Sunday, October 21, 2012
Domestic Violence Law in Family Court
By: Kenneth A. Vercammen, Esq.
New Jersey domestic violence laws are very strict. For example, O.J. Simpson would not have gotten away with abuse in New Jersey. A spouse or significant other can call the police and if there are any signs of physical injuries the police are automatically required to arrest the accused abuser. Even without independent witnesses and no physical injuries, police may arrest the accused person. The police are required to give the victim information about their rights and to help them. Among other things, police must write up a report.
Even during the evening, every town Municipal Court or Superior Court can issue a Restraining Order, which is a legally enforceable document. The Temporary Restraining Order (TRO) will prohibit the defendant/abuser from any contact with the victim or entering the residence.
Unlike a criminal case where a person is provided with lengthy discovery rights, a domestic violence hearing allows judges to issue far-reaching orders. A domestic violence hearing is usually held within only ten (10) days after the filing of an ex parte complaint and temporary restraining order. After a hearing, NJSA 2C: 25-29 (b) allows the Chancery Division, Family Part Judge to grant substantial relief to the complainant.
The New Jersey Supreme Court has already found that the ten-day provision comports with the requirements of due process, but can be delayed for limited reasons.
In H.E.S. v. J.C.S., 175 N.J. 309, 323 (2003), the Court held:
"the ten-day provision does not preclude a continuance where fundamental fairness dictates allowing a defendant additional time. Indeed, to the extent that compliance with the ten-day provision precludes meaningful notice and an opportunity to defend, the provision must yield to due process requirements." [Internal quotations and citations omitted.]
Discovery not mandatory in Domestic Violence family cases
Domestic violence actions are "summary actions," a fact that inherently precludes the right to discovery. See, e.g., H.E.S., supra, 175 N.J. at 323. However, the Appellate Division, in Crespo v Crespo 408 NJ Super. 25 (App. Div. 2009), affirmed as constitutional, 201 NJ 207 (2008) noted that one trial court has determined that, in accordance with Rule 5:5-1(d), a defendant may seek leave to obtain discovery in such a matter upon a showing of good cause. Depos v. Depos, 307 N.J. Super. 396, 400 (Ch. Div. 1997). The Appellate Court agreed with the opinion of Judge Dilts in Depos that in compelling circumstances, where a party's ability to adequately present evidence during a domestic violence action may be significantly impaired, a trial judge may, in the exercise of sound discretion, permit limited discovery in order to prevent an injustice. Judges are not required to be oblivious to a party's claim for discovery in compelling circumstances even though the court rules do not expressly authorize relief. See, e.g., Kellam v. Feliciano, 376 N.J. Super. 580, 587 (App. Div. 2005).
The Crespo court held "Here, the record reveals that at no time did defendant seek leave to conduct any discovery proceedings."
In Pepe v Pepe, 258 N.J. Super. 157 (Chan. Div. 1992) held that the confidentiality provision of record keeping under the Domestic Violence act applies to the records kept on file with the Clerk of the Superior Court.
The Family Court Judge powers:
At the hearing the judge of the Family Part of the Chancery Division of the Superior Court may issue an order granting any or all of the following relief:
(1) An order restraining the defendant from subjecting the victim to domestic violence, as defined in this act.
(2) An order granting exclusive possession to the plaintiff of the residence or household regardless of whether the residence or household is jointly or solely owned by the parties or jointly or solely leased by the parties. This order shall not in any manner affect title or interest to any real property held by either party or both jointly. If it is not possible for the victim to remain in the residence, the court may order the defendant to pay the victim's rent at a residence other than the one previously shared by the parties if the defendant is found to have a duty to support the victim and the victim requires alternative housing.
(3) An order providing for parenting time.
(4) An order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence. The order may require the defendant to pay the victim directly, to reimburse the Victims of Crime Compensation Board for any and all compensation paid by the Victims of Crime Compensation Board directly to or on behalf of the victim, and may require that the defendant reimburse any parties that may have compensated the victim, as the court may determine. Compensatory losses shall include, but not be limited to, loss of earnings or other support, including child or spousal support, out-of-pocket losses for injuries sustained, cost of repair or replacement of real or personal property damaged or destroyed or taken by the defendant, cost of counseling for the victim, moving or other travel expenses, reasonable attorney's fees, court costs, and compensation for pain and suffering. Where appropriate, punitive damages may be awarded in addition to compensatory damages.
