Domestic violence remains a serious problem in our society. In 2010, 42,043 new domestic violence complaints were filed which resulted in the entry of 7,816 final restraining orders (FRO). While most domestic violence complaints are bona fide, there are many instances where defendants (men and women alike) are falsely accused. The New Jersey Supreme Court has recognized that some litigants attempt to use the Prevention of Domestic Violence Act as a “sword” rather than a “shield.” State v. Hoffman, 149 N.J. 564, 586 (1997). Applying the Act against persons who have not committed domestic violence “diminishes the suffering of true victims of domestic violence and misuses the legislative vehicle which was developed to protect them.” Peranio v. Peranio, 280 N.J. Super. 47, 56 (App. Div. 1995).
Persons falsely accused of domestic violence face severe legal consequences. In addition to evicting the defendant from his or her residence, a domestic violence complaint can lead to the assessment of money damages, counsel fees and other economic repercussions. Child custody, support, use of marital assets and other forms of emergent relief may also be regularly addressed in these proceedings. Attorneys accused of domestic violence can be suspended from the practice of law. Once a domestic violence order is entered, the violation of that order carries the imposition of criminal penalties and the potential for incarceration. N.J.S.A. 2C:25-30. Therefore, because the stakes are so high and the implications vast, attorneys must be adequately prepared to defend persons falsely accused of domestic violence.
In most instances, domestic violence temporary restraining orders (TROs) are obtained through an ex parte court proceeding. As a result, the defendant’s attorney usually receives a copy of the TRO from the client sometime after the initial hearing has taken place. Because final hearings must be held within ten (10) days after the entry of a TRO, the attorney is immediately under time pressure when defending persons accused of domestic violence. In cases where jurisdiction is lacking or where the alleged act of domestic violence can easily be disproved, the defense attorney should consider taking emergent action to dissolve the TRO. Any TRO is immediately appealable for a plenary hearing de novo not on the record under N.J.S.A. 2C:25-28i. But see Vendetti v. Meltz, 359 N.J. Super. 63 (Ch. Div. 2002). Attorneys should be cautioned, however, that many judges use the plenary hearing as a de facto final hearing requiring both sides to be prepared should this emergent process be invoked.
Where the allegations are more complex or more difficult to disprove, counsel must consider obtaining an adjournment so as to properly prepare for trial. Yet, because an adjournment will require the continuation of the temporary restraints until final hearing, the decision to seek an adjournment is often problematic. The longer temporary restraints continue, the harder it may be at final hearing to obtain their dissolution. In most instances, the TRO enjoins the defendant from returning to his or her place of residence. Thus, after a long period of separation, the court may conclude that it is unnecessary and undesirable to reunite the parties in the same home. In cases involving custody, temporary restraints prohibiting visitation or restricting contact serve to attenuate a defendant’s relationship with his or her children. Therefore, at the outset counsel must weigh the ability to proceed without an adjournment, versus the prejudicial impact that the delay will cause the defendant.
II. JURISDICTIONAL ISSUES
Subject matter jurisdiction requires that the plaintiff fall within the category of persons protected by the Act. The statute defines a victim of domestic violence as any person who is 18 years of age or older or an emancipated minor who has been subjected to domestic violence by a spouse, former spouse or any present or former household member. N.J.S.A. 2C:25-19d; see M.A. v. E.A., 388 N.J. Super. 612 (App. Div. 2006). A victim of domestic violence also includes any person, regardless of age, who has a child in common or anticipates having a child with the abuser where one of the parties is pregnant. Id. Finally, a victim also includes any person, regardless of age, who has had a dating relationship with the person charged with domestic violence. Id.
Originally, the domestic violence statute only afforded protection to married couples and persons who resided together in a family-like setting. When the Legislature expanded the Act to include “former household members” and “dating relationships” the doors of the courthouse were opened to same sex couples, roommates and many new plaintiffs beyond traditional married couples. The result has been a significant increase in domestic violence cases.
