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Domestic Violence – Defending Final Restraining Orders

 

Domestic violence is a pervasive problem throughout the United States. The State of New Jersey is no exception to this ongoing dilemma. Accordingly, the Prevention of Domestic Violence Act (“the Act”) has been enacted and is intended to act as a shield for domestic violence victims. Unfortunately, there are times where matrimonial litigants instead attempt to utilize the Act as a sword, rather than a shield. This is an attempt to gain an unfair advantage in parallel divorce and/or custody proceedings.

Final Restraining Order

Once a Temporary Restraining Order (“TRO”) has been entered, full focus must turn to defending against the entry of a Final Restraining Order (“FRO”).  This is necessary to prevent a major setback to the divorce/custody litigation. Additionally, there are major implications for that individual. Since there are rarely instances where unequivocal proof exists that what the plaintiff/victim is saying is simply not true, it helps to be able to attack the plaintiff/victim’s case from a number of different angles.

Pursuant to established statutory and case law, in order to obtain the FRO, the plaintiff/victim, must satisfy a two-pronged test: (1) First, the plaintiff/victim must prove that one or more predicate acts, as set forth in the statute, has occurred. Predicate acts may include assault, harassment, or terroristic threats. (2) Second, the plaintiff/victim must prove that a restraining order is necessary to provide protection for and to avoid future abuse to the victim.

Possible Defenses

Whenever defending against the entry of the FRO there are several specific defenses that should be considered. These defenses may include:

  • The Predicate Act
  • The Necessity of the FRO
  • Domestic Contretemps
  • Divorce/Litigation Planning

The Predicate Act

The most common predicate act in TRO Complaints is harassment. So, I will use harassment as an example here. The legal definition of harassment is:

A person, with purpose to harass another, he/she:

  1. Communicates with that person either anonymously, at extremely inconvenient hours, or in offensively coarse language;
  2. Strikes, kicks, shoves, or offensively touches that person; or
  3. Engages in any other course of alarming conduct or repeatedly committed acts with purpose to alarm or seriously annoy that person. (emphasis added)

In order to commit harassment, the actor MUST act with purpose to harass another. Oftentimes the simplest way to defend against the claim of harassment is to provide the Court with an ulterior motive behind the Defendant’s words/actions. If there is no purpose, there is no predicate act.

Necessity of Final Restraining Order

In addition to the predicate act, the plaintiff/victim must also prove: (1) that he/she is fearful of the defendant; and (2) that there exists opportunity for domestic violence to continue/occur again without the entry of the FRO. An effective cross examination can counter the fear argument. So can the evidence presented in the case. For example, if the plaintiff/victim provides a video/audio recording, attempts should be made to show that the recording proves that he/she was never fearful of the defendant because he/she remained calm, refused to leave, escalated the situation, or otherwise failed to demonstrate that the defendant’s words or actions had any impact upon them.

Domestic/Marital Contretemps

What are Domestic Contretemps or Marital Contretemps?  These are legal terms that describe ordinary arguments that occur between spouses or partners. This is oftentimes a successful defense to the claim of domestic violence, as the plaintiff/victim is simply trying to mislabel an otherwise routine argument as domestic violence. The Courts must strive to remain vigilant in separating domestic contretemps from domestic violence as the lines can sometimes blur, but the outcomes for each should remain distinguished. There is a plethora of established case law with regards to this defense. Accordingly, this is vital defense to consider when preparing the defendant’s case.

Divorce Planning

As referenced above, the Act can oftentimes be misused, despite its vital intended purpose. Accordingly, it is common to see divorce litigants file for TROs against their spouse/partner, in order to gain an advantage in various parallel proceedings. This is especially true at the onset of litigation because it is oftentimes seen by a litigant as a way to (a) remove their spouse/partner from the home, (b) remove their spouse/partner from custody of their child(ren), and/or (c) create an unfair first impression of their spouse/partner before the Court. Important things to consider include, but are not limited to, (1) the timing of filing of the Divorce Complaint, (2) the timing of filing of any TRO/Amended TRO Complaints, (3) the timing of the retention of counsel, (4) words/actions of the plaintiff/victim, and (5) language in the plaintiff/victim’s pleadings.

For example, if the plaintiff/victim retains counsel, files a Complaint for Divorce, which includes claims for sole or shared custody. THEN, he or she files a TRO, intentions could and should be questioned as improper. It is also important to consider the words/actions of the plaintiff/victim. For example, who did the plaintiff/victim contact after any alleged incident – was it law enforcement and/or medical attention or was it the advice of counsel? What positions as to custody and/or parenting time did the plaintiff/victim take after the entry of the TRO? The key to this specific defense is turning the plaintiff/victim’s alleged motivations around on him/her.  And showing his or her true, ulterior motivations in court.

Experience Matters

Recently, I represented a client in a 4 day trial in a domestic violence matter.  I was able to secure a successful outcome for that client. While every case is different and outcomes cannot be predicted, it is important to retain a skilled attorney.  This is especially true when matters of domestic violence are at issue.

Contact us for more information regarding domestic violence issues, or if you have other family law questions.

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