(5) An order requiring the defendant to receive professional domestic violence counseling from either a private source or a source appointed by the court and, in that event, requiring the defendant to provide the court at specified intervals with documentation of attendance at the professional counseling. The court may order the defendant to pay for the professional counseling.
(6) An order restraining the defendant from entering the residence, property, school, or place of employment of the victim or of other family or household members of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim or other family or household members.
(7) An order restraining the defendant from making contact with the plaintiff or others, including an order forbidding the defendant from personally or through an agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact with the victim or other family members, or their employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim.
(8) An order requiring that the defendant make or continue to make rent or mortgage payments on the residence occupied by the victim if the defendant is found to have a duty to support the victim or other dependent household members; provided that this issue has not been resolved or is not being litigated between the parties in another action.
(9) An order granting either party temporary possession of specified personal property, such as an automobile, checkbook, documentation of health insurance, an identification document, a key, and other personal effects.
(10) An order awarding emergency monetary relief, including emergency support for minor children, to the victim and other dependents, if any. An ongoing obligation of support shall be determined at a later date pursuant to applicable law.
(11) An order awarding temporary custody of a minor child.
(12) An order requiring that a law enforcement officer accompany either party to the residence or any shared business premises to supervise the removal of personal belongings in order to ensure the personal safety of the plaintiff when a restraining order has been issued. This order shall be restricted in duration..
(13) An order granting any other appropriate relief for the plaintiff and dependent children, provided that the plaintiff consents to such relief, including relief requested by the plaintiff at the final hearing, whether or not the plaintiff requested such relief at the time of the granting of the initial emergency order.
(14) An order that requires that the defendant report to the intake unit of the Family Part of the Chancery Division of the Superior Court for monitoring of any other provision of the order.
(15) In addition to the order required by this subsection prohibiting the defendant from possessing any firearm, the court may also issue an order prohibiting the defendant from possessing any other weapon enumerated in subsection r. of N.J.S.2C: 39-1 and ordering the search for and seizure of any firearm or other weapon at any location where the judge has reasonable cause to believe the weapon is located. The judge shall state with specificity the reasons for and scope of the search and seizure authorized by the order.
(16) An order prohibiting the defendant from stalking or following, or threatening to harm, to stalk or to follow, the complainant or any other person named in the order in a manner that, taken in the context of past actions of the defendant, would put the complainant in reasonable fear that the defendant would cause the death or injury of the complainant or any other person.
(17) An order requiring the defendant to undergo a psychiatric evaluation.
Effective September 1, 2011, the Court Rules were revised
5:3-7 (c) Enforcement of Relief under Provisions of Domestic Violence Restraining Orders Not Subject to Criminal Contempt Complaints. On finding that a party has failed to comply with the provisions of a restraining order issued pursuant to the Prevention of Domestic Violence Act, not subject to criminal contempt (part II relief excluded under N.J.S.A. 2C: 25-30), the court may, on notice to the defendant, in addition to the relief provided by R. 1:10-3, grant any of the following remedies, either singly or in combination: (1) economic sanctions, (2) incarceration with or without work release, (3) issuance of a warrant to be executed upon further violation or non-compliance with the order, (4) any appropriate remedy under paragraph (a) or (b) above, applicable to custody or parenting time issues or alimony or child support issues, and (5) any other appropriate equitable remedy.
The burden of proof in a DOMESTIC VIOLENCE hearing is only "by a preponderance of evidence" and not "beyond a reasonable doubt."
Sometimes a family friend can act as a go between for the parties and encourage the complainant to dismiss the charges so family counseling and reunification can take place. A DOMESTIC VIOLENCE complainant can be withdrawn. However, if the police sign a criminal complaint, only the prosecutor can make request the court dismiss a criminal complaint.
About the author Kenneth A. Vercammen is an Edison, Middlesex County, NJ trial attorney who has published 125 articles in national and New Jersey publications on business and litigation topics. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association.
He served as a Special Acting Prosecutor in nine different cities and towns in New Jersey and also successfully handled over One-thousand Municipal Court and Superior Court matters in the past 20 years.
He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on Criminal personal injury matters, Municipal Court trials, and contested Probate hearings. He serves as the Editor of the popular legal website www.njlaws.com.