May I Obtain A Restraining Order For Assault If I Am Not Injured?

May I Obtain A Restraining Order For Assault If I Am Not Injured?

Yes. Under New Jersey's Prevention of Domestic Violence Act an assault certainly provides for protection of the law after an assault. As an experienced restraining order lawyer, I am well aware that the victim does not need to show obvious marks of an assault in order to obtain a final restraining order from a judge of the Family Part of the Superior Court of New Jersey.

In C.S. v. M.A.K., the parties engaged in a dating relationship for about six years. The parties lived in M.A.K.'s home for two years with C.S.'s developmentally disabled son. M.A.K. gave C.S. a car for Christmas in 2011, but when the parties' relationship ended, M.A.K. asked C.S. to return the car to him by April 1, 2016. M.A.K. did, however, allow C.S. and her son to continue living in his home after the relationship ended.

C.S. did not return the car to M.A.K. by April 1, 2016, as he asked. When the parties came home from work around 4:00 p.m., they began to argue. M.A.K. had been drinking at a local bar and ordered C.S. to give him the car keys when he returned home. C.S. refused and the parties continued to argue. C.S. testified at the final restraining order hearing on May 4, 2016 that during the argument, M.A.K. grabbed C.S.'s throat and began to strangle her. C.S. stated that M.A.K. used two hands to apply pressure to her throat to the point that she was in pain and could not breathe. M.A.K. then threw C.S. into the furniture and onto the floor. C.S. stated that she found a bruise on her leg later that night from when M.A.K. threw her.

After the argument, a neighbor called the police. Two officers reported to M.A.K.'s house and found C.S. crying hysterically and having difficulty speaking. C.S. told one of the officers that M.A.K. tried to strangle her and threw her to the ground. C.S. also told the officer that she was experiencing neck pain, but the officer stated that he did not see any marks or injuries on C.S.'s neck or anywhere else. The officer also spoke with M.A.K. and found M.A.K. to be relaxed and accommodating. M.A.K. also testified at the final restraining order hearing, and denied harming C.S. M.A.K. stated that when C.S. ran passed him screaming and holding her neck, he simply put his hands up in the air.

At the final restraining order hearing on May 4, 2016 at the Superior Court of New Jersey Family Part, C.S. testified to M.A.K.'s history of physical abuse and threats. M.AK. denied all allegations that he was physically or verbally violent toward C.S. In fact, M.A.K. stated that C.S. was the violent one in the parties' relationship. After the hearing, the trial court judge found C.S.'s testimony to be credible and found that M.A.K.'s testimony was not. The judge also detailed her findings regarding the assault allegations on the record. The judge held that M.A.K. had committed domestic violence under the Prevention of Domestic Violence Act of 1991. Specifically, the judge found that M.A.K. committed assault under N.J.S.A. 2C:12-1. The judge also found that C.S. needed protection from further harm and granted C.S. a final restraining order.

On appeal, M.A.K. argued that C.S. did not prove that M.A.K. committed domestic violence under the Prevention of Domestic Violence Act of 1991. M.A.K. claimed that the trial court judge did not consider the officer's statement that he did not observe any physical injuries or marks when speaking with C.S. to demonstrate that an assault had occurred. Also, M.A.K. argued that a final restraining order was not necessary to protect C.S. from future harm because the parties' relationship had ended and the parties no longer wished to communicate with each other.

The New Jersey Appellate Division stated on appeal that it must give deference to the trial court's factual findings when said findings are supported by significant, reliable and credible evidence. The Appellate Division must also give deference to the trial court's factual findings because the Family Part has special expertise in family matters. The Appellate Division further stated that deference should be given when testimony is involved because questions of credibility arise and the trial court judge is able to determine witness credibility, which is impossible to determine through a review of the record.

The Appellate Division noted that the trial court must follow the two-step inquiry laid out in Silver v. Silver to determine if a final restraining order should be granted. The first step under Silver is to determine if the person seeking the final restraining order has proven that the defendant committed one or more predicate acts listed in N.J.S.A.2C:25-19(a). A predicate act is a previous crime or offense that is similar to the crime or offense being claimed. In New Jersey, predicate acts under N.J.S.A. 2C:25-19(a) include stalking, assault, harassment, and criminal mischief, among others. The Appellate Division noted that the trial court judge must consider any previous acts under the totality of the circumstances of the parties' relationship and history to properly evaluate the need for a final restraining order. If the party seeking the restraining order proves a predicate act, the court must then, under Silver, determine if a final restraining order is necessary to protect the victim from future abuse or harm. In order to determine if the restraining order is necessary, the trial court judge must evaluate the history of domestic violence and whether there is an immediate threat of danger to the victim.

The Appellate Division agreed with the trial court and affirmed the trial court's decision to grant C.S. a final restraining order. The Appellate Division stated that, despite M.A.K.'s belief, there is no requirement that the assault victim present physical marks or injuries to demonstrate the predicate act. The Appellate Division explained that an assault occurred if there was an attempt to physically injure the victim, including causing the victim illness and physical pain. Additionally, the Appellate Division stated that it would be inappropriate to deny a final restraining order just because the parties' relationship ended, especially when the evidence demonstrates that a final restraining order is necessary to protect the victim from future harm or abuse. Ultimately, the Appellate Division agreed with the trial court's determination that M.A.K. committed acts of domestic violence, and that a final restraining order was necessary to protect C.S. from future abuse or harm.

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