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

In A N.J. Final Restraining Order, What Is A “Risk Assessment?”

In New Jersey, any lawyer who focuses on domestic violence cases understands that a Final Restraining Order is quite powerful. First and foremost, the defendant is banned from any and all contact with the victim. Furthermore, if a judge of the Superior Court of New Jersey, Family Part, determines that a Final Restraining Order is appropriate, they may then order a Risk Assessment. A risk assessment calculates any possible risks that a child may when they are in the defendant’s custody. Pending the risk assessment, the court may either suspend or order supervised parenting time until the results of the risk assessment are produced to both the court as well as the attorneys. The following case is paramount with respect to the foregoing.

In Cosme v. Figueroa, mother Anna Cosme, filed a domestic violence complaint against her child’s father, Daniel Figueroa. She alleged that the assaulted her when he arrived for a scheduled visitation with their child. Anna requested that Daniel’s visitation be terminated pending a risk assessment evaluation. The parents had a history of domestic violence. Before the dispute in court, the parties lived together and parented with a child. On May 11, 1992 Anna filed a domestic violence complaint and alleged that Daniel assaulted her when he went to pick up the parties’ child from a scheduled visitation. As per her ex parte testimony in court, the court issued a temporary restraining order which prohibited any contact between the Anna and Daniel, along with suspending Daniel’s visitation until the date of the final hearing, May 20, 1992. There would have been one overnight visitation of 46 hours during this time period.

There was a history of litigation between the parties. On April 20, 1992, Daniel filed a complaint seeking visitation with the parties’ child, also named Daniel, born January 1, 1990. On April 28, 1992, Anna responded by filing a domestic violence complaint which alleged terroristic threats, assault and harassment by Daniel. As per Anna’s prior complaint a temporary restraining order was issued on April 28, 1992. But on the return date, Anna, after executing the appropriate affidavit, and appearing before, withdrew the complaint and dismissed the case. On April 29, 1992, a visitation consent order was entered in which Anna and Daniel agreed that Daniel would have overnight visitation on weekends from Friday 8:00 pm through Sunday 6:00 pm. The contact between the parties on Sunday at 6:00 pm is what gave rise to the instant complaint.

During the final hearing of this case both parties appeared. Anna testified that while she was picking up the child on May 10, 1992, she and Daniel became involved in an altercation. She further testified that when Daniel struck her, their one year old child was in her arms. While Daniel admitted that he in fact assaulted Anna by pushing her, he still claimed that the baby was not in her arms at the time. Anna further testified that she and Daniel had lived together prior to the start of litigation. In addition, she also stated that during cohabitation Daniel was employed and she was receiving welfare and that the welfare money was used to furnish her apartment. Daniel denies that the welfare grant was used in this manner, but instead testified that he purchased various household items, and sought possession of those items at the trial.

Based on Anna’s undisputed testimony, the Superior Court of New Jersey, Family Part, Hudson County, found that Daniel did assault Anna on April 29, 1992 and thus informed a final restraining order. The final order contained the standard restraints as well as supervised visitation and a support order adopted from the prior consent order of the court. Also, a risk assessment and domestic violence counseling for anger management of Daniel was also ordered. The major issues determined by this domestic violence case are: (1) which party bears the burden of proof on a request for a risk assessment; (2) upon what standard of proof is the request found to be or not be arbitrary or capricious; and (3) may visitation be terminated pending the results of an ordered risk assessment.

First, the court had to determine the correctness of ordering a risk assessment. The authority to order the same arises from the Prevention of Domestic Violence Act of 1990. According to the act, the court shall consider a request by a plaintiff for an investigation or evaluation by the appropriate agency to assess the risk of harm to the child prior to the entry of a visitation order. Any denial of such a request must be on the record and shall only be made if the judge finds the request to be arbitrary or capricious. The New Jersey Appellate Division stated that the plain language of the statute clearly mandated that the court must consider a risk assessment on any request by a plaintiff. However, the court was left to decide the question of upon what showing does the court grant or deny the request? Specifically, which party is responsible for providing or disproving that the request is arbitrary or capricious, and what standard of evidence will satisfy the court for such a finding?

The text of a statute rarely provides the allocation of the burden of proof. As it is a procedural matter it is commonly left to the courts to decide. The party asserting the claim, generally, has the burden to prove it. The burden of establishing the existence of a fact or circumstance, necessary to support the claim, is on the party relying on the same. Therefore, in Family Part cases, the party seeking visitation has the burden of providing a right to visitation. Similarly, the burden for modifying a child custody decree or alimony award is upon the party requesting such a modification. Regardless, the courts have occasionally placed the burden of proof on the non-claiming party for policy considerations.

In Cosme v. Figueroa, the plaintiff, Anna, was the one making a claim for court action, and it is Anna that is relying upon the judge’s finding to be awarded the risk assessment. Therefore, applying the general rule, it would seem that is Anna who has the burden to show the request is not arbitrary or capricious. However, the negative presentation of the standard, that a denial shall be issued only upon a finding that the request is arbitrary or capricious, suggests that it is the defendant’s burden to carry. Furthermore, it has been the policy of New Jersey’s courts that the protection of minor children is the main concern in custody and visitation determinations. Additionally, the Prevention of Domestic Violence Act of 1990 recognizes this policy in citing the “positive correlation between spousal abuse and child abuse, and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence.” Finally, since the risk assessment does not unduly prejudice the interest of either party and may be an extremely helpful tool in determining visitation issues, the New Jersey Appellate Division concluded and held that a requested risk assessment should be ordered unless the defendant can show that the request is arbitrary and capricious. This way the child is further removed from the controversy between the parents and cannot be used as a tool by either parent to extract some form of retribution against the other.

The Superior Court of Hudson County also found that because this determination involves not only the adult parents, but also the well-being of a minor child, the minimum standard of proof is indicated. The court made sure to mention that if there was no minor child involved here, the court may have considered the motion arbitrary and capricious.

Anna, as part of her domestic violence complaint, requested that Daniel’s visitation should be terminated pending the evaluation by risk assessment. Based on the facts of the case, the Superior Court of Hudson County refused to order such a drastic action. The suspension of visitation is the least restrictive approach only in the most extreme situations where the mere presence of the parent would impart physical or emotional harm upon the child. In all other cases suspension of visitation is improper, and supervised visitation should be ordered. Because of the appellate panel’s finding of domestic violence, and in accordance with the above stated analysis, the Superior Court of Hudson County held that Daniel failed to show by the preponderance of the evidence that Anna’s request for a risk assessment was arbitrary and capricious. Thus, Daniel was restrained from future acts of domestic violence and prohibited from having contact with Anna. The appellate panel gave exclusive possession of the parties shared residence and custody of their child. Daniel was ordered to receive domestic violence counseling, and a risk assessment was ordered and Daniel was granted supervised visitation pending the outcome of that evaluation.

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