assault, but did not find the nature of the act. Further, the court stated that the scope of L.N.’s injury was not significant, and that G.D. was not set up by his estranged wife. In addition, the court found that G.D. committed criminal mischief when he broke L.N.’s cell phone. Lastly, the court found that G.D. harassed L.N. because he purposely touched L.N., or threatened to do so, with the intent to harass.

The court, however, did not resolve L.N.’s claims that G.D. had abused her in the past. L.N. alleged that G.D. committed acts of domestic violence in the past when he banged L.N.’s head against the car window for misinterpreting a map. On another occasion, L.N. claimed that G.D. slammed L.N. against a wall when he was angry with the score of a baseball game. According to L.N., G.D. also said inappropriate and offensive things to her during the incident. L.N. also stated that G.D. has grabbed L.N. by the neck, broke various items after throwing them, and used demeaning and inappropriate language toward her. G.D. denied most of the allegations, but admitted patting L.N. down after suspecting she was recording him. L.N. claimed that G.D. also pulled at her bathrobe on that occasion.

Despite finding that G.D. committed acts of domestic violence against L.N., the court denied L.N. a final restraining order (“FRO”) because it found that an FRO was not needed to protect L.N. from future harm. The court heavily considered that the parties were still living in the same house, and that L.N. had not filed for a TRO in the past. The court doubted that there was an actual need to protect L.N. since the parties were in the process of getting a divorce and there had been numerous arguments over the last six years. After denying the request for an FRO, the court recommended that G.D. go to anger management counseling.

On appeal, L.N. argued that the trial court was wrong to deny her request for an FRO. L.N. argued that the court gave too much weight to the violent nature of the acts, and that she did need protection from future harm. The New Jersey Appellate Division stated that it would not reverse the decision of the lower court when the court’s decision was supported by significant and credible evidence. However, the Appellate Division would intervene when the lower court applies legal standards incorrectly. The Appellate Division stated that under Silver v. Silver, the trial court must determine two things: whether acts of domestic violence have occurred in the past and whether an FRO is needed to protect the victim from future harm. In order to find the second prong of the Silver test, the court must look to factors under N.J.S.A. 2C:25-29. Some of the factors include a previous history of domestic violence, financial circumstances, the presence of immediate danger, and the best interests of the victim and any children. Furthermore, the Appellate Division noted that the trial court must weigh the parties’ entire relationship and specifically assert its findings.

The Appellate Division found that the trial court did not properly assert its findings by simply characterizing G.D.’s actions as simple assault. The Appellate Division reasoned that it is one thing to accidentally scratch someone when grabbing a phone out of the person’s hand, but it is far more outrageous to knock a person’s head against the wall while doing so. Therefore, the court found that the trial court did not properly address the first prong of the Silver test. As for the second prong of the Silver test, the Appellate Division found that the trial court did not adequately weigh the factors to determine if an FRO was necessary to protect L.N. The court reasoned that the alleged history of domestic violence should have been given more weight by the trial court, especially since it gives context and provides background for the acts listed in the complaint. The Appellate Division noted that evaluating a history of domestic violence allows the court to make inferences regarding the intent and state of mind of the abuser, and allows the court to determine if there will be future acts of violence committed against the victim.

Finally, the Appellate Division held that the trial court was wrong to give substantial weight to the fact that L.N. had not previously filed for a restraining order. The Appellate Division reasoned that L.N.’s failure to seek a TRO might be indicative of her abuse, since victims are often afraid or reluctant to seek a TRO. The court stated that a victim should not be prevented from receiving protection because they did not do so in the past. Therefore, the Appellate Division reinstated the TRO, vacated the trial court’s order and remanded for further factual findings.

Categories:

Contact Us Today!

All Consultations are Free and Confidential
    • Please enter your name.
    • Please enter your name.
    • Please enter your email address.
      This isn't a valid email address.
    • Please make a selection.
    • Please enter a message.