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

May A Final Restraining Order Be Entered In New Jersey Without Going To Court?

            No.  You still must appear with your attorney to the Family Part of the Superior Court of New Jersey.  This is because a judge must always take testimony of the accused (or defendant) that demonstrates that an act of domestic violence occurred on their part.   Therefore, you would be testify that the only way to protect the plaintiff would be to have a Final Restraining Order issued against you.  This is one of many reasons that you should have an experienced New Jersey lawyer with you at the Family Court so you are properly protected.  The lawyers at our law firm are all experienced in New Jersey’s laws regarding the prevention of domestic violence and we are prepared to protect you.  The following is this attorney’s analysis of a recent case that explains this area of N.J. domestic violence law. 

            In J.S. v. D.S., the New Jersey Appellate Division reviewed a case where both parties voluntarily agreed to the entry of a final restraining order. D.S. argued that the final restraining order was void because the Superior Court of New Jersey, Family Part of Atlantic County did not find that an act of domestic violence ever happened, did not take testimony, or concluded that the Final Restraining Order was necessary to protect the plaintiff from further abuse. The New Jersey Appellate Division held that notwithstanding the parties’ agreement to allow the final restraining order to be entered, justice demanded a certain procedure to be followed and vacated it.

            J.S. filed a domestic violence complaint under New Jersey Statute 2C:25-17 to -35, the Prevention of Domestic Violence Act, and got a temporary restraining order against her husband D.S. At the final restraining order hearing, the parties told the judge that they had reached a settlement agreement in which D.S. agreed to consent to the final restraining order in exchange for J.S.’s permitting him to have sole possession of the marital home pending future order from the divorce proceedings.

            After the parties were sworn in, the judge asked them if they both understood and voluntarily consented to the agreement. The judge never asked J.S. to describe the alleged act of domestic violence, nor did he ask D.S. to acknowledge that he committed an act of domestic violence. Being satisfied that the agreement was reached voluntarily, the judge entered the final restraining order.

            D.S. filed a timely appeal, and argued that the judge incorrectly entered the final restraining order without first taking testimony regarding the allegations, without actually finding an act of domestic violence actually happened, and without determining that J.S. needed the final restraining order to protect her from future acts of domestic violence.

            Before the date for the scheduled oral argument at the New Jersey Appellate Division, both parties submitted a stipulation of dismissal. However, because of the issues raised in the appeal, the appellate panel requested more details about the settlement agreement, to which the lawyers for the parties advised the appellate panel that the former couple had resolved their marital disputes and D.S. gave consent to dismiss the current appeal and allow a final restraining order to remain in full effect. The New Jersey Appellate Division responded by alerting the former couple about their concern about leaving the final restraining order in effect without considering the argument. The appellate panel told the parties that they could file a motion and argue why they should dismiss the appeal without ruling on the merits by October 28, 2016, after which time, if the motions were not filed the appellate panel could consider ruling on the appeal’s merits. Both parties failed to file a motion.

            The New Jersey Appellate Division explained that they do not lightly disregard a private party's request to stop litigating their issues. The settlement of litigation is quite a high priority in this state’s public policy. However, as held in 2016 New Jersey Appellate Division case of A.M.C. v. P.B., the court has an independent duty to remedy any systematic failures in the implementation of the Prevention of Domestic Violence Act. In other words, in domestic violence cases, judges are more than just a referee.

            It is not exactly rare for domestic violence victims to request dismissal of their complaints either before or after a final restraining order is entered. In such circumstances, the Prevention of Domestic Act requires a Family Part court to analyze a victim’s reasons for requesting dismissal. This is done be conducting a searching inquiry into whether the victim understands what the consequences of dismissing the action will be. This is done to ascertain if, among other things, if the victim is freely and knowingly seeking dismissal. A big part of this analysis is for the court to make sure that the requested dismissal is not for an impermissible exchange of promises. Section 4.19.7 of the Domestic Violence Manuel prohibits conditional dismissals, or in other words a dismissal that is conditioned on “either party performing any specific act or upon the occurrence of any particular event, regardless of any agreement reached between the parties. This state’s public policy precludes the entry, continuation, or dismissal of a final restraining order as a bargaining tool in the settlement of other disputes. As such, appellate courts are suspicious of settlements in such issues.

            Furthermore, the New Jersey Appellate Division stated that Prevention of Domestic Violence Act imposes considerable responsibilities on law enforcement. Therefore, a final restraining order cannot be used as a mere injunction entered in favor of one private party against another. When a final restraining order is violated, it usually triggers the involvement of law enforcement, and could even potentially lead to criminal prosecution. Moreover, entering a final restraining order imposes continuing obligations on the Court. The Prevention of Domestic Violence Act, N.J.S.A 2C:25-34 requires the Court to “establish and maintain a central registry of all persons who have had domestic violence restraining orders entered against them. The potential of future involvement of law enforcement, prosecutors, lawyers, and the judiciary in domestic violence cases makes the court cautious against entering groundless final restraining orders.

            For all the aforementioned reasons the New Jersey Appellate Division felt compelled in this unusual case to ignore the parties settlement agreement and stipulation of dismissal. Appellate courts have the sound discretion to dismiss an appeal.  The appellate panel cited Rule 2:8-2 that states that upon the filing of a stipulation of dismissal, the court may - not must- dismiss the appeal. Therefore, they were not required to dismiss the current appeal. Because of the strong public policy underlying the Prevention of Domestic Violence Act, the New Jersey Appellate Division choose to exercise their discretion and consider the merits of the appeal. The judiciary has a duty to make sure that the final restraining order was entered legitimately, and cannot permit a inappropriate final restraining order merely because it could be used as an advantageous bargaining chip in the settlement of the former couple’s divorce.

            On appeal, D.S. argued that the judge incorrectly entered the final restraining order without first taking testimony regarding the allegations, without actually finding an act of domestic violence actually happened, and without determining that J.S. needed the final restraining order to protect her from future acts of domestic violence.  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 to prevent further abuse.

            In J.S. v. D.S., the trial judge entered the final restraining order without conducting either part of the Silver analysis. As such, the New Jersey Appellate Division found that the final restraining order could not remain in place. A final restraining order entered under the Prevention of Domestic Violence Act cannot be entered with mere consent or without a factual basis. Therefore the final restraining order was dismissed, and the issue was remanded for a final hearing.