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New Jersey Appellate Division Further Clarifies Standard for Issuing Domestic Violence Restraining Orders

In a recently published decision by New Jersey’s Appellate Division in the matter of  AMC v. PB,  the appellate court overturned a trial court decision which denied a petitioner’s request for a Finalfile000799318829 (1) Restraining Order (FRO). The trial judge found that a FRO was not necessary because the Plaintiff had “failed to establish even a mere likelihood that the parties would continue to interact in the future” or that Defendant posed a threat to her.

The parties in this case were married without children. The Plaintiff fled the marital home to stay at a women’s shelter.  She obtained a temporary domestic violence restraining order (TRO) on June 9, 2015, against her husband, a Newark police officer.  While the Defendant was never served with a copy of the domestic violence complaint or the TRO, the parties appeared in court for a hearing on June 18, 2015.

The trial judge found that Defendant had committed acts of domestic violence, namely simple assault on two occasions.   The judge, however, refused to issue a final restraining order based on the belief that the Plaintiff did not need protection from future acts of violence by the Defendant given that the Defendant had not tried to contact the Plaintiff after she obtained the temporary restraining order. The trial judge stated the “Defendant was unaware that the Plaintiff had obtained a TRO, demonstrating the type of relationship the parties had after the Plaintiff left the marital home.” The trial judge further stated that “Defendant appears to have no desire to have any continuing association with the Plaintiff”, and noted that Defendant did not call Plaintiff or attempt to communicate with her after she left their home. The trial judge also relied on the fact that the parties did not have any children and, therefore, they would not need to continue to interact as parents in the future.

The Appellate Division reversed this decision, finding that the trial court erred by misapplying the two prong test of Silver v. Silver, 387 N.J. Super. 112, 125-27 (2006). Silver requires that a judge must first determine if a plaintiff proved, by a preponderance of the evidence, that a defendant committed one or more of the predicate acts of domestic violence set forth in the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-19a.  If the judge finds that a defendant committed one or more of the predicate acts listed in the aforementioned statute, the judge must determine whether a final restraining order is needed to protect the victim. Id. at 126. The Appellate Division found that the parties’ lack of children together, the Defendant’s failure to contact Plaintiff after she left the marital home, and the brief duration of the parties’ marriage did not limit the Plaintiff’s right to a final restraining order under the second-prong of Silver.  Applying the standards in Silver, the appellate court found that the Plaintiff established the need for a final restraining order as a matter of law.

The Appellate Division also stated that the trial court had an obligation to determine why the Defendant was not served with the domestic violence complaint or the temporary restraining order.   The Appellate Division also noted that the Clerk of the Court or other person designated by the court failed to notify the Chief of Police of the Newark Police Department, members of the State Police, or any other appropriate law enforcement agency that a temporary restraining issue had been issued against the Defendant, a Newark police officer, as required by N.J.S.A. 2C:25-28(n). The failure to carry out these procedural requirements violated the law, Supreme Court policy, compromised the safety of domestic violence victims and undermined the Defendant’s constitutionally guaranteed right to due process. Thus, the Appellate Division held that the trial court erred as a matter of public policy given the Judiciary’s failure to carry out these legal responsibilities when denying the Plaintiff’s application for a domestic violence restraining order.