May I Record Conversations In Order To Protect Myself From Acts of Domestic Violence In New Jersey?

            Yes.  As long as one party to the conversation (in this case the victim) knows that it is being recorded, then it is legal to do so.  In turn, you lawyer may use this evidence in a final restraining order hearing.  This case breaks down how a judge of the Family Part of the Superior Court of New Jersey analyzes New Jersey’s Prevention of Domestic Violence Act.          

D.S. and L.S.  In November 2016, M.L.S.’s sister, K.L.S., and K.L.S.’s baby were also staying at M.L.S.’s parents’ home.  On November 14, 2016, A.M.S. began staying with her mother to help her mother get her affairs in order.  On November 21, 2016, A.M.S. returned to M.L.S.’s parents’ home to pick up some personal things and some clothing.  When she returned to M.L.S.’s parents’ home, the whole family was home and an argument broke out between A.M.S. and M.L.S and his family.  When A.M.S. decided to leave the home, M.L.S. grabbed A.M.S. by the ankle, which caused her to fall down the stairs.  M.L.S. then tried to pull A.M.S. back by yanking her across the floor.  A.M.S. had bruised knees and a broken big toenail from M.L.S.’s actions.  While this was happening, M.L.S.’s sister, K.L.S., tried to pull A.M.S.’s necklace off, as well as tried to rip A.M.S.’s engagement ring off her finger, which resulted in a scratch on A.M.S.’s finger.  K.L.S. also pulled A.M.S.’s hair. 

            The New Jersey Superior Court Family Part found that M.L.S.’s actions against A.M.S. constituted assault.  The trial court also found that K.L.S.’s actions against A.M.S. constituted assault.  The trial court then determined that A.M.S. was in need of protection from future harm from both M.L.S. and K.L.S.  During this time, A.M.S. filed for divorce from M.L.S., and the court reasoned both M.L.S. and K.L.S. showed serious anger toward A.M.S. during the assaults.  The court also stated that a telephone conversation after the assaults recorded M.L.S.’s mother telling A.M.S. that she needed to learn how to handle M.L.S.’s anger.  Although there was no indication of a prior history of violence, the trial court determined that M.L.S. had previously demonstrated controlling behavior toward A.M.S.  The court then entered a final restraining order against both M.L.S. and K.L.S.  The court also awarded A.M.S. temporary money and assistance to help her relocate from the marital home, as well as attorney’s fees. 

            On appeal, M.L.S. and K.L.S. argued that the trial court’s decision was not supported by credible and adequate evidence and that A.M.S.’s real motive for filing for a restraining order was to gain an advantage over M.L.S. in the divorce proceedings.  The New Jersey Appellate Division stated that when determining whether to grant a final restraining order, the court must apply the two-factor Silver test.  First, the court must determine if a predicate act occurred.  A predicate act is an earlier crime or offense that is similar to the crime or offense being alleged.  Under the Prevention of Domestic Violence Act, some predicate acts include assault, harassment, terroristic threats, and criminal mischief.  If the court decides that a predicate act occurred, it must then determine if a final restraining order is necessary to protect the victim from future harm or abuse.  In order the make that determination, the court should look to the previous history of domestic violence between the parties, the financial circumstances of the parties, the best interest of the person seeking the restraining order, whether the victim is in immediate danger, if a restraining order is in place in another jurisdiction, and custody and parenting time of any children involved. 

            The Appellate Division noted that it is bound by the decision of the trial court if the trial court’s decision was supported by credible and substantial evidence.  Furthermore, the Appellate Division must refer to the trial court’s factual findings because of the trial court’s expertise in family related matters.  Also, the court should give the trial court deference when the evidence involves mostly testimony and questions of credibility need to be decided. 

            The Appellate Division stated that the trial court judge heard testimony from numerous people as well as reviewed photos of A.M.S.’s injuries and listened to the recorded telephone conversation.  The Appellate Division also stated that the trial court judge considered M.L.S. and K.L.S’s account of the events of November 21, 2016.  Ultimately, the Appellate Division found that M.L.S. and K.L.S.’s arguments were not sufficient to overturn the trial court’s decision.  The Appellate Division stated that the trial court’s decision was based on substantial and credible evidence.  Also, the Appellate Division found there was plenty of evidence indicating that the assault on November 21, 2016 occurred and that A.M.S. is in need of further protection from M.L.S. and K.L.S.  Therefore, the Appellate Division affirmed the decision of the trial court.