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

When Obtaining A Temporary Restraining Order, Be Sure To List Any History Of Domestic Violence

As a restraining order trial attorney, knowing the facts of my case is essential.  Moreover, another reason that you should have a savvy lawyer who only handles New Jersey family law and domestic violence related cases is the special civil procedure involved in a this type of trial.  Specifically, I am aware that the alleged victim, when obtaining the temporary restraining order, has an opportunity to list any history of domestic violence between the parties.  Therefore, if an alleged “victim” is testifying as to a “history of domestic violence,” that is not listed on the temporary restraining order, it is my job as a trial lawyer, on cross-examination, to ask, “why didn’t you list these alleged events when you completed the temporary retaining order form?”  More times than not, I am able to successfully attack the credibility of this witness.  The following case illustrates why a true victim of domestic violence in New Jersey should be very specific, even if there were not witnesses whatsoever.  

In M.K. v. A.K., ex-wife A.K. appealed from a final restraining order entered against her under the Prevention of Domestic Violence, New Jersey Statute 2C:25-17 to -35. Because the New Jersey Appellate Division found that the ex-husband was allowed to testify extensively about past history not included in the complaint, in violation of A.K.’s due process rights, which history the court relied on to provide context for the threat that the predicate act was based on, they had no choice but to reverse the restraining order and remand for a new trial.

This issue was born out of a particularly ugly post-judgment custody dispute. While A.K. was awarded primary residential custody of the two children, ages eight and ten at the time of the divorce, seven months later M.K. sought and received temporary residential custody, and A.K.’s time with the children was ordered to be supervised. In his domestic violence complaint, M.K. alleged that A.K. threatened to kill him during one of these supervised visits. Specifically, the complaint stated that during a supervised visit at a therapist’s office between his children and ex-wife, A.K. entered the waiting room area where M.K. was sitting. During that time, she leaned over and whispered to M.K., “I’m gonna fucking kill you.” Because one of the children were in the room he chose not to reply. About five minutes later, A.K. once again repeated in a low voice, “I’m gonna fuckin kill you.” She then left the building while M.K. waited for his other child to finish her therapy session. At the hearing, M.K.’s lawyer began the direct examination of her client by asking the court to allow her to elicit “a little background information in order to set the stage for the incident in question, because . . . this has been a very unusual and very sad divorce.” M.K.’s lawyer further explained that she was “not amending the complaint as adding to a predicate acts, but just giving the court a little frame of reference because [she] [thought] it was important for [the court] to understand how we arrive at where we are today. She then proceeded to question M.K. about the history of the post-divorce custody dispute. She had M.K. read portions of orders in which the court explained its reasons for temporarily shifting custody from A.K. to M.K, and supervising A.K.’s parenting time, into the factual record. She also asked M.K. to identify and explain numerous emails A.K. sent to him and others, including public officials. In these emails she accused him of psychologically abusing the children and stated her belief that her responsibilities to the health and safety of the children “trump[s] order.”

M.K.’s attorney finished her line of questioning by asking him to read from A.K. into the record. In the email, A.K. stated, “You lie, you run away, you hide, you are careless, you are insanely abusive, you are killing children. What you are doing is criminal, the consequences will be severe.” When the judge asked M.K. how the email made him feel, he responded, “Fear. Fear. When you combine her belief that I am doing these things, is she is truly of this mindset, it started as the allegation that I’m abusive, which is not true.” After hearing the question and answer, the judge told M.K.’s attorney that she was “getting deeply into what would be considered as prior history of domestic violence, which is not listed in the complaint.” The judge stated that this was more than general background information, and directed counsel to “move on.”

The attorney moved on to an order entered a week before the incident that gave rise to the complaint, that found A.K. guilty of violating the order for supervised parenting time. Again the court expressed concern about the direction of the testimony. M.K.’s attorney responded by acknowledging that while the “general background” information presented was extensive, she presented it because “the predicate act is one confined act that could be used differently, if it hasn’t had the history that preceded the history in this case.” At the end of the two-day hearing, the court issued a final restraining order. 

New Jersey Statute 2C:12-3(b) defines third-degree terroristic threats as when a person threatens to kill another with the intent to put that person in imminent fear of death under circumstances reasonably causing the victim to believe that the threat is immediate and it is likely to be carried out. The Family Part found that M.K. had proved all three elements by a preponderance of the evidence. The judge noted that the cased came down to credibility, and that the backdrop of the case had a great deal to do with assessing credibility and analyzing motive. 

On appeal A.K. argued that the Family Part court improperly admitted evidence of prior domestic violence not mentioned in the complaint. The New Jersey Appellate Division began its opinion by acknowledging that this was a difficult case. While noting that the trial judge was “patient, knowledgeable about the law and conscientious in rendering judgment,” the appellate panel still concluded that M.K.’s extensive testimony regarding  the prior history between the couple, which was not mentioned at all in the complaint and which the trial court found so critical to giving context and meaning to A.K.’s words deprived her of due process and requires a reversal of the final restraining order. 

The New Jersey Appellate Division acknowledged that the court was required to hear and consider the past history of abuse between the parties. The Prevention of Domestic Violence Act requires that alleged acts of domestic violence must be evaluated in light of the previous history between the parties. Furthermore, even though proof of terroristic threats is measured by an objective standard, the Supreme Court has held that in domestic violence cases a court should consider any past history of abuse as part of the victim’s reasonable person determination. The past history of abuse was vital in this case. Nevertheless, this history cannot be admitted in violation of the opposing party’s due process rights to receive notice defining the issues and be given adequate opportunity to prepare and respond. There is nothing wrong with allowing a full exploration of prior history of domestic violence. All that is required is that if a court recognizes that if it allows that history to be expanded, then there must be an amendment to the complaint. That was not done in M.K. v. A.K.. Rather, in the façade of providing “a little background information,” M.K. was allowed to testify at length about an escalating course of conduct, which the court found included threats and harassment constituting domestic violence, not included in the complaint. This was not fair to A.K. because it deprived her of her right to notice and to a fair opportunity to defend herself against M.K.’s claim. Therefore, the New Jersey Appellate Division reversed the restraining order and remanded the case back to the Family Part for a new hearing. 

Please reach out to my law firm if you are facing a final restraining order trial to learn how we may be able to assist you.