The Appellate Division has become conscious of the burgeoning domestic violence case-load so as to conclude that “jurisdictional scrutiny is necessary to ensure that the Act is not trivialized and the Superior Court is not overrun with disorderly persons cases properly allocable to the Municipal Courts.” Smith v Moore, 298 N.J. Super. 121, 123-24 (App. Div. 1997). Practitioners should be aware of the body of case law which has developed defining who qualifies as a victim of domestic violence. Especially where the victim claims to be a “former household member” or where a past “dating relationship” is alleged, practitioners should ensure that there is proper jurisdiction for the entry of an FRO. If the plaintiff is not among the class of persons protected by the Act, serious consideration should be given to making an emergent application to dissolve the TRO and to have the complaint dismissed for lack of subject matter jurisdiction.
III. PREPARING THE CASE
1. Complaint and related documents
After entry of a TRO, the police or sheriff are required under N.J.S.A. 2C:25-28l to serve a copy of the order and the complaint upon the defendant. The complaint will indicate whether the alleged domestic violence is based upon one or more of the following acts: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment and stalking. The complaint will also indicate the date on which the alleged incident occurred and the plaintiff’s claim as to what happened.
The complaint will also set forth the relief that the complainant is seeking. As this relief can be varied, the defense attorney may be required to litigate issues such as custody, support and money damages all within the same proceeding as the domestic violence matter. The defense attorney needs to review the complaint to anticipate what lies ahead in a domestic violence hearing.
Separate and apart from the complaint is the “Confidential Victim Information Sheet.” The Victim Information Sheet is completed by the victim and given to a professional staff person for use in preparing the complaint. See Domestic Violence Procedures Manual, at 4.3.1. (Amended October 2008). Critical information is contained in this document including whether plaintiff was injured, whether photographs were taken and whether any property was damaged. Pazienza v. Camarata, 381 N.J. Super. 173, 187 (App. Div. 2005). The form also requires the plaintiff to set forth in narrative, a description of the incident and why the plaintiff is seeking a restraining order. Id. The defendant is clearly entitled to this information as it may be relevant to the defense to the extent that it conflicts with the complaint. Id. at 188-89. Because the document is labeled “confidential,” it is not served with the complaint and courts have systematically, though improperly, deprived defendants of this important evidence.
2. Transcript of Initial Proceeding
Especially as the initial hearing is usually conducted ex parte, whenever possible attorneys should attempt to obtain a transcript of the proceeding during which the TRO was granted. This proceeding may take place before the Family Part in the Superior Court or in the Municipal Court. The transcript will give insight into the complainant’s version of what happened and the names of potential witnesses. The transcript of the TRO hearing may also be used to impeach the complainant’s credibility should that person’s testimony at the final hearing vary from what was said at the initial hearing. Because of the time constraints involved, it may not be possible to obtain a transcript. In those cases, attorneys should make an attempt to listen to the tape of the emergent hearing in advance of trial so as to determine the importance of obtaining a transcript and whether to seek an adjournment in order to have the transcript available. Some venues prohibit attorneys from obtaining these transcripts (notwithstanding that these proceedings are public) without court authorization. See N.J.S.A. 2C:25-33(a). Although this authorization is eventually granted, this becomes an additional step in obtaining the record of the case.
3. Police Reports
In all cases of domestic violence it is important to contact the municipal police to determine whether the incident was reported to the authorities. If the incident was not reported this may be evidential that the alleged act did not occur or, if it did occur, that there was no immediate danger to person or property constituting domestic violence. If the incident was reported, the report will indicate whether the police witnessed any evidence of injury and the action they took in response thereto. If the police took no action, this may be evidential of no signs of injury as the police must arrest and file a criminal complaint against the defendant if the plaintiff exhibits signs of injury caused by an act of domestic violence.
In addition to the police report, the police may have the tape of the telephone call (most police departments now tape incoming calls) during which the incident was reported; an incident report which dispatched the police to the scene; and a domestic violence offense report which is required under N.J.S.A. 2C:25-24. Again, the defense attorney is looking for what the plaintiff told the police when the alleged domestic violence was reported. This should be compared to the testimony at the initial hearing and at the final hearing to explore any inconsistencies.
