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

In New Jersey, May My Lawyer Use A Violation Of A Temporary Retraining Order During A The Final Restraining Order Hearing?

Yes.  As a restraining order lawyer, I have represented many victims of domestic violence.  On that note, I always found it to be unfair that a violation of a temporary retraining order cannot be introduced as evidence by an attorney during a final hearing as an additional violation of New Jersey’s Act Against Domestic Violence.  In other words, the fact that the temporary retraining order, which certainly shows an heightened danger to a victim, could not be considered by a judge even after the lawyer attempts to have these vital facts introduced into evidence.  However, in 2015, the New Jersey legislature amended New Jersey’s domestic violence laws to allow for such essential evidence to be considered by a New Jersey Family Court judge during a final restraining order hearing.  

The lawyers at our law firm applaud this change as we always felt that it was unfair before the law was changed.  The following case illuminates the legal reasons for this amendment as well as how victims are now better protected.  

In D.S. v. B.C., the Honorable Judge Jones of the Superior Court of New Jersey, Family Part of Ocean County reviewed the application of the 2015 statutory amendment to the Prevention of Domestic Violence Act, New Jersey Statute 2C:25-17 to -35, which states that a knowing violation of a no contact provision in a restraining order is its own independent act of domestic violence. Judge Jones held that: (1) a knowing violation of a temporary restraining order satisfies the first part of the two part test enumerated in the 2006 Supreme Court case of Silver v. Silver; (2) the existence of two or more separate acts, even if those acts are not independently sufficient to the satisfy the two-part Silver test to enter a final restraining order, may satisfy the Silver test in the aggregate, and constitute a proper basis to enter a final restraining order. 

D.S. and B.C. dated for a number of years, and lived together at D.S.’s home. D.S. filed a domestic violence complaint on July 15, 2016, and sought a restraining order predicated on harassment. She alleged that B.C. was taking part in alarming and intimidating alcohol related conduct that was escalating with time. She outlined their past history of abuses, which included an incident where B.C. pushed her to the ground because “she was not moving quick enough.” This incident resulted in injury to D.S.’s face, hip, and shoulder. She also talked about another incident where B.C. was drunk, and punched the headboard of her bed, and another incident where he punched the wall so hard that fist practically went through the wall. 

D.S. told of another incident that happened around four years before she filed the domestic violence complaint. She alleged that they had previously broken up, and that she expressed to B.C. that she did not want to see him. Despite this fact, he still came outside her home at five in the morning, started screaming her name, and stuck a stick against her doorbell so that it would ring non-stop. The neighbors eventually called the police. She also described a pattern of harassment, in which B.C. would yell at her and humiliate her while under the influence of alcohol. 

More recently, on July 15, 2015, B.C. became enraged after drinking vodka and finding out that D.S. had removed some of his decorative harpoons from the wall. D.S. alleged that B.C. stated cursing and pounding his fist on top of the counter. She testified that she was alarmed and feared for her safety because of his past history. She then left the house and reported the incident to the police. After that she filed a domestic violence complaint for a restraining order. A municipal court judge entered a temporary restraining order that prohibited B.C. from having any contact with D.S., pending the final hearing that was scheduled for July 28, 2016. The police served B.C. with a copy of the temporary restraining order the very same day. 

Even after he was served with the restraining order, B.C. tried to contact D.S. twice, first on July 16, and then again on July 28. by directly texting her, in clear violation of the explicit no contact provisions of the temporary restraining order. In his first text, he told her that he had “no place to go” and that he was going to lose his job. In his second text he dubiously stated, “be careful tonight.” As a result, D.S. filed an amended complaint, and got the temporary restraining order amended to specifically include B.C.’s alleged knowing violations of the temporary restraining order as additional predicate acts of domestic violence, according to New Jersey Statute 2C:25-19(a)17). 

D.S. provided further testimony of the alleged harassment at the final hearing. She stated that she did not respond to the text messages, and that she did not know what B.C. intended when he sent the text stating “be careful tonight.” She did not want B.C. to contact her again, and wanted the court to enter a final restraining order.

Judge Jones explained that the Prevention of Domestic Violence Act is a remedial law, that is broadly construed to achieve its purpose. The law was intended to protect people’s right to be left alone. In the 2006 case of Silver v. Silver, the New Jersey Appellate Division held in determining whether or not to enter a final restraining order, a Family Part court must conduct a two-part analysis. First, the Family Part judge must determine whether the alleged victim has proven, by a preponderance of the evidence, that a predicate act of domestic violence has occurred. Next, the judge has to decide whether to provide protection for the victim with a final restraining order. In some cases, the second part is self-evident. Still the standard is if the restraining order is necessary to protect the victim. In analyzing any case of domestic violence, and determining if, under the totality of the circumstances, a final restraining order is appropriate, a perpetrator’s past history of violence is highly relevant. 

On August 20, 2015, the New Jersey Legislature amended the Prevention of Domestic Violence Act, and added new predicate acts of domestic violence. This amendment included a knowing violation of a restraining order as an independent predicate act. New Jersey Statute 2C:25-19(a)(17) provides that domestic violence now comprises “contempt of a domestic violence order pursuant to subsection b of N.J.S. 2C:29-9 that constitutes a crime or disorderly persons offense.” Judge Jones explained that this includes a knowing or intentional violation of the no contact provisions of a domestic violence restraining order that is already in place. This statutory language basically states that a knowing or intentional violation, even a non-violent violation, can be recognized as an independent act of domestic violence, sufficient to satisfy the first part of the two-part Silver test. 

With that said, the 2015 amendment to the Prevention of Domestic Violence Act, does not mean that every violation of a temporary order necessarily requires a final restraining order. Before entering a final restraining order, a Family Part judge must still conduct an appropriate fact finding analysis under the two prongs of the Silver analysis. While a knowing violation of a restraining order may satisfy the first prong of the Silver test, the second part must also be satisfied before a final restraining order can be entered.

In this case, Judge Jones found the testimony of D.S. to be credible, and that she genuinely appeared fearful and upset during the course of the proceeding. He further found that B.C. knowingly violated the no-contact provisions of the restraining order twice, both times only a short period of time after being served with the temporary restraining order. Moreover, the ambiguous content of one of the text messages, “be careful,” might reasonably be understood as threatening, especially since the message was sent against the backdrop of an existing temporary restraining order restricting him from doing so. Judge Jones stated, that even if B.C. did not intend to be threatening, he should have never sent that communication in the first place. The court also found D.S.’s testimony that B.C. would drink in excess, verbally berate her, and pounded furniture to the point of alarming her. As such Judge Jones found it appropriate for the Family Part to consider these incidents in the aggregate, and held that a final restraining order was reasonably necessary to protect D.S.’s safety, welfare, and health.

If you are dealing with domestic violence and a restraining order, please contact our law firm today.