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.

R.L. and M.H. got married on October 23, 2011. Unfortunately, the marriage was not meant to be and the parties filed for divorce. During the divorce litigation, R.L. went to the marital home on September 16, 2015 to pick up some of her personal things. R.L. and M.H. both agreed that R.L. would go to the house on that day. However, M.H. tried to cancel the day before. R.L. went to the marital home anyway, as she had made plans for family members in addition to police to help her move out. M.H. testified that he did not know that she would be coming that day. R.L. was escorted to the house with two North Wildwood police officers, in addition to her stepfather and a friend who stayed outside the house while R.L. and the police officers were inside. M.H. tried to stop R.L. from entering, but one of the police officers told him that R.L. had a right to enter the property.

Both M.H. and R.L. have a different story of what actually happened when R.L. went inside. R.L. stated that when she went inside she started packing her personal belongings into containers when M.H. grabber her clothes, threw them on the floor, and started yelling that all the items were his. She alleged that he grabbed her arm and started to yell at her stepfather and friend and threatened to file a complaint against them. R.L. characterized M.H. as “verbally aggressive”. She also stated that when she was holding her grandmother’s wicker basket filled her bed linens, M.H. started to grab it from her. She claimed that R.L. stood in doorways and blocker her from going into various rooms. Later that day, she noticed that she had a small cut on her leg and filed for a temporary restraining order. She contended that she needed the restraining order because of her husband’s unpredictability. Furthermore, she stated that her husband had previously coerced her into keeping her name on the lease for the marital home so that he could complete the process of getting a green card, even though at the time of the appeal, her name was no longer on the lease.

M.H. had a different version of event. He alleged that he had called the North Wildwood police and requested that they contact his wife and check if she could come in on a different day to pack up her personal things, and claimed that the police told him that R.L. was fine with that arrangement. However, R.L. still arrived on that originally scheduled day. M.H. maintained that his wife’s stepfather and friend started taking his possessions from the wall and front porch. He admitted that the wicker basket did indeed belong to R.L., but stated that it had his underwear and towels. He denied ever grabbing or harming his wife in any way, and explained that a professional mover later removed all of R.L.’s personal things from the marital home.

The Family Part judge had granted R.L.’s request for a final restraining order and found that M.H. had harassed her by blocking her access to the marital home, in addition to taking things from her hands and throwing them. However the judge failed to make any credibility findings. Also, the judge found that M.H. was guilty of assault because he grabbed R.L.’s arm. The judge commented that he had previous experiences with the former couple, and that this was the second or third time he had seen them. He stated that M.H.’s stubbornness and unwillingness and inability to let go was an extra reason to grant R.L.’s request for a final restraining order. The judge also granted a final judgment of divorce at the same hearing. M.H. appealed.

On appeal, M.H. argued that the evidence at trial was not sufficient to prove that he had violated one of the predicate acts of domestic violence enumerated in New Jersey Statute 2C:25-19a. The New Jersey Appellate Division agreed with M.H.

The New Jersey Appellate Division started their opinion by explaining that their review of a trial judge’s findings of fact are limited. A Family Part court’s findings will be binding on appeal as long as they are supported by adequate, substantial, and credible evidence. Such judicial deference to the Family Part is even more appropriate when the trial evidence is mostly testimonial and rests on the court’s ability to determine credibility. As such, the New Jersey Appellate Division will not disturb factual findings and the legal conclusions made by a Family Part judge unless they are clearly inconsistent with, or unsupported by the relevant, competent, and reasonably credible evidence that they offend justice. With that said, when it comes to questions of law, a Family Part judges findings are not given the save level of deference if they are based on a misunderstanding of applicable legal principles.

When a Family Part judge decides whether or not to enter a final restraining order under the Prevention of Domestic Violence Act, the judge has to conduct a Silver analysis and make two determinations. According to Silver, a judge at a final restraining order hearing must first determine that the victim has proved by a preponderance of the evidence, that the alleged abuser committed one or more of the predicate acts of domestic violence enumerated in New Jersey Statute 2C:25-19(a), and then must determine if a final restraining order is necessary to protect the victim from future acts or threats of domestic violence. This requires a finding that the relief of a final restraining order is needed protect the victim from immediate danger or to prevent further abuse.

The guiding standard as to whether a final restraining order is needed to prevent immediate danger or further abuse is enumerated in N.J.S.A. 2C:25-29(a)(1) to -(6), including an analysis of: the previous history of domestic violence; the existence of immediate danger to person or property; the financial situation of both parties; the best interests of the victim and any child; and if an order of protection from another jurisdiction exists.

According to New Jersey Statute 2C:33-4, harassment is defined as when a person: makes a communication anonymously or at inconvenient hours, in an offensive manner or any other manner likely to cause annoyance or alarm; strikes, kicks, shoves, or threatens to do so; engages in any other alarming conduct or repeatedly commits acts with the purpose to alarm or seriously annoy the other person; or commits a crime of the fourth degree, acting with ill will, hatred or bias, with a purpose to intimidate based on the other person’s race, color, religion, sexual orientation or ethnicity.

The appellate panel stated that the evidence did not establish that M.H. had harassed R.L. While their relationship was contentious, M.H.’s actions on the day R.L. came to pick up her things did not constitute harassment. The Family Part judge had made a conclusory determination of harassment that was not based on factual findings or a credibility determination.

Assault is defined as when a person: 1) tries to cause or knowingly, purposely, or recklessly causes bodily injury to another; or 2) negligently causes injury to another with deadly weapon; or 3) tries to put another in fear of imminent serious injury by physical intimidation. While the appellate panel stated that the facts might support that M.H. committed assault by grabbing his wife’s arm, which could satisfy the first prong of the Silver analysis, the panel found that a final restraining order was not necessary to protect R.L. from further abuse. The divorce had been finalized, all of her belongings were removed from the marital home, and her name was no longer on the lease. There was nothing in the factual record that showed there was a potential for contact between the parties, and as such the record did not support entering a final restraining order to protect R.L. from further abuse.