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Violating a Criminal Statute Will Not Automatically Result in a Final Domestic Violence Restraining Order

by | Mar 23, 2022 | Domestic Violence


Domestic violence “describes a pattern of abusive and controlling behavior which  injures its victim.” Corrente v. Corrente, 281 N.J. Super. 243, 246 (App. Div. 1995). New Jersey’s Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq., attempts to address the pervasive and damaging societal problem of domestic violence. The Legislature’s concern about the problem of domestic violence and its intent in protecting victims are contained in the legislative findings in the statute itself, which states that “domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all social and economic backgrounds and ethnic groups; that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence.  It is, therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide.” N.J.S.A. 2C:25-18.

In enacting the laws regarding domestic violence, the Legislature did not establish a new set of criminal behaviors within the domestic violence statute itself, but referenced a list of criminal conduct with references to the accompanying criminal statutes for “homicide, assault, terrorist threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual conduct, lewdness, criminal mischief, burglary, criminal trespass, harassment, cyber-harassment, stalking, criminal coercion, robbery and “any other crime involving risk of death or serious bodily injury to a person” protected under the statute”.   Is it enough that a plaintiff is able to show that a defendant simply committed one of these acts for a final restraining order to be entered?  The answer is- No. The Legislature did not intend that a violation by a defendant of one of the enumerated criminal statutes will automatically result in the entry of a final restraining order.  More analysis is required by the court, which is something that litigants may not understand or adequately prepare for, whether the litigant is the victim or the accused.

New Jersey has its Prevention of Domestic Violence Act in order to “assist those who are truly victims of domestic violence.”  Silver v. Silver, 387 N.J. Super. 112, 124 (App. Div. 2006).  Courts thus have a broad range of relief available to protect victims of domestic violence.  However, the Supreme Court has also reminded trial courts that not only must they protect true victims of domestic violence, they need to be “gate keepers” to prevent misuse of the domestic violence statute. Trial courts are warned: “In the area of domestic violence, as in some other areas in our law, some people may attempt to use the process as a sword rather than as a shield.” State v. Hoffman, 149 N.J. 564, 586 (1997). Specifically, the courts are to ensure that the domestic violence statute is not “trivialized by its misuse in situations which do not involve violence or threats of violence” or to be “misused in order to gain advantage in a companion matrimonial action or custody or visitation issue.” Silver, 387 N.J. Super. at 124 (quoting Kamen v. Egan, 322 N.J.Super. 222, 243 (App.Div. 1999). In enacting the domestic violence statute, the Legislature referenced concern about the problem of serious or regular abuse and not ordinary  “domestic contretemps”. Corrente, 281 N.J. Super. at 247. This responsibility and the fact sensitive nature of domestic violence cases can make it difficult to develop clear rules and guidelines as to when a final restraining order should be entered.  J.D. v. M.D.F., 207 N.J. 458, 475 (2001). 

Trial courts often look to the case of Silver v. Silver 387 N.J. Super. 112 (App. Div. 2006) for guidance as to the steps in the analysis when determining whether to enter a final restraining order.  The courts have to undergo a two-step analysis.  First, the trial court judge will determine if the plaintiff has proven by a preponderance of the credible evidence that one or more of the predicate acts in the domestic violence statute has occurred. The court is required to evaluate the most recent act of alleged domestic violence in light of the previous history of violence between the parties. That does not mean that a final restraining order cannot be issued if there was no history of domestic violence.  A single, sufficiently egregious action may constitute domestic violence even if there is no history of verbal or physical abuse between the parties. Kamen, 322 N.J. Super. at 228. However, it is significant for the court to consider the history of domestic violence because an ambiguous incident might qualify as domestic violence when evaluated in light of a history of violence between the parties.

Second, when that inquiry is complete, the court then has to decide whether it should enter a restraining order that provides protection for that plaintiff.  Silver, 387 N.J. Super. at 126.  As previously stated, the commission of predicate act proscribed by the domestic violence statute does not automatically warrant the entry of a final restraining order.  The Appellate Division noted that this second determination may be self-evidence but the guiding standard is whether the a restraining order is necessary under the factors of N.J.S.A. 2C:25-29a(1) to (6) to protect the victim from immediate danger or to prevent further abuse. Id. at 127. The court is to consider but not be limited to (1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;  (2) The existence of immediate danger to person or property; (3)  The financial circumstances of the plaintiff and defendant;(4) The best interests of the victim and any child; (5) In determining custody and parenting time the protection of the victim’s safety; and (6) The existence of a verifiable order of protection from another jurisdiction.  Both plaintiffs and defendants have run afoul of this second prong of Silver because insufficient facts were established. 

In Kamen v. Egan, 322 N.J. Super. 222  (App. Div. 1999), the defendant went to the plaintiff’s home when it was no longer her parenting time to see the parties’ children and would not leave until the plaintiff threatened to call the police. There was no history of violence between them.  The trial court’s decision to enter a final restraining order against the defendant based on the finding that she violated the trespass statute, one of the proscribed acts in the domestic violence statute, was reversed because the trial court failed to adequately consider the second prong – which is whether a final restraining order should be entered. Although the defendant did technically commit trespass, the Appellate Division noted that there was no violence between the parties or threat of violence between them, and no history of violence. As such, there was no imminent risk to the plaintiff’s safety or property demonstrated.

Contrast that case with the recent unpublished decision of the Appellate Division in I.M. v. E.S.P., Docket No. A-0457-20, decided by the Appellate Division on March 17, 2022.  In that case, the defendant went to the plaintiff’s home when it was no longer the defendant’s parenting time to visit with the parties’ child.  While doing so, the plaintiff refused to leave when asked, and when the plaintiff tried to take the baby from the defendant, he punched the plaintiff twice in the nose, pushed her, and bit her index finger, holding it in his teeth.  A temporary restraining order was entered, which the defendant violated numerous times by calling the Plaintiff repeatedly and showing up at her house, and criminal charges for assault were filed against the defendant. There was also a history of domestic violence wherein the plaintiff had not only been verbally abused, but she had been choked, had her head pushed against a car dashboard, pushed, scratched and bruised. The trial court denied the request for a final restraining order based not on the finding that the defendant committed acts that violated several criminal statutes proscribed in the domestic violence statute. Rather, the plaintiff was not granted a restraining order based on the second prong  – which was that she did not demonstrate to the court that a final restraining order should be entered. The trial court noted that while the action was pending, the plaintiff sent the defendant photos of the parties’ child and also communicated with him to facilitate his parenting time and, therefore, the court questioned that she was motivated by fear of the defendant when seeking a final restraining order. The Appellate Division did reverse this decision, noting that it was self-evident given the facts of the case that a final restraining order should have been entered  and that the trial court improperly disregarded the graphic evidence of injuries to the plaintiff and the history of violence between the parties when assessing whether a final restraining order was warranted. 

These cases demonstrate not only the fact sensitive nature of domestic violence actions, but the importance of how your case is presented, whether you are the victim or accused.  If you are in need of assistance in the area of domestic violence, Cipriano Law Offices is prepared to represent you.



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