In some cases the police may not release these records notwithstanding that you represent the person charged. In that event it may be necessary to obtain an order from the Superior Court Judge handling the domestic violence matter to have the records released.
Upon examination of the complaint, transcript of the initial proceeding, police reports, as well as other facts brought to your attention by your client, the practitioner will be able to determine the witnesses who will need to testify at final hearing. Defense attorneys should not limit potential witnesses to persons who actually observed the alleged act of domestic violence. Rather, persons who can testify to events immediately before or after the alleged act may be important as bearing on credibility and whether the circumstances existing at that time were consistent with the testimony of the parties. In some cases, expert witnesses and character witnesses may be appropriate. All witnesses (including police officers) should be subpoenaed for trial. Practitioners should be aware that due process rights are violated when a defendant is prevented by the court from presenting or cross-examining witnesses. See J.D. v. M.D.F., 207 N.J. 458 (2011); Peterson v. Peterson, 374 N.J. Super. 116 (App. Div. 2005).
One of the more difficult subjects is whether to subpoena children and family members as witnesses. As domestic violence often takes place in the home, it is an unfortunate consequence that in many cases the only witnesses are family members. Family members may be reluctant to “take sides” by testifying in these matters. Untold emotional damage may be inflicted upon children who are forced to testify against a parent. The attorney must weigh the damage that will be done by involving children and family members against the necessity of their testimony to the person accused.
Often overlooked due to the limited time period prior to the final hearing, is the request for discovery. Although the statute makes no specific provision for discovery, principles of due process and fair play mandate that discovery be available in domestic violence cases as in other Family Part matters. Therefore, if the plaintiff alleges injury (and especially if damages are pled), the practitioner should subpoena any medical records or report regarding these allegations. When possible, production notices should be served upon the plaintiff to produce in advance of trial, all evidence which will be relied upon at the time of trial such as: photographs, tape recordings, expert reports, and other tangible evidence. The notice should also seek a list of all witnesses who will be called at the time of trial. The attorney should move to suppress any evidence not produced in response to a discovery request.
IV. THE HEARING
Notwithstanding the fact that the definition of domestic violence is the commission of a criminal act (i.e., assault, harassment, etc.), the plaintiff only has the burden to prove the act by a preponderance of the evidence. See N.J.S.A. 2C:25-29a; see also Crespo v. Crespo, 408 N.J. Super. 25, 36-38 (App. Div. 2009), aff’d, 201 N.J. 207 (2010). However, the plaintiff must prove all elements of the underlying criminal act. Therefore, the family law practitioner must become familiar with the fourteen (14) criminal acts which constitute domestic violence and their definitions under the criminal code. For example, although the plaintiff may prove a fact pattern which on its face constitutes an act of domestic violence, unless the act is committed with the requisite intent provided in the criminal code, there is no domestic violence.
In cases where there has been no prior history of domestic violence and where the domestic violence alleged does not involve physical contact (e.g., harassment and terroristic threats cases), the court is not required to enter a finding of domestic violence notwithstanding that all elements of the criminal act may established. In these cases, the Appellate Division has held that “the drafters did not intend that the commission of one of the acts…automatically would warrant the issuance of a domestic violence order.” See D.C. v. F.R., 286 N.J. Super. 589, 608 (App. Div. 1996). Rather, it has been held that domestic violence is “a term of art which defines a pattern of abusive and controlling behavior injurious to its victims.” See Peranio v. Peranio, 280 N.J. Super. 47, 52 (App. Div. 1995); Corrente v. Corrente, 281 N.J. Super. 243, 246 (App. Div. 1995). As such when there is no physical contact the court will look for a pattern of “regular serious abuse.” Peranio, 280 N.J. Super. at 53; Corrente, 281 N.J. Super. at 247. Therefore, in cases where there is no physical contact and no prior history of domestic violence, the argument can be made that the incident is not actionable as it is “an isolated aberrant act” or “ordinary domestic contretemps,” and as such not actionable as domestic violence. See N.B. v. T.B., 297 N.J. Super. 35, 40 (App. Div. 1997).
