Posts

Domestic Violence And Your Options

By: ​Peter M. Halden, Esquire

During the past half century or so, the subject of domestic violence has evolved from a laughing matter to a deadly serious societal concern.

One of television’s most popular early shows was The Honeymooners, a staple of the mid-1950s, which starred Jackie Gleason as the oft-frustrated Ralph Kramden. As the live television audience responded with gales of laughter, Kramden would routinely threaten his wife, Alice, with bodily harm, mimicking a punch to the face while exclaiming, “One of these days, Alice……POW, right in the kisser!”

We know better today. Domestic violence isn’t funny at all; rather, it’s a serious problem that affects relationships across virtually all societal and economic groupings.

Victims of domestic violence are often presented with two independent legal options, but they have vastly different focal points. While these two options are not mutually-exclusive, meaning that victims can pursue either or both, they lead to dramatically different results.

The first option is a restraining order which, if granted by a judge, prevents the aggressor from any future contact with the victim. Restraining orders are heard as part of a civil proceeding in the Superior Court, first as a temporary restraint, entered based on the convincing testimony of only the victim. Then a judge without a jury decides whether to grant the restraining order following a trial to determine whether the victim requires a restraining order for reasons of future personal safety after both parties are given the opportunity to testify and be cross-examined by the other or the other’s attorney.

The other option is filing a criminal charge such as assault or harassment against the aggressor in the municipal court. If convicted by a judge (again without a jury), the aggressor faces fines, surcharges and even potential incarceration.

But there’s an even more basic difference between these two potential remedies, and it boils down to one word: CONTROL.

In the civil proceeding (aimed at securing a protective restraining order), the victim has complete control over the process. He or she can pursue the restraining order or, alternatively, decide to drop it. The decision is totally up to the victim, since the case is captioned as “Victim v. Aggressor.”

Not so in municipal court. Once the charge is filed, the case is captioned as “State of New Jersey vs. Aggressor.” The charge can then be dropped only with the consent of the prosecutor. Years ago, the prosecutor almost always did what the victim wanted, meaning the case was dropped or pursued, depending on the victim’s discretion. However, as society became more concerned with repeat domestic violence offenders, the judgment of the victim gave way to an approach that encouraged prosecution of domestic violence cases even when the victim had a change of heart.

This becomes especially problematic when one realizes that punishing the aggressor in municipal court often adversely affects the victim as well. More often than not, a conviction for a domestic violence-related offense in municipal court results in a fine against the aggressor. But when the aggressor is the spouse of the victim, and they share bank accounts, a fine against one party affects the other in equal measure.

In addition, a conviction leaves the aggressor with a permanent record as a domestic abuser, which can result in a loss of immediate employment or of a future employment opportunity. In a situation where the victim and aggressor remain in a relationship, the aggressor’s employment limitations going forward may also affect the economic welfare of the victim.

Thus, the decision by the victim as to whether to file a criminal charge against the aggressor in a domestic violence should not be taken lightly. Once filed, the victim no longer controls the process. Legal advice, for both the victim and aggressor, is readily available and should be strongly considered in domestic violence situations.

Restraining Orders and Mediation – Balancing the Equities

By:  Deena L. Betze, Esq.

We all know that mediation can be an effective and cost saving tool to resolve family law disputes. This is certainly true with regard to custody and parenting time issues. It is a well-used method for alternative dispute resolution often relied on by judges who otherwise would not be able to handle an already overcrowded docket. Without enough time or resources to try every litigated case, it is common practice for courts to order parties to mediate some or all of their issues both during and after divorce litigation. Similarly, parties who resolve their matters by way of settlement often include mediation clauses in their marital settlement agreements, whereby both parties agree to first submit a future dispute to mediation before either party resorts to motion practice before the court.

 

What then, to do when there is a final restraining order in place? Can mediation ever be utilized when a domestic violence restraining order has been entered against one of the parties?

