Articles Posted in Criminal Actions

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Valentines Day. A day that couples celebrate their love. Sending flowers with a card to one’s significant other is a common way of expressing that love. And to not be disappointed, people are encouraged to order their flowers as soon as possible to assure delivery by Valentine’s Day. One does so. But after the order is placed, the lovers become fighters and someone obtains a Domestic Violence Restraining Order against the other. In the meantime, the flower and card get delivered and the sender gets arrested and charged with criminal contempt. Was this a crime? That was the situation presented in the case of State v. J.T., 470 N.J. Super 106(Ch. Div. 2020) which was recently approved for publication.

In this case, the defendant had been charged with a contempt of a domestic violence TRO. The issues addressed by the Court was whether the defendant could be found to have “purposely or knowingly” violated the TRO by having initiated communication to a protected party prior to the entry and service if the TRO, and secondarily, whether a defendant was subject to a TRO has an affirmative obligation to attempt to recall or withdraw such communication. The Court found the answer to both questions to be negative and accordingly, dismissed the Contempt Complaint against the defendant.

In this matter, the parties had been in a dating relationship. The plaintiff had obtained a TRO against the defendant on January 31, 2020, which the defendant acknowledged had been served upon him on that date. However, one (1) week prior to the entry of the TRO, the defendant had ordered a floral arrangement for the plaintiff which was scheduled to be delivered to the plaintiff along with a card the day before Valentine’s Day, February 13, 2020. Although he had been served with a TRO which prohibited him from having any contact or communication with the plaintiff, the defendant did not stop, or take any action to stop, the floral delivery from occurring, nor did he inquire as to whether such delivery could be stopped. The flowers and card were in fact delivered to the plaintiff on February 13th resulting in the contempt charges being brought against the defendant.

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I often get asked questions about the Division of Child Protection & Permanency, more commonly referred to by its old name, DYFS. Specializing in child abuse and welfare defense, it is not uncommon for both individuals and family law attorneys who do not specialize in this area to have questions when the Division becomes involved with a family. One frequent question is whether it is necessary to retain an attorney if the Division has not actually taken parents to court, but rather is involved with the family on what I would refer to as an administrative level.

To answer this question, it is important to understand the role of the Division of Child Protection & Permanency on at least a basic level. The Division is responsible for investigating calls alleging abuse or neglect of a child. These calls are often anonymous and there is no minimal level of proof that triggers an investigation. When the Division gets a call, they must investigate. Investigating the allegation may include coming to the family’s home and assessing for any safety concerns, speaking to both the parent(s) and the child(ren), and speaking to professionals involved with the child(ren) such as the school or daycare and their pediatrician.

Upon completion of its investigation, the Division will make one of four findings: Substantiated, Established, Not Established and Unfounded. A finding of Unfounded means there is not a preponderance of evidence that a child has been abused or neglected and the evidence indicates the child was not harmed or placed at risk of harm. Such a finding will not be reported and remains confidential, and often any Division records regarding the allegation and investigation will be eligible to be expunged after three years (understand this is not always true). A finding of Not Established again means that there is not a preponderance of evidence that a child has been abused or neglected, but some evidence indicates the child was harmed or placed at risk of harm. This finding will not be reported and remains confidential, but the Division’s records may not be expunged and will be permanently maintained by the agency. A finding of Not Established may be appealed, but only to the Appellate Division within 45 days of receipt of the finding. pexels-pixabay-236215-300x198

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In this Appellate Division case entitled New Jersey Division of Child Protection and Permanency v. S.K., A-2734-15 (App.Div. August 31, 2018), the defendant argues the Family Part Judge file000388004075-200x300improperly drew an adverse inference against him when he invoked his right against self-incrimination under the Fifth Amendment to the United States Constitution and this New Jersey’s evidence rule, N.J.R.E. 503, in response to DCPP’s (the “Division”) request to call him as a witness in the fact-finding hearing. This issue has not been addressed in a published opinion by any court in New Jersey. The Appellate Division held that a Family Part Judge may not draw an adverse inference of culpability against a defendant who invokes his right against self-incrimination to refuse to testify at a Title 9 fact-finding hearing.

In this case, after an interview with the Division caseworker, the defendant’s two daughters, Jane and Kate, were taken to the police station for interviews as a result of Jane claiming that the defendant abused her when she was younger. Jane told the detective that the sexual abuse began when she was six years old and continued until she was approximately eleven. When the detective asked her if she could tell him what happened, she answered: “No. It’s . . . I don’t actually remember, I have[a] bad memory.” She also claimed she could not remember the last time he molested her.  Through the use of drawings of male and female bodies and pointed to specific body parts to ask Jane where the defendant had touched her, Jane told the police that the defendant touched specific body parts with “his hand and dick.”She claimed he kissed her lips while she was laying down, and touched her “boobs”with his hand, and her vagina with his “dick and hand.” With respect to her vagina, she claimed he touched her “on the inside.” She estimated the molestation occurred less than 20 times.

The detective also interviewed Kate, who at first claimed that Jane did not tell her about the abuse but after the detective pressed, Kate claimed that Jane may have told her something a while ago but she could not remember.

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Domestic-violenceThe time period in the lead up to and immediately after a couple separates is more likely than not rife with conflict. Unfortunately, the conflicts, whether verbal and/or physical, can rise to the level of abuse that is tantamount to domestic violence. Recently, a New Jersey family court in Ocean County issued an unpublished opinion is the case of AS-v-VS, FM-15-923-17, which is illustrative about how a family court judge handles a domestic violence complaint, especially in proximity to the filing of another family court matter. Continue reading ›

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file000388004075In a prior post, I took a look at the process necessary to seek the dissolution or modification of a Final Restraining Order (FRO), specifically taking into consideration the Carfagno factors that have since been adopted by the Appellate Division as a non-exhaustive list of factors for the Court to consider when one of these applications is made.  In a recent, albeit unpublished, decision, the Appellate Division revisits this issue and takes a closer look at what constitutes a prima facie case of good cause and changed circumstances warranting a plenary hearing on this issue.  That case, B.R. v. J.A., originated in Hudson County and has been reversed and remanded for a plenary hearing by the Appellate Division, without any discussion on the merits of the defendant’s application. Continue reading ›

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In New Jersey, it is well established that both parties have an obligation to support their children financially.  Accordingly, child support obligations are one of the primary issues dealt with when a marriage or relationship ends between people who have children, whether it be my consensual agreement or court order. However, the amount of child support due may be subject to a later modification.  After the entry of a child support obligation, there are a number situations or circumstances that can occur that might warrant a later termination of modification of that child support obligation, including but not nearly limited to the following: the child’s emancipation, a change in the child’s needs, the involuntary loss of income to one of the parents, or a substantial increase in the income of either parent. Continue reading ›

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During a custody dispute over children, if the parties cannot reach an agreement between themselves as to the custody and parenting time arrangement that serves the best interest of the child(ren) at issue, the Court will then be called upon to make that determination for them. The Court is required to make findings as to , and will apply the 15 statutory factors of N.J.S.A. 2A:9:2-4, among which are factors that include the “fitness of the parents”, the “parents’ ability to agree, community and cooperate in matters relating to the child”, the “needs of the child”, and the “stability of the home environment offered”.   Continue reading ›

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Most people are aware that communications between a lawyer and client are generally considered to be confidential or “privileged” and may not be disclosed to anyone without their consent. The same is true in regards to discussions between a physician or psychologist and his/her patient. However, most people are not aware that communications between spouses (or partners in a civil union) enjoy the same type of “privilege’ and were generally protected from disclosure absent mutual consent. Continue reading ›