Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

How Important Is a History Of Domestic Violence When Seeking A Final Restraining Order?

Very important.  It is imperative that your lawyer demonstrates to a judge of a New Jersey Family Court that, along with domestic violence being proven on the date in question, your attorney should also prove a history of domestic violence.  As per New Jersey law, the court must also consider previous acts of domestic violence by the defendant against the victim when deciding whether a final restraining order is necessary in order to protect the victim. 

            In A.M.C. v. P.B., the New Jersey Appellate Division reviewed whether the Family Part committed error by denying wife A.M.C a final restraining order against her husband, under the Prevention of Domestic Violence Act, New Jersey statute 2C:25-17 to -35, despite the fact that the court found that her husband, who happened to be employed as a police officer, physically assaulted her two different times over a three-week time period. The Family Part judge had applied the two part test enumerated in the 2006 New Jersey Supreme Court case of Silver v. Silver.,  and found that it was not necessary to enter a final restraining order to protect A.M.C from future threats or acts of violence because A.M.C did not meet her burden to establish that even a mere likelihood that the litigants would still interact in the future, or that her P.B. was a threat to her. The New Jersey Appellate Division did not agree and reversed the order of the Family Part.

            The New Jersey Appellate held that the Family Part incorrectly applied the two part standard enumerated in in Silver, because the court failed to adequately consider:  (1) the intrinsically violent manner of the predicate acts of domestic violence P.B. committed against A.M.C. over a period of three-weeks; (2) that P.B. physically assaulted A.M.C to try to get her to stay at the marital home instead of seeking relief at a women’s shelter; (3) the history of domestic violence between the former couple, that included both violent acts and threats of future violence. The New Jersey Appellate Division stated that under the circumstances, it was necessary to enter a final restraining order to protect her from future abuse.

            P.B. worked as Police officer in the City of Newark. On June 9, 2015 A.M.C. left her marital home located in Newark and found safety at a women’s shelter located in Middlesex County. She attained legal representation with Central Jersey Legal Services, filed a complaint domestic violence complaint with the Family Part court of Middlesex County. She alleged that P.B., a Newark Police Officer perpetrated acts of domestic violence against her by terroristic threats, sexual assault, physical assault, and harassment.

            The Family Part count and awarded her a temporary restraining order that restricted P.B. from communicating with her, prohibiting him from possessing firearms, and ordered law enforcement  to search and seize any permit issued that allowed him to carry a firearm. As required by New Jersey Statute 2C:25-28(1), the order directed law enforcement, including the Newark Police Department, to serve P.B with a copy of the complaint and temporary restraining order. An evidentiary hearing was scheduled for June 18, 2015 to decide if a final restraining order was warranted.

            At the hearing, A.M.C testified that she permanently left the marital home on June 9, 2015 due to her husband's abusive behavior. She provided evidence of this abuse through photographs that showed the discolorations and bruises that P.B. inflicted on her arm. She claimed that she took these photographs right after getting into a taxi, no more than three minutes after leaving the house. She also testified about an altercation that happened June 7, 2015, two days after she fled the marital home. She alleged that P.B. threw two lamps at her to try and start a fight. However, the Family Part rejected A.M.C.’s account of this event and characterized her account as not credible. Instead the judge chose to accept P.B.’s testimony that he was playing golf that day.  P.B.’s testimony was backed up by his mother, who lived in the house, and by the receipts of the golf trip.

            The Family Part Judge did find that there was sufficient competent evidence to support the second incident of domestic violence that happened three weeks before June 9, 2015. A.M.C testified that P.B. was incredibly upset about something posted on an Instagram account, and that he tried to choke her by squeezing her neck with incredible force. He further grabbed her arm that caused visible red bruises. These photographs were admitted into evidence by the court. A.M.C. stated on the record that these violent outbursts had caused her both physical pain and fear.

            Conversely, P.B. testified that he never physically hurt or assaulted his wife. He called his mother in as a witness who corroborated his story. In relating to June 9, 2015, P.B. testified that he merely spoke to A.M.C. when he saw her leaving the house with the suitcases, but never physically assaulted her or stopped her from leaving.

