Text Messaging, Harassment and New Jersey’s Prevention of Domestic Violence Act
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.
First, people would send harassing or threatening emails to one another. Then texting and smartphones came into play and the game changed forever. By 2012 a survey discussed on the Today Show stated that over 90% of lawyers saw a dramatic increase in text messages being introduced as evidence in domestic violence trial. This recent case discusses how a judge of a New Jersey Family Court analyzes text messages during a restraining order trial ranging from the amount of messages, the time frame as well as the content.
In C.O. v. T.O., the parties were married and were divorcing. The New Jersey Appellate Division previously vacated a final restraining order entered by the Superior Court of New Jersey Family Part pursuant to the Prevention of Domestic Violence Act of 1990. The court supported the Family Part’s finding that T.O. committed a predicate act, which is an earlier crime or offense that is similar to the crime or offense being alleged. However, the Appellate Division sent the case back to the Family Part to be re-heard because there was no finding that a final restraining order was necessary to protect the victim from future harm or abuse. At the re-hearing by the Family Part, the judge heard testimony by the parties and reviewed the alleged predicate act. The judge reviewed the messages from T.O. to C.O., which constituted harassment under N.J.S.A. 2C:25-19(a), and found that the testimony revealed a combative relationship between the parties. The judge found that T.O.’s text messages established harassment and that a final restraining order was necessary to prevent C.O. from future harm because the parties’ divorce was going to be very hostile. The judge also found that T.O.’s conviction in March 2016 for violating the restraining order weighed in favor of supporting the need for the restraining order.
On appeal, T.O. argued that the Family Part judge’s finding that a final restraining order was necessary was not supported by evidence that existed at the time. Specifically, T.O. argued that the judge was wrong to consider the parties’ hostile divorce as a factor. Additionally, T.O. argued that C.O.’s fear was self-interested and contradicted by text messages she sent to T.O. and an alleged profanity used against T.O.’s girlfriend. The Appellate Division noted that it is bound by the Family Part’s factual findings when they are supported by reliable and credible evidence. The Appellate Division also noted that it defers to the Family Part’s determination of witness credibility.
The Appellate Division stated that the Family Part was required to make findings pursuant to the Silver v. Silver two-prong test. To satisfy the first prong of Silver, the court must find that T.O. committed a predicate act. Under the second prong, the court must find that a finally restraining order is necessary to protect C.O. from future harm. The Appellate Division stated that the Family Part judge did not base his decision that a final restraining order was necessary on C.O.’s fear, but that the messages T.O. sent constituted harassment. Additionally, the judge found that the final restraining order was necessary to protect C.O. from future harassment and harassing behavior from T.O. The Appellate Division noted that the Family Part judge based his decision on the fact that the parties’ relationship worsened and the judge felt the harassment would have continued to escalate. The Appellate Division agreed with the judge’s findings. Lastly, the Appellate Division agreed with the Family Part judge’s decision to consider the fact that T.O. had violated the restraining order as part of its decision to grant a final restraining order. The Appellate Division reasoned that the granting of the final restraining order was justified without considering T.O.’s violation; therefore, the Appellate Division affirmed the decision of the lower court.
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