The New Jersey Domestic Violence law is quite comprehensive. It can have a devastating impact upon an individual’s life. While the drafter’s intentions were noble, it has the capacity to be abused in practice.
There are three essential elements to entitle someone to the protections afforded by the domestic violence law. There must be a qualifying relationship. That means the “victim” must be at least 18 years of age or an emancipated minor who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member. It also includes any person, regardless of age, who has a child in common with the other person, anticipates having a child with that person if one of them is pregnant. It also includes anyone with whom there has been a dating relationship. If you have never had one of these relationships, the act does not apply.
There is a temporal component to the law. It is construed rather broadly but exists nevertheless. For example, siblings fall within the act because they were once household members. Having said that, the courts have limited when a sibling can allege domestic violence when the time they have been apart is significant and the contact has been fleeting. This applies with respect to other relationships as well.
The second requirement is that a “predicate act” be committed. The statute identifies what criminal offense constitute the predicate acts. The definition of each offense remains the same. In other words, the offense does not have any different elements solely because domestic violence is alleged. Those predicate acts are:
Homicide;
Assault;
Terroristic Threats;
Kidnapping;
Criminal Restraint;
False Imprisonment;
Sexual Assault;
Criminal Sexual Contact;
Lewdness;
Criminal Mischief;
Burglary;
Criminal Trespass;
Harassment; and
Stalking.
Finally, the last element is that the “victim” have a legitimate fear of the other person. If those 3 elements are met, the court will find an act of domestic violence and enter an order. If any one is not met, no order will issue. The order the court enters is called a restraining order. That order can have various components to it. The most common are preventing the perpetrator of the domestic violence from having ANY CONTACT with the victim. This is direct (by the perpetrator) or indirect (not by the perpetrator but at his or her direction). It can include no contact with family members of he victim as well. Perhaps most problematic is the perpetrator will be removed any residence the parties shared before to the event and be obligated to relocate elsewhere. Often they get 30 minutes to acquire their belongings under police escort. The order can also include a requirement that the perpetrator pay the attorney’s fees of the victim, attend anger counseling, pay costs and meet other financial obligations. A copy of the form of order that can be entered follows.
The process typically commences with a telephone call to the police or a visit to the police/courthouse. The party makes a complaint and a determination is made whether there is enough to believe a violation may have occurred. This is often a one sided process and as you can imagine, the police or court staff will err on the side of caution. If that occurs, a temporary restraining order will be entered. The perpetrator will be precluded from having any contact with the victim and if applicable, removed from the property. A hearing will be scheduled within 10 days where a defense can be mounted and a judge will hear both sides of the events. As a restraining order is a civil proceeding, the standard of proof is the lower preponderance of the evidence associated with all civil proceedings. In other words, which version is more likely than not true. If the judge determines the elements have been met, a final restraining order will be entered and the same or modified conditions will be imposed.
The imposition of a restraining order can have a longstanding impact. The perpetrator will be placed into the domestic violence registry. They will be precluded from obtaining or keeping any firearms. They must constantly fear that the victim will allege a violation. This is perhaps the most significant because an alleged violation of a restraining order will almost certainly result in arrest. If convicted of violating the restraining order, the first violation, depending upon the severity, will typically not result in a jail sentence but a second violation will. A mandatory 30 day jail sentence. This is a criminal proceeding and utilizes the higher beyond a reasonable doubt standard.
There is what appears to some as an anomaly in the law. For example, if a temporary restraining order is entered, and while it is pending, some violation of that order occurs, even if the court, after a hearing on the restraining order determines that it should not be made permanent, the violation can still be prosecuted and you can be convicted because the order existed when the contact occurred.
The law does provide for an individual that has a restraining order entered against him to obtain relief. After some period of time you can move to have the order vacated. There are multiple factors the court considers in making that determination. They are:
- CONSENT OF VICTIM TO LIFT THE ORDER
- THE VICTIM’S FEAR OF THE DEFENDANT
- NATURE OF THE RELATIONSHIP BETWEEN THE PARTIES TODAY
- CONTEMPT CONVICTIONS
- ALCOHOL AND DRUG INVOLVEMENT
- OTHER VIOLENT ACTS
- WHETHER DEFENDANT HAS ENGAGED IN DOMESTIC VIOLENCE COUNSELING
- AGE/HEALTH OF DEFENDANT
- GOOD FAITH OF A VICTIM
- ORDERS ENTERED BY OTHER JURISDICTIONS
- OTHER FACTORS DEEMED RELEVANT BY THE COURT
The court can also impose counsel fees if it determines the application is brought in bad faith.
As noted, the restraining order is civil in nature. The entering of a restraining order or refusing to enter a restraining order is separate and distinct from any criminal charges. For example, if the victim alleges that they were assaulted, they can seek a restraining order and a criminal charge can be filed by the State. They are separate proceedings with separate parties involved (a prosecutor in the criminal action). A finding as to one does not equate to a similar finding in the other. It is not unusual for a restraining order to be entered but a not guilty finding in the criminal case. This occurs because of the lesser burden of proof to get a restraining order versus a conviction for a criminal offense.
The above is just a brief overview of the law. It is far more complex and nuanced. If you believe you have been the victim of domestic violence or have been issued a temporary restraining order, you should consult counsel and discuss the matter.