A difficult aspect of my New Jersey Family Law practice is dealing with Domestic Violence issues. When a couple is breaking up, emotions run high. Regretfully, at times some people simply cannot control their temper during this difficult time of their lives and cause their soon to be ex-spouse or partner to become fearful for their safety. These dreadful episodes are so common that the state of New Jersey enacted the Prevention of Domestic Violence Act to protect victims. [Read more…] about How Victims of Domestic Violence can Protect Themselves in New Jersey
To enter a final restraining order under the predicate act of harassment, your lawyer must present your case so that a judge of the Superior Court of New Jersey may analyze the two-part Silver test. First, a New Jersey Family Court must determine if a predicate act of domestic violence has occurred. Then, the court must decide if there is any immediate danger to the victim. In determining if is a possibility of immediate danger, the court must consider and make factual findings related to the past history of domestic violence between the parties. The attorneys make their final arguments and then the judge decides if the restraining order should be made final.
Yes. Recently this restraining order lawyer reviewed State v. W.B., in which the New Jersey Appellate Division reviewed a domestic violence case that dealt with a defendant who suffered from mental health issues. The defendant father, appealed from a contempt order issued by the Superior Court of New Jersey, Family Part of Burlington County, on October 22, 2014, because the court found that W.B. had violated a temporary restraining order. W.B. violated this temporary restraining order by calling his daughter from a mental health facility during a psychotic episode. W.B. argued that he was entitled to a new hearing because the Family Part committed error by denying his request for an adjournment to procure his mental health records, and that the State failed to prove that he had knowingly or purposefully violated the temporary restraining order. Under the specific circumstances, and because the production of evidence relating to W.B.’s mental state was so important to his defense, the New Jersey Appellate Division held that his adjournment request should have been granted. As such, the appellate panel vacated the contempt order and remanded the issue for a new hearing.
As an experienced trial attorney, I am well aware that New Jersey’s Prevention of Domestic Violence Act allows a victim to obtain a temporary or final restraining order against a “household member.” However, while most lawyers understand this to include what is commonly known as “elder abuse,” I have found that far too many folks do not have a full appreciation of who has standing (i.e., the ability to seek a retraining order) under New Jersey’s domestic violence laws. However, the Honorable Lawrence R. Jones, recently specifically confirmed that that Prevention of Domestic Violence Act specifically includes victims of elder abuse at the hands of their own adult child.
In the very recent Ocean County Superior Court case of J.C. v. B.S., set the record straight on elder abuse in New Jersey. This case of first impression held that public policy allows victims of elder abuse to use the Domestic Violence Act to seek protection, and obtain restraining orders against their abusers.
In J.C. v. B.S., the Ocean County Superior Court explored the connection between New Jersey’s Prevention of Domestic Violence Act and elder abuse. The court found that some senior citizen’s might be particularly vulnerable to abuse due to their advanced age and physical limitations. Unfortunately, under certain circumstances this abuse could come from their own family members living under the same roof. Moreover, elder abuse does not have to be actual physical abuse, as emotional abuse can be just as, if not more harmful than physical abuse in certain circumstances. Chronic use of obscenities by an adult child toward their senior parent, may be substantial enough to constitute harassment and domestic violence under the two-pronged test of Silver v. Silver. Such verbal use of obscenities can be even more pervasive and harmful when done in the parent’s own home. In J.C. v. B.S., an adult son’s continued use of shocking verbal obscenities and profanities towards his elderly, physically compromised mother, in her own home, along with other conduct, constituted unacceptable harassment. Under the totality of the circumstances, and the Silver, the court found that the son’s actions warranted the issuance of a domestic violence restraining order that removed him from his mother’s home.
