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New Jersey Appellate Division Determines That Litigants Cannot Negotiate Agreement for a Final Domestic Violence Restraining Order

The Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35,  is a powerful tool designed to protect domestic victims from violence and degradation experienced at the hands of an abusive

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partner. Before the Domestic Violence Act, it was difficult to remove abusive co-habitants from residences or to protect victims from unwanted contact and communications. It is a serious law with serious consequences. Victims of domestic violence who posses a Final Restraining Order (FRO) can call upon the police to protect them from their abuser. The adjudicated abuser faces prison should he/she violate the final restraining order.  In addition to facing potential incarceration should they violate the order, someone adjudicated guilty of domestic violence faces a loss of any state licenses they possess, and they are placed in a data bank available to all law enforcement marking them as a violent individual. It is a powerful law which invokes the State to take action to make the victim safe and to monitor the perpetrator.

In the matter of, JS – v- DS N.J. Super ( App. Div. 2016) ( A-5742-14T2), our Appellate Division was faced with the question: Can the parties to a Domestic Violence action agree to a Final Restraining Order (FRO) without a Judicial finding of domestic violence? It should be noted that our courts encourage the settlement of domestic issues by the parties and generally give substantial weight and reference to the private agreement of the parties.

The J. S. matter involved a husband and wife. They came to an agreement that the wife would be granted a FRO and the husband would be give exclusive occupancy of the marital home. The Trial Judge accepted the agreement as the private agreement of parties, took no testimony and made no findings either that domestic violence had occurred or that the wife needed the powerful protection of the domestic violence statute.

The Appellate Division reversed this decision, finding that a final restraining order cannot be entered without an adjudication by a court of domestic violence.  The Appellate Court noted that Temporary Restraining Orders (TRO), which are  entered when a domestic violence action is initiated, cannot be dismissed without an inquiry into the Plaintiff’s understanding of the consequences of dismissal and an affirmation that there was no trade of promises for the dismissal. This inquiry furthers the State’s public policy that final restraining orders not be a bargaining chip in the settlement of other family disputes.  Accordingly, if parties wish to avoid a full hearing in a domestic violence matter they must introduce proofs sufficient for the Court to find that the existence of domestic violence and the need for a final order of protection. In a footnote the Court called into question, without making a finding, the common practice of dismissing a domestic violence action in favor of an order for civil restraints.

The Domestic Violence Act is an important law that can have a profound affect on those involved. It can impact the entire family, can result in the involvement of social services divisions, the loss of employment, as well the loss of professional licenses. It, of course, protects victims. It is a powerful law designed to deal with a complex societal issues in which the State has a substantial and pervasive interest. Invoking the power of the domestic violence statute should not be taken lightly.  As a means to protect those who have suffered at the hands of an abuser, it is a powerful antidote.