The Appellate Division has held that a two-step pronged analysis must actually be met prior to the entry of a FRO. Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). First, the trial court must find that a predicate act of domestic violence occurred. Then, the trial court must determine whether a FRO is necessary to protect the alleged victim from immediate danger or further acts of domestic violence.
Oftentimes the question of whether an act of domestic violence occurred turns on “credibility.” This is because domestic violence cases frequently come down to the plaintiff’s word against that of the accused. Credibility can be gauged in many ways including: (a) is plaintiff’s testimony at odds with what was alleged in the complaint or at the initial hearing wherein the TRO was obtained; (b) is plaintiff’s testimony consistent with what was told to the police at the time of the incident; (c) has the plaintiff filed prior domestic violence complaints which have proven to be frivolous; (d) how much time elapsed between the alleged act of domestic violence, the report to the police, and the ultimate filing of a complaint; (e) can the plaintiff document by photograph or other means the domestic violence or injury alleged; (f) is there a pending matrimonial action in which the plaintiff will be advantaged by the entry of a domestic violence order; and (g) have the parties reconciled or had sexual relations since the alleged incident. Although the resumption of sexual relations may be insufficient to nullify the complaint; it can be used as proof to establish no “immediate danger to person or property” under N.J.S.A. 2C:25-29a(2). These and other areas impacting upon credibility must be explored fully in defending persons falsely accused of domestic violence.
Practitioners should be aware that the statute allows complainants to raise “the previous history of domestic violence” between the parties as a factor in proving a domestic violence complaint. See N.J.S.A. 2C:25-29a(1). Prior acts of domestic violence between the defendant and a previous spouse not a party to the action may also be admissible. Rosiak v. Melvin, 351 N.J. Super. 322, 327 (Ch. Div. 2002). Conversely, prior acts which were the subject of an earlier domestic violence proceeding dismissed on the merits may be barred under principles of res judicata. T.M. v. J.C., 348 N.J. Super. 101, 106 (App. Div. 2002). Defendants should argue the inadmissibility of past allegations of domestic violence citing the probative/prejudice balance under N.J.R.E. 403. Another argument to be raised is the fact that due process requires that a party have notice defining the issues and an adequate opportunity to prepare and respond. See J.D. v. M.D.F., 207 N.J. 458, 478 (2011); H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003). Finally, although the statute permits testimony regarding past acts of domestic violence as a factor in proving the complaint, a FRO cannot be obtained based solely on an alleged act which is not included in the complaint.
Finally, practitioners should be aware that the statute provides that “self defense” is a defense to domestic violence. A “victim” who used “reasonable force in self defense against domestic violence by an attacker” shall not be charged under the act. See N.J.S.A. 2C:25-21c(3). The issue of whether the “accused” is in reality the “victim” must not be ignored. Practitioners should be certain that a defendant accused of domestic violence, who is in actuality the victim, file a separate complaint. This matter should be heard together with the domestic violence complaint previously filed against that party.
V. ALTERNATE DISPUTE RESOLUTION
On the return date of the final hearing, there will usually be sufficient time to explore the possibility of coming to an alternate resolution to a trial on the domestic violence complaint. However, practitioners should be aware that restraints cannot be imposed in a domestic violence matter unless the defendant acknowledges fault. See R. 5:7A(d). Even where the defendant acknowledges fault and consents to restraints, the allegation must constitute an act of domestic violence for the court to have jurisdiction to enter restraints under the Act. Chernesky v. Fedorczyk, 346 N.J. Super. 34 (App. Div. 2001).
