Much is written about the physical and emotional harm that is caused to victims and children as a result of domestic violence. The purpose of this article is not to address the severe and horrific cases that have resulted and the need for New Jersey’s Prevention of Domestic Violence Laws. Rather, this article will address New Jersey law as it pertains to domestic violence matters involving complaints of “harassment” and how domestic violence restraining orders can affect the parties’ rights and obligations in divorce litigation.
When a domestic violence complaint is filed, a judge will consider the testimony of the alleged victim and determine whether there is a sufficient basis to enter a Temporary Restraining Order. This hearing is conducted without the presence of the defendant and usually without notice to the defendant. When a Temporary Restraining Order is issued, a final hearing, with the presentation of witnesses and evidence, is scheduled within ten days. Defendants are given a copy of the Temporary Restraining Order and there is no discovery prior to the hearing. Thus, important rights can be affected in a very short time period and in many cases, parties are not properly advised when appearing before the Court.
New Jersey’s Domestic Violence Statute defines the various criminal offenses which constitute an act of domestic violence. Acts of assault, stalking, burglary, terroristic threats and criminal trespassing are fairly well defined by this State’s criminal code. Yet, by far, the most often asserted basis for litigated domestic violence matters involve complaints of “harassment”. Although N.J.S.A. 2C: 33-4 provides three alternate definitions of harassment, each of these definitions contain ambiguous descriptions which often lead to subjective interpretations and inconsistent results.
According to the Statute, “harassment” is an offense if a person acts with “purpose to harass another”. This means that in determining whether an act of harassment has occurred, New Jersey Courts must determine what was the intent of the actor. The problem is that one party’s intent may be to intimidate and seriously annoy, while another party’s intent may be a reaction to the stresses of marital discord or conduct that is commonly exhibited by both parties.
Further, one of the subsections of the Statute defines harassment as a communication in “offensively coarse language, or any other manner likely to cause annoyance or alarm”. Clearly, what is offensive to one party, may be quite common to another. Similarly, a communication which may cause annoyance to one party, may be typical to another party’s relationship.
These subjective definitions have led to considerable litigation and New Jersey Appellate Court review. Our Courts have made it clear that domestic violence cannot be found in cases involving only “marital contretemps”. Rather, the alleged victim’s claims of domestic violence must be evaluated in light of the previous history of domestic violence between the parties, including previous threats, harassment and physical abuse and whether immediate danger to a person or property is present. Our Appellate Courts have repeatedly indicated that domestic violence is ordinarily more than an isolated act. Rather, a court must find that the victim needs the protection of the Domestic Violence Statue because the victim’s safety is threatened.
Notwithstanding this Appellate Court guidance, frequently Temporary Restraining Orders are granted based upon incidents or behaviors which do not meet these standards. Unfortunately, as well, because of the subjective nature of domestic violence complaints based upon “harassment”, Final Restraining Orders have been entered in an inconsistent manner.
There are numerous serious consequences resulting from domestic violence matters which can greatly affect the parties’ rights and obligations in the event of divorce. First and foremost, a domestic violence restraining order will result in the removal of the defendant from the marital residence. This will cause substantial disruption and, in many cases, financial hardship and significant disadvantages in settlement negotiations and divorce proceedings.
Second, a finding of domestic violence will have an effect on rights of custody and parenting time. In fact, our law provides a presumption that when a party is found to have committed an act of domestic violence and a restraining order is issued, it is in the best interests of the children, that custody, at least on a temporary basis, be granted to the victim. This presumption can be extremely difficult to overcome in future divorce and custody proceedings. Further, the Defendant can be subjected to multiple evaluations, including psychological evaluations, substance abuse evaluations and risk assessments.
Third, domestic violence orders can result in problems with employment and difficulties involving professional licenses, law enforcement qualifications and disqualification for future employment opportunities.
It is for these reasons, and others, that there is no question that any party, whether victim or defendant, should consult with experienced matrimonial counsel if a domestic violence complaint is filed or even if a domestic violence complaint is being contemplated. During a consultation, experienced matrimonial counsel should provide a party with guidance as to how best to present necessary evidence in support of the domestic violence complaint or in response to a domestic violence complaint. There should also be a discussion as to whether the party should consider resolving the domestic violence matter by consenting to similar restraints pursuant to a Civil Restraining Order which could be entered pursuant to a divorce, custody or support matter. In many cases, the civil restraints can be mutual and applicable to both parties. Further, during a consultation, an attorney may advise the victim that there are deficiencies in the victim’s domestic violence complaint that require immediate amendment before a final hearing. Similarly, a defendant in a domestic violence matter can be advised to file a cross-claim against the plaintiff, if there are allegations that the defendant has also been subjected to acts of domestic violence. Finally, if it appears that a trial is necessary, a litigant must be advised as to the court procedures, including the potential of producing or subpoenaing witnesses.
In summary, although domestic violence proceedings are meant to deal with protecting victims and providing them with easy access to the judicial system, the potential far-reaching effects on the parties’ rights and obligations demand consultation with counsel at the earliest possible time.
Barry Chatzinoff, Esquire