The elderly mother, referred to as J.C., was a seventy-three year old senior citizen. Not only had she already suffered two mini-strokes, she also recently had two back operations and a hip replacement. Physically, she was frail, and had difficulty walking. Regardless, she still bravely lived independently in her own home with a friend. She had generously allowed her adult son to stay with her at her house. The son had no ownership interest in his mother’s home, nor did he have any formal lease agreement or tenancy arrangement with his mother.
The mother filed a domestic violence complaint against her adult son. She sought a final restraining order to remove him from her home on the grounds of ongoing harassment on an almost daily basis. The mother’s credible testimony revealed that her son would constantly refer to her as a “bitch”, “whore”, “cunt”, and other disrespectful expletives and obscenities referring to her female anatomy. The mother testified that his son’s outburst were usually connected to his use of alcohol. In addition, the mother testified that her son would constantly and forcefully poke her and on one occasion almost caused her to fall down. On another recent occasion he put his hands around her throat. She understandably felt threatened and harassed by his disrespectful and menacing conduct. When she would try to call the police, he would obstruct her way and grab her phone. An eyewitness who was familiar with both mother and son testified that she personally heard B.S. call his mother such obscenities such as “cunt”, “bitch”, and “loser”.
On August 26, 2015, J.C. finally managed to call the police. She sought help after B.S. came home drunk and again began verbally abusing her and berating her with filthy language. The court granted the mother’s request for a temporary restraining order and also scheduled the issue for a final hearing. During the final hearing the mother acted introverted and quiet. She appeared to be upset at having to resort to court in the first place. Conversely, the son acted hostile, and verbally aggressive at court. Even though he admitted to using obscene language towards his mother in the past, he stated that he did not do so on a regular basis. He also contended that his mother was mean and aggressive towards him, and allegedly chased him around the house. However, he could not clearly explain how or why she “chased” him, or how she could even physically do so after two back operations, a hip replacement, and two mini-strokes. Furthermore, he failed to credibly prove that he was in any type of actual fear of his mother. Furthermore, he could not present any reason as to why a grown adult would voluntarily and indefinitely stay at his mother’s house if that same mother was abusive towards him. His only explanation of the living arrangement was that he and his mother were helping each other out. Needless to say the court did not find his argument very credible.
At the end of the hearing, the judge found that the mother’s testimony was significantly more credible than her son’s testimony. The judge also found that the son had in fact been verbally harassing his mother on an ongoing basis through constant verbal obscenities. Moreover, the son acted with hostility and with an intent to harass. This was evidenced by his inappropriate physical conduct towards his mother at her house, including repeated poking, placing his hands around her neck, and obstructing her attempts to call the police. Therefore the court found that the son’s conduct constituted domestic violence sufficient to warrant a restraining order.
The court stated that there was a clear need for special protection of the elderly against abuse and domestic violence. There is no specific language in New Jersey’s Domestic Violence Act that creates a special category for “elder abuse”. The court reasoned that when an elderly parent is the target of abuse from an adult “child” who is living in the senior’s home, there is a need to protect that elder from familial abuse. As a general mater, it is fundamentally abhorrent for an adult child to physically or verbally abuse and harass a parent, especially an elderly one. Such behavior is repugnant to the basic nature of civility and respect rightfully given to elders as a part of human decency. A substantial part of the abuse was the use of verbal profanities. When based primarily upon the alleged use profanities, a court can decide to grant a restraining order, depending on the factual circumstances.
The present matter the judge found that the son acted in a way that was objectively socially unacceptable, and crossed into the realm of harassment and domestic violence. New Jersey Statute 2C:25-19 includes harassment as a form of domestic violence. Harassment is defined as any “communication with purpose to harass, in offensively coarse language or any other many likely to cause annoyance or alarm”. The degree and frequency of the abuse demonstrated the son’s hostility towards his mother with purpose to cause emotional upset pain and injury to her own self-esteem. No reasonable person, senior or otherwise, would tolerate his type of behavior in their own home, particularly when the adult child is living with the parent. The underlying protection of the Domestic Violence Act is the right to be left along. People also have a right to feel safe in their own home.