            The Family Part judge made specific findings that P.B. committed the predicate act of simple assault June 9, 2015, and three weeks earlier. According to New Jersey Statute 2C:12-1(a)(1), someone is guilty of simple assault if that person “attempts to cause or purposely, knowingly or recklessly causes bodily injury to another.” Bodily injury is defined by New Jersey Statute 2C:11-1(a) as “physical pain, illness or any impairment of physical condition.” The Family Part judge noted the photos submitted to evidence immediately after the incident on June 9, 2015 that depicted red marks on A.M.C.’s left arm. The judge stated that these photographs were consistent with A.M.C. vacating the marital house on June 9th, and getting into a taxi.

            The judge also recognized that the two parties had conflicting testimony in relation to these two altercations. Having to deal with this inconsistency, the judge stated that if not for the photographic evidence he would probably not have found that an act of assault had occurred. Next, the judge turned to the question of whether a final restraining order was warranted. The Family Part judge reasoned that P.B. was not properly served with the complaint and temporary restraining order by law enforcement authorities. Furthermore, the judge thought that P.B. did not have any desire to continue his association with A.M.C., because he did not call or try to communicate with her after she left the house. The judge also stated that the parties did not have any children together, and therefore, they would not have to continue interacting as parents. Also, the judge emphasized that he found both parties’ testimony as equally credible. Only the photographs tipped the scales in A.M.C.’s favor.

            Next, the trial judge explained why he decided not to enter a final restraining order. He recognized that the court need to consider the past history of domestic violence between the couple and stated that their marriage had only lasted for less than a year, and that the unproven claims of domestic violence in the complaint indicated that P.B. began abusing her two months into the marriage in December 2014. As such, the judge reasoned that the unreported allegations of domestic violence brought before the court were most if not all of the history of domestic violence between the parties, and the judge had found these incidents, except for two, as not credible. Therefore, because of the short nature of the marriage, and that A.M.C was only able to substantiate two incidents of domestic violence, the best interest of the victim did not deter the Family Part from finding that a final restraining order was not necessary to protect A.M.C from future acts or threats of violence. A.M.C appealed.

            In her appeal, A.M.C. argued that the Family Part judge incorrectly applied the two part Silver test.  A.M.C claimed that the Family Part judge failed to adequately consider the history of domestic violence between the parties, including not just the physical acts of violence, but also his threats that he could hurt her “whenever he feels like it.” She further argued that the fact that she fled the marital home, and took refuge in a women’s shelter proved that she was in real fear of immediate danger. According to Silver, a judge at a final restraining order hearing must: (1) determine in 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 (2) then must determine if a final restraining order is necessary to protect the victim.

The Family Part had found that P.B., a police officer, physically assaulted his wife two different times. Physical assault is a predicate act of domestic violence enumerated in New Jersey Statute 2C:25-19(a). New Jersey Family Part courts may analyze two factors when deciding whether or not to issue a permanent restraining order: the lack of proof showing a history of abuse or domestic violence; and when the predicate act is not an act of physical violence. In A.M.C v. P.B., the Family Part judge decided not to issue a final restraining order because the former couple did not have any children, and so the judge believed there was no chance of future interaction between the parties. The New Jersey Appellate Division did not agree.

The New Jersey Legislature enacted the Prevention of Domestic Violence Act with the intention “to assure the maximum protection from abuse to victims of domestic violence, that the law can provide. The appellate panel explained that it did not matter that A.M.C. did not have any children with P.B. did not affect her right to a final restraining order under the second part of the Silver analysis. Similarly, the appellate panel also found that the Family Part judge’s consideration of P.B.’s conduct after A.M.C. left the marital home, and the fact that the marriage only lasted for a short period was erroneous, and such considerations are not relevant in deciding whether a final restraining order is necessary to protect the victim under the second part of the Silver analysis. Furthermore, the Family Part judge minimized the physical assault, which was a principal concern that drove the analysis in Silver. The New Jersey Appellate Division stated that in a situation where the predicate act of domestic violence is the use of violence and physical force, the need to issue a final restraining is “self evident.”

Applying a Silver analysis in conjunction with the relevant evidence, the New Jersey Appellate Division held that A.M.C. was entitled to a final restraining order as a matter of law, because of P.B.’s past history of domestic violence, that included threats of violence and actual physical violence; A.M.C.’s decision to flee the marital home, and P.B.’s physical acts to stop her from leaving; and that due to the specific facts of the case, a final restraining order was in the victim’s best interest.

 My contact our law firm if you or a loved one is facing a domestic violence situation.