As a family law attorney, there is no question in my mind that domestic violence cases regarding harassment are often the most difficult for New Jersey Family Part judges to determine if a temporary restraining order should be converted to a final restraining order. The lawyers at my law firm and I just reviewed the recent case of J.S. v. C.H. the New Jersey Appellate Division reviewed a restraining order against a former boyfriend who threatened to post private videos of his ex-girlfriend on the internet. The court found that while a domestic violence crime would justify a restraining order, the boyfriend’s threats did not amount to criminal harassment. Following please find the facts of the case as well as the Court’s logic in coming to a decision.
As a New Jersey restraining order attorney, I know that sometimes people do not abide by the final restraining orders entered against them. Conversely, the lawyers at my law firms also have cases wherein people have to go to court to defend themselves against alleged violations of final restraining orders when they have not committed any violations. Such a circumstance can be complicated and costly, and that is why it is important to retain an attorney experienced with handling such matters. Actions that would not constitute a crime otherwise, but would constitute a violation of a domestic violence restraining order, are treated as criminal disorderly persons offenses, and are prosecuted in Family Part court without indictment. Because violating a restraining order is punishable as a criminal action, a defendant in a such a case is entitled all the rights criminal defendants are. That includes the presumption of innocence, and requirement for the State to prove, beyond a reasonable doubt, every single element of the alleged offense.
According to New Jersey Statute 2C:25-29(d), a final restraining order can be vacated or modified upon a showing of good cause. To determine good cause, the New Jersey Appellate Division adopted a list of factors for lawyers and judges alike in the 1998 case of Kanaszka v. Kunen, called the Carfagno factors, including: if the victim consents to having the final restraining order vacated; how fearful the victim of is of the defendant; the present day relationship of the litigants; the amount of contempt convictions for order violations; if the defendant abuses drugs or alcohol; if the defendant was involved in other violent altercations; if the defendant tried counseling; the defendant’s health and age; whether the victim is opposing the termination request in good faith; if any other restraining order has been entered against the defendant; and any other factors the court may deem relevant. The party requesting the final restraining order must meet the burden of proving a prima facie showing of good cause. Only after that will the court determine the existence of any disputes of material fact that necessitate a plenary hearing. The attorneys at my law firm are all experienced in the field of domestic violence and, like any good lawyer, we are sure to understand all New Jersey case law relevant to the case at hand.
Yes, if they are also “dating” that is. As a well-versed lawyer as to New Jersey’s Prevention of Domestic Violence Act, I am aware that only certain folks qualify to obtain a Final Restraining Order.One of the classifications that would allow a potential victim to be protected under New Jersey law is if a Family Part judge of the Superior Court of New Jersey finds that the parties had a “dating relationship.”As a result, New Jersey attorneys and judges are left to interpret what does and does not constitute a “dating relationship,” as the answer is not always as clear as one might think.For instance, say someone is paying an exotic dancer while she is work yet they spend significant time together on non-working hours.Is this a “dating relationship?”All told, while the lawyers must extract specific facts via testimony during a restraining order trial in order to prove their case, ultimately the court shall liberally interpret the “dating relationship” threshold.The following recent decision illustrates this legal issue.
Since 1996 the lawyers at our East Brunswick, New Jersey law firm have represented both victims and alleged perpetrators in domestic violence matters, specifically including restraining orders. Our lawyers are often asked what they should expect when we go to the Family Part of the Superior Court of New Jersey for the final restraining order (FRO) hearing.
First, It is important to understand that family court is not quite like we see in television or in movies. Some things are similar. Courtrooms in television and movies are often extremely large and look very formal and intimidating. While there is no denying that the court process is intimidating, just appearing in the court does not have to be. In most courtrooms, a Judge dressed in a black robe will be sitting on the bench, which is a slightly elevated large desk where the Judge and his clerk will be sitting. There will also be at least one Sherriff’s officer in the Courtroom. There are two tables each with two chairs in the front of the courtroom, one set for the victim and victim’s attorney and one set for the alleged perpetrator and respective attorney.
Yes. Under New Jersey’s Prevention of Domestic Violence Act repeated phone calls from an ex-girlfriend would place our lawyers in a position to successfully argue your case in the Family Part of the Superior Court of New Jersey. Specifically, the attorneys at our law firm would argue that you had every reason to be fearful for your (and in the case discussed below, your family’s) welfare and safety due to the ex-girlfriend’s harassing behavior. [Read more…]
No. For over the past twenty years as a divorce lawyer, I have been waiting for a decision from the Superior Court of New Jersey to confirm this “no brainer” decision. In a recent case, the parties agreed in their divorce agreement that they (and their respective attorneys) agreed to attend mediation to resolve any issues that may arise after the divorce has been concluded. Then, a final restraining order was issued. Therefore, the New Jersey Appellate decision determined to strike this clause of the original divorce agreement for obvious safety fears.
No. A Judge of the Superior Court of New Jersey is focused on the testimony elicited from you by your attorney. Simply put, New Jersey’s Prevention of Domestic Violence Act never prevents a potential victim from seeking protection only a restraining order may provide even if a prior temporary restraining order was resolved by way of a “civil” restraining order by your previous attorney.
In M.D. v. P.D., the parties were married in 1996 and had one child, a daughter, born of the marriage. The wife was born in Brazil and moved to the United States sometime in 2004. The wife works in Ocean County while the husband works at East Jersey State Prison for the New Jersey Department of Corrections. At some point, the wife moved out of the marital home and the parties separated. The husband filed for divorce after the separation.
As a restraining order trial attorney, knowing the facts of my case is essential. Moreover, another reason that you should have a savvy lawyer who only handles New Jersey family law and domestic violence related cases is the special civil procedure involved in a this type of trial. Specifically, I am aware that the alleged victim, when obtaining the temporary restraining order, has an opportunity to list any history of domestic violence between the parties. Therefore, if an alleged “victim” is testifying as to a “history of domestic violence,” that is not listed on the temporary restraining order, it is my job as a trial lawyer, on cross-examination, to ask, “why didn’t you list these alleged events when you completed the temporary retaining order form?” More times than not, I am able to successfully attack the credibility of this witness. The following case illustrates why a true victim of domestic violence in New Jersey should be very specific, even if there were not witnesses whatsoever. [Read more…]
It depends upon the facts. As restraining order lawyers at our East Brunswick, New Jersey law firm we have often made the argument while defending the defendant that the alleged victim is safe as the parties have no chance of contact in the future. Now, our attorneys understand that this can be a difficult argument to make as one judge may interpret New Jersey’s domestic violence laws differently as another. Moreover, it is safer for a judge to issue the final restraining order if the have any doubts as to the victim’s safety. Below is a case wherein New Jersey’s Appellate Division addressed this issue and overturned the trial court’s issuance of a final restraining order for this very reason.
In R.L. v. M.H., husband M.H. appealed from a final restraining order entered by the Superior Court of New Jersey, Family Part of Cape May County, dated October 8, 2015 that prohibited him from having any contact with R.L., his wife. On appeal, the New Jersey Appellate Division reversed the order and vacated the final restraining order because the record did not show that a final restraining order was necessary to protect the victim from further abuse, as per the second prong of the Silver analysis.