The court noted that in the 2006 case of Silver v. Silver, the New Jersey Appellate Division established a two-pronged analysis to determine where to enter a final restraining order. First the court must determine if a predicate act of domestic violence has occurred. Then the court must decide if there is any immediate danger to the person. The son’s conduct in the court room clearly reflected a person hostile towards his mother. In consideration of all the above reasons the court granted the final restraining order to prevent the son from entering into the mothers home.
If you or a loved one is the victim of elder abuse, please contact my office today so we may get to work to protect the elderly.
Far too often as a New Jersey Divorce Attorney, my cases involve some semblance of NJ domestic violence. When folks finally come to consult with my office regarding such terrible situations, I always ask if they have preserved any “evidence” (I frequently ask the same question in a New Jersey Child Custody case). During a New Jersey Final Restraining Order trial, the old “he said, she said,” scenario almost always raises its ugly head. This is the case in most domestic violence trials. Simply put, it is extremely rare for a witness to be there when domestic violence occurs. A vast majority of New Jersey domestic violence incidents occur inside the home. Therefore, obtaining and safeguarding evidence is crucial. The “he said, she said” dilemma is virtually eliminated in a restraining order trial when this New Jersey Family lawyer has hard evidence to introduce to the Superior Court of New Jersey. Let’s explore further.
In 2009, the United States Bureau of Labor Statistics stated that a case is only as strong as its evidence. Therefore without evidence, arguments become opinions, causing cases to be viewed as he-said she-said ones. If you are the victim, it is important that any and all evidence is preserved no matter the situation so that your argument is stronger and can directly prove the truth of the matter asserted. In cases involving domestic violence, it is especially important to preserve evidence if you are the victim because you might be responsible to bear the burden of proving your case.
In a domestic violence case, the following are standard pieces of evidence that I recommend preserving:
- Threatening text messages
- Harassing phone calls
- 911 call recordings
- Witness statements
- Prior restraining orders
- Harassing Facebook posts
- Pictures of bruises or property damage
- Medical records
- Police reports
- Anything in writing from the abuser i.e. a letter
The more evidence you can save, the better chance you have of winning the case. If tried before a jury, whatever evidence is admissible will be presented to the jury to strengthen your case. If the evidence is relevant to the case and doesn’t violate a rule of evidence, it will likely be admitted. For example, if you have been attacked by your spouse and have pictures of the bruises, save them. These pictures will likely be admissible because they are highly relevant to your case. They also will help your attorney prove that you are a victim of domestic violence and therefore should prevail in court.
Preserving evidence is also extremely important because it will help lawyers win more cases on behalf of victims of domestic violence. There are countless instances in which abusers walk free of any charges because there is no concrete evidence to show they have in fact abused their wife or husband. It is a proven fact that when evidence is introduced, it is more likely for a victim to win the case. This is true because evidence is tangible and not coming directly from the mouth of the victim. The victim might be scared to testify, fearing that he or she might be attacked again if the abuser was found innocent. Since the lawyers are the ones introducing the evidence in the first place, it places more emphasis on their role in the case as opposed to putting the victim in the spotlight.
Even if you have once been abused once, it is vital that you save any proof of the incident. Domestic violence is rarely a one time occurrence. It follows a distinct cycle. While your spouse might apologize and promise that he or she will never act up again, it is important to be skeptical of this and not to fall into the domestic violence cyclical trap. For more information or to schedule a consultation, please contact my office today. Thank you.
Over the course of my career as a divorce and family law attorney I have watched technology change many aspects of New Jersey law, especially as it pertains to New Jersey’s Prevention of Domestic Violence Act. When I started practicing in my hometown of East Brunswick, New Jersey, in 1996, many restraining order trials were most often “he said, she said” affairs as most times there were not any no witnesses or other proofs. Then technology altered many aspects of our society, including acts of domestic violence.