Practitioners should exercise extreme caution when acknowledging fault in order to resolve a domestic violence complaint. Once an FRO is entered, it may only be dissolved “upon good cause shown.” N.J.S.A. 2C:25-29(d); see Carfagno v. Carfagno, 288 N.J. Super. 424, 433 (Ch. Div. 1995). Further, the acknowledgment of fault may be res judicata as to the issue of liability leading to potential claims for compensatory and punitive damages. See Lickfield v. Lickfield, 260 N.J. Super. 21 (Ch. Div. 1992). Indeed some have argued that domestic violence is intentional conduct which mandates the imposition of punitive damages in every case. See Sielski v. Sielski, 254 N.J. Super. 686 (Ch. Div. 1992); but cf. Reeves v. Reeves, 265 N.J. Super. 126 (App. Div. 1993). Before conceding to restraints, practitioners should place on the record that the acknowledgment of fault is “without prejudice” to any subsequent damage claim. If possible, defendants should hold out for a specific release from any potential damage claim resulting from the alleged domestic violence in exchange for an admission of fault. At all times, counsel should ensure that fault is only admitted to the least serious allegation pled. When possible, the plaintiff should be requested to amend the complaint to plead a lesser act of domestic violence that may have occurred so as to avoid having the defendant admit to a more serious allegation.
Practitioners should also be aware that a confession of domestic violence gives rise to a presumption that custody should be awarded to the non-abusive parent. N.J.S.A.
2C:25-29b(11). For this reason, defendants who are legitimately contesting custody should understand the implications of an admission of domestic violence on the issue of custody. Furthermore, the admission of domestic violence can impact the visitation rights of the alleged abuser. Indeed, should the victim request an investigation to assess the risk of harm to a child, the court shall suspend all contact or allow only supervised visitation to the abuser pending the completion of risk assessment. See N.J.S.A. 2C:25-29b(3)(a); Cosme v. Figueroa, 258 N.J. Super. 333, 337 (Ch. Div. 1992); Domestic Violence Procedures Manual, at 4.14.4 (Amended October 2008). For these reasons, practitioners will want to ensure that issues of custody and visitation are specifically addressed in concert with consenting to the imposition of restraints and the acknowledgment of fault.
Because of the pitfalls in acknowledging fault, the better practice is to attempt to dismiss the domestic violence complaint in return for the entry of similar restraints in a dissolution (FM action) or non-dissolution (FD action) proceeding. Restraints in the FM or FD action do not require the admission of fault. As a result, these restraints are not res judicata for future damage suits and do not give rise to a presumption of custody. Further, restraints in the FM or FD action avoid the harsher domestic violence contempt penalties that may result from future violations.
VI. COUNSEL FEES
In addition to other relief, victims can obtain counsel fees from defendants who commit domestic violence. See N.J.S.A. 2C:25-29b(4). In a domestic violence context, attorneys’ fees are viewed as an element of compensatory damages. See McGowan v. O’Rourke, 391 N.J. Super. 502, 507 (App. Div. 2007). As such, the normal analysis for obtaining counsel fees in Family Part matters under R. 4:42-9, R. 5:3-5(c) , and the case law under Williams v. Williams, 59 N.J. 229 (1971) requiring the demonstration of defendant’s “ability to pay” and other factors, becomes inapplicable. Thus, victims can potentially obtain counsel fees in every case provided the fees are reasonable and are as a result of the domestic violence complaint. See McGowan at 507. Therefore, in those cases where the defendant admits to fault, a waiver of counsel fees should be obtained.
Conversely, when the defendant prevails against a false domestic violence charge, the defendant should consider seeking counsel fees from the plaintiff. However, counsel fees in this situation are not automatic and are not permitted under R. 4:42-9. See M.W. v. R.L., 286 N.J. Super. 408 (App. Div. 1995). For the defendant to obtain counsel fees, it must be demonstrated that the plaintiff’s complaint was a frivolous action in violation of N.J.S.A. 2A:15-59.1. Id.
Very few cases in our legal system move with the speed of domestic violence hearings. As such, it is often difficult to marshal all facts and witnesses in time for trial. Nevertheless, attorneys can adequately defend persons falsely accused of committing acts of domestic violence. To do this, attorneys must be prepared to work expeditiously and to treat domestic violence cases with the importance that they deserve.