 

This issue was recently addressed by the Appellate Division in O.P. v. L. G.-P., Docket No. A-0835-in which the lower court had ordered the parties to mediation in reliance upon an agreement to mediate their disputes set forth in their marital settlement agreement. Unfortunately, escalating disputes between the parties following their execution of that agreement and divorce resulted in the entry of a domestic violence restraining order against the plaintiff. The Appellate Court held that the lower court erred by enforcing the mediation provision in the agreement because of the entry of the final restraining order, finding that when a final restraining order entered pursuant to the Act For the Prevention of Domestic Violence is entered contains a no contact provision, a judge in a subsequent proceeding should not urge or encourage the victim to lift or modify that restraint. Thus, the Appellate Panel held that the court cannot order parties to mediation when a final restraining order is in place, for reasons of safety as well as public policy concerns, even where a mediation clause may be set forth in a settlement agreement.

 

There is no question that victims of domestic abuse must be protected and restraining orders previously entered be upheld, even if doing so contravenes the court’s similarly important role in upholding and enforcing marital settlement agreements that are fair and reasonable. However, this decision does not preclude parties from participating in mediation or other alternative dispute resolution techniques to resolve their disputes when a final restraining order exists, under circumstances in which the victim is protected. A restraining order can be amended to allow for a certain measure of communication on limited issues between the parties, for example, so that they can mediate a parenting issue. Certain protections can be put into place to assure the victim’s safety, such as conducting the mediation in “caucus” fashion, in which the parties are in separate rooms and the mediator speaks to them individually, one at a time. Counsel for the parties can be present and participate in the mediation to afford another level of protection to the victim. Accordingly, if the victim chooses to go to mediation, he or she is not precluded from creating a specific amendment to the restraining order to do so, and under the right circumstances, it can still be a very effective method of resolving issues, even where restraints exist.

Domestic Violence (Temporary and Final Restraining Orders)

At BorgerMatez, our attorneys represent both victims of domestic violence and defendants who have been accused of domestic violence. The most common forms of domestic violence are assault, threats, and harassment. Abuse does not have to be physical, but can be any behavior that causes the victim to fear for his or her safety. Some examples include verbal threats to strike, kick or sexually assault the victim, sending harassing e-mails or text messages, excessive phone calls without a legitimate purpose. In New Jersey, victims must be 18 years old or older to file a domestic violence complaint in court. The courts do not distinguish between victims based on physical or psychological condition or by sexual orientation. The Prevention of Domestic Violence Act is not limited to protecting only married individuals but includes persons who are cohabiting and even only dating.  A Temporary Restraining Order (TRO) may be entered by a hearing officer, Judge of the Superior Court or Judge of the Municipal Court, upon the application of the alleged victim who must testify about what happened and that he/she is in fear of his/her safety and a restraining order is necessary to protect him/her.   If a TRO is granted, the court will schedule a hearing within approximately 10 days and the defendant will be served with the TRO advising him/her of the date for the final hearing. At the final hearing, the parties will have an opportunity to testify, bring witnesses and evidence, and the court will ultimately determine if the defendant committed an act of domestic violence, and, if so, if the victim requires the protection of a Final Restraining Order (FRO). In addition to entering an FRO, upon a finding of domestic violence, Judges have the discretion to also grant other relief such as custody and parenting time, spousal support, child support, sole occupancy of a home, possession and use of vehicles and other assets, monetary damages, and more.

A Restraining Order does not necessarily guarantee a person’s safety from another, but does provide that if the defendant violates the order, he/she will be arrested and charged with a fourth degree crime.  Domestic Violence Restraining Orders in New Jersey are permanent; they never expire.  Upon a finding of domestic violence and the entry of an FRO, the defendant’s name is placed on a national Domestic Violence Registry which may impact his/her ability to obtain security clearances, work with or near children, adopt a child, enter the law enforcement field, and which may have other consequences. If you are a victim of physical abuse or verbally threatened or harassed, you should call the police immediately. Once you are safe, contact an experienced attorney in our office at BorgerMatez to assist you. If you’ve been charged with committing an act of domestic violence and a TRO has been entered against you, call one of our experienced attorneys at BorgerMatez to represent you and protect your interests and your future.