This New Case on Domestic Violence May Really Interest You
Posted January 4th, 2018 by Anthony Carbone, PC.
Categories: Domestic Violence.
Unfortunately, domestic violence hits the headlines every day. In fact, each and every minute of the day, approximately 20 people are victims of physical abuse by an intimate partner. A great number will apply for restraining orders. However, that does not mean they will all secure them.
First and foremost, you should be aware that in order to secure a final restraining order (FRO), there must be proof of a predicate act of domestic violence. Cyber harassment may be a form of domestic violence, as well as the other acts listed in the statute.
When a victim makes an application for a restraining order, it will be necessary to provide evidence of the domestic violence. Additionally, the court makes a judgment to determine if the victim will be placed in further jeopardy absent the FRO. So, why did the New Jersey Appellate Division just reverse the decision of a lower court judge to order one?
Proof of Domestic Violence
Among other things, the court’s recent decision in M.C. v. G.T. stressed the importance of finding evidence of domestic violence before issuing a final restraining order. Although the decision has been approved for publication, the parties’ names have been masked with fictional initials. M.C. is referred as Monica in the decision; G.T. is George. The fact that the case will be published means it is a matter of law.
According to the brief history of the case, Monica and George were in a dating relationship. Although the specifics are not contained in the court’s decision, Monica claimed that George was harassing her and requested that a lower court judge grant her a restraining order against him.
The trial court judge listened to the testimony offered by Monica and George. Ultimately, the court felt there were credibility issues when it came to both parties. Therefore, the judge found that no evidence supported the existence of a predicate act of domestic violence. In fact, the judge indicated that there was no proof that George “acted with a purpose to alarm or annoy.” Notwithstanding, the lower court still entered an FRO.
All things considered, you may find this a bit confusing. How could the court issue a restraining order without proof of domestic violence?
In entering the restraining order, the court relied on what it called “equitable powers.” More specifically, the trial court judge cited P.J.G. v. P.S.S., 297 N.J. Super. 468 (App. Div. 1997) as the basis for her authority.
In P.J.G. v. P.S.S., the parties had both filed applications for restraining orders. Although there was no finding of domestic violence for one of the cases, the other justified the FRO. The Family Part judge was determined to have “ample inherent power to order any party to refrain from conduct that frustrates the court’s jurisdiction or the Act’s intendment, or has the capacity to do so.”
On appeal in M.C. v. G.T., the New Jersey Appellate Division found that the lower court could not enter a restraining order based on equitable powers. In this matter, there was no other pending case. The request for a restraining order was based on a disproven act of domestic violence. Therefore, the case was reversed by the Appellate Court.
Concerned about Domestic Violence?
If you are involved in a domestic violence matter, it is essential to seek legal counsel. The Law Offices of Anthony Carbone has decades of experience in these types of cases. Contact us to learn how we can help you.