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Legal Professionals When Abuse is Profuse, Always Refuse to Lose! Surviving and Thriving – Domestic Violence By Ehsan F. Chowdhry, Esq.
New Jersey has one of our nation’s strongest set of laws in place to protect victims of domestic violence. Domestic violence appears in many forms, including cyber abuse, emotional / mental abuse, financial abuse, physical abuse, sexual abuse and a whole host of other combinations.
The Prevention of Domestic Violence Act of 1991 is a statute found within New Jersey’s Code of Criminal Justice, specifically at N.J.S.A. 2C:25-17 through 2C:25-35. The law is found within the criminal laws; the court process is considered civil in nature and final restraining order (FRO) hearings / trials are held in the New Jersey Superior Court, Chancery Division, Family Part. Given the state of COVID-19 and the attendant stressors accompanying it, our practice has seen a tremendous spike in domestic abuse and violence cases, giving us all a great cause for concern. This article aims to give an extremely basic and brief overview to a complex area of the law in New Jersey. Victims of domestic abuse and violence can use these set of laws through a skilled attorney to navigate through a difficult period of their life and through a legal process that seems intimidating. First, who exactly qualifies as a victim? Our state law defines a victim of domestic violence as any person who is eighteen (18) years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a 1) spouse, 2) former spouse, 3) present household member, 4) past household member, 5) any person, regardless of age, with whom the victim has a child in common, 6) anticipates having a child in common (pregnancy), or 7) has or has had a dating relationship with. See N.J.S.A. 2C:25-19d. When victims of domestic abuse and violence muster the courage, strength and temerity to finally say enough to their abusers, the process usually begins with a 911 call if there is an active situation or when the victim can safely escape the situation and goes to either the municipal police department or Superior Court. The process can seem overwhelming but either a police officer or court staff will take the initial information and connect the victim before a municipal court judge, a domestic violence hearing officer or a Superior Court judge to obtain a temporary restraining order (TRO). This is known as an ex parte proceeding, meaning that the abuser is not present nor an attorney from their side. An interpreter can be made available and accommodations for any disability if needed. By law, the victim is put under oath and a copy of the testimony is supposed to be kept, either through stenographic medium, tape or longhand notes (if he or she is not physically present). See Rule 5:7A(d). The victim is asked information regarding the predicate (underlying) act or set of acts causing them to seek out a TRO. There is a box to be checked off on the first page of the TRO and the law provides nineteen (19) categories that can fit, including false imprisonment, sexual assault, harassment and stalking. See N.J.S.A. 2C:25-19a(1)-(19). Additionally, they are asked for information about past history regarding domestic violence and abuse. If during the shock or pressure of this harrowing ordeal a victim forgets information, he or she can either themselves, or better yet, through an attorney, get an amended TRO that includes past acts of violence not initially included. See State of New Jersey Domestic Violence Procedures Manual § 4.5.7. For most victims at the onset of seeking a TRO, an attorney is not involved; however, it is imperative that the first call they make after getting safe from a current act(s) of domestic abuse and violence is to one. At that point, the judge either grants or denies the TRO. If the TRO is granted, you will be provided a copy of the TRO, which indicates certain things the abuser is prohibited from doing, including, but not limited to, contacting you by any means nor through third parties, to have the abuser vacate the household, prevent them from showing up to your work and other protective measures. Law enforcement are directed to serve a copy of this TRO to put the person on notice that a judge has granted this protection. Then by court rule, this event must be heard within ten (10) days to determine whether an FRO is to be granted. See Rule 5:7A(e). Usually, and especially during COVID-19, a reasonable postponement to get an attorney, from either the victim or the abuser, is honored. It should be noted that unlike the criminal justice system, where an attorney will be appointed for you if you cannot afford one, this is inapplicable
in the domestic violence arena in New Jersey. It is common, however, for the abuser to be charged criminally as well in either municipal court or Superior Court, depending on the severity of the underlying domestic violence act. Once the day arrives for the FRO hearing / trial, you will need all your witnesses present along with any evidence that supports your case. This holds true even during the pandemic wherein FRO hearings / trials are being held through virtual court, usually on a Zoom or Microsoft Teams platform. In our state court system, as the victim / plaintiff, you bear the burden of proof. Fortunately, for domestic violence victims it is the lowest burden of proof, a preponderance of the evidence which essentially means that the evidence is more likely true than not true (essentially slightly over a fifty [50] percent standard). See N.J.S.A. 2C:25-29a. In order for the victim of domestic violence / plaintiff to win, he or she must prove, by a preponderance of the evidence, that 1) the court has jurisdiction to hear this case or, in other words, whether they are a victim of domestic violence as defined above; 2) that they have proven by preponderance of the evidence that at least one predicate act occurred and 3) that they have proven by a preponderance of the evidence that issuance of an FRO is necessary to prevent further abuse or future harm. See generally N.J.S.A. 2C:25-29a(1)-(6); Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). If the victim is successful in obtaining an FRO, it is a major victory for him or her and a major impediment for the defendant / abuser. A judge has the power under this comprehensive act to order a host of things, including, but not limited to, exiting the residence, revocation of a person’s firearms identification purchaser card, a monetary penalty, subject the person to drug testing, fingerprinting, a financial penalty, payments of restitution, payments for rent or mortgage, custody of a pet, parenting time, mandated professional domestic violence counseling. An FRO can have immigration consequences for a non-citizen, can affect a background check, military or security clearance, and if violated, will subject the violator to prosecution in the Criminal Part of the Superior Court for an indictable crime of contempt. An FRO in New Jersey, unlike other jurisdictions, is permanent – it does not need to be renewed and generally it is not removed absent an exception. This is an extremely simplified version of the major parts of the process. Please call us to utilize our specialized skills, knowledge, education, experience and training to help you break free of the cycle of domestic violence!
The County Woman Magazine www.TheCountyWoman.com
January/February 2021
