Domestic Violence in New Jersey Family Law
Domestic violence is a serious concern that poses a major threat to the health, lives and welfare of New Jersey residents, and it can be an important issue in family law matters. New Jersey’s state law on domestic violence, the Prevention of Domestic Violence Act, is intended to shield victims of this type of violence from further abuse. While the act is invoked, both rightly and wrongly, in divorce and custody matters, it also applies to a wide range of circumstances, including to perpetrators, like household employees, who are not family members in a traditional sense.
Understanding the Prevention of Domestic Violence Act
The Prevention of Domestic Violence Act aims to provide victims of violence with protection from their partners, spouses or other family members engaging in violence in the home. The act can be used to protect children and elders from abuse by their caregivers, for example.
The law encompasses a wide range of behaviors, including:
- Terroristic threats or threats of violence
- Criminal restraint and false imprisonment
- Sexual assault or criminal sexual contact
- Burglary or criminal trespass
- Criminal mischief
- Harassment or stalking
- Cyber harassment
- Criminal coercion
- Contempt of an existing domestic violence order
- Any other crime involving the risk of death or serious bodily injury
Since the law was passed, it has been updated. For instance, the law now covers various forms of cyber harassment, from revenge porn to cyberstalking.
Under the act, law enforcement personnel and the state courts have remedies to provide further protection. Victims of domestic violence can pursue a temporary restraining order through the courts and then a final restraining order, although it is much easier to receive a TRO as it can be issued without a full hearing and both sides present in order to provide immediate protection.
Temporary and Final Restraining Orders
To receive a temporary restraining order, a victim and/or their family law attorney presents to a municipal or superior court judge evidence that one or more acts of domestic violence covered by the law have occurred. The temporary restraining order can extend to other loved ones, and it can also be sought on behalf of children or elders who are unable to seek such an order themselves.
TROs are not only issued during the court’s hours of operation; victims can go to a police station on holidays, weekends or at night for a telephone hearing with a judge about issuing a TRO. A TRO is a one-sided application, and the defendant does not have a right to be heard or challenge its issuance. Because it is issued in advance of a hearing with both sides present, it is a temporary order.
It is much more difficult to obtain a final restraining order because the defendant also has a right to represent themselves. At a hearing for an FRO, the victim must show that an act of domestic violence occurred, and to prove the same by a preponderance of evidence. They must also show that an FRO is necessary to prevent such acts in the future and that the victim is still afraid of the defendant. The defendant and their family lawyer can present a full defense at an FRO hearing.
Domestic Violence and Divorce Cases
Domestic violence law can be used both legitimately and illegitimately in divorce cases. Abuse and violence are major reasons why couples seek a divorce, and that violence can be exacerbated by the separation, requiring a victim to seek recourse in the courts in order to protect themselves and establish a record of the facts. In other cases, however, litigants may seek to use the domestic violence statutes inappropriately in order to attempt to gain an advantage in a pending divorce.
Domestic violence law does not apply to what the New Jersey courts call domestic or marital “contretemps,” or a normal argument that may arise between a couple. Some parties may be more motivated to bring domestic violence claims if they believe that a successful restraining order will force their partner to leave the home and give them a leg up in equitable distribution as well as other key areas like child support and custody.
A divorce attorney can provide guidance to clients who are concerned about facing these types of allegations from their estranged spouse as part of the divorce case. In some cases, people may want to limit their interactions with their spouse, have other people with them during those interactions or record those interactions.
When a final restraining order is issued, there is a rebuttable presumption that the victim should have custody of the children. This can be a major issue propelling domestic violence cases forward during a divorce, and both victims of domestic violence and wrongfully accused defendants may aim to protect their rights by working with a family lawyer for their domestic violence litigation. A divorce lawyer can provide further advice as to how domestic violence litigation affects a pending family law matter.
Must Domestic Violence Be Reported to the Police?
It is well-known that many acts of intimate violence are not reported to police. There are several reasons for this, including remaining affection between partners, a fear of not being believed and a desire to protect the relationship. However, to obtain a final restraining order, victims must prove that an incident of domestic violence as specified in the law has taken place.
While a police report is one form of evidence frequently used in these cases, it is not the only form. Victims may bring friends, family members or other trusted individuals that they confided in at the time of the incident or witnesses like neighbors that may have seen or heard the encounter. In the case of physical abuse, victims may be able to present medical records or other testimony establishing their injuries. However, New Jersey appellate courts have ruled that there is no requirement for the victim to have previously disclosed the abuse to the police or any other party, especially if there are credible reasons why the victim did not previously disclose the abuse.
This means that even if a victim did not previously file a police report, they should not prevent themselves from accessing the courts to protect themselves moving forward. A family law attorney might offer further assistance on a specific case.
Who Is a “Household Member” in Domestic Violence Law?
Domestic violence laws are aimed to protect people from violence committed by members of the household. In most cases, people may think of their household members as spouses, non-marital partners, children, elders or other relatives. However, the law can also apply to other types of intimate relationships, including some types of roommate relationships or employment relationships.
Domestic employees can be both perpetrators and victims of domestic violence within a home. In many cases, domestic employees such as nannies or housekeepers live in the home full-time and share intimate spaces with their employers. One such case that upheld this principle involved a nanny who was hired by a mother to care for her children and live in the family home. The nanny used an alias to obtain the position and assaulted the child while under her care. After she was fired, she began harassing and threatening the mother.
For the mother to obtain a restraining order, she needed to show that the nanny was legitimately considered a household member, despite their employer-employee relationship. The fact that the nanny lived in the home for seven months and had close contact with the child as well as the plaintiff all contributed to the court’s decision.
Dealing With Domestic Violence
If you are a victim of domestic violence or if you believe you are being falsely accused as part of divorce litigation, a divorce lawyer or family law attorney can help you to protect yourself. Contact Jeralyn Lawrence at the Red Bank and Watchung, New Jersey, offices of Lawrence Law at 908-645-1000, or use our online form to request an initial consultation.