Friday, January 4, 2019

Final Restraining Order Trial Requires Opportunity to Cross-Examine

V.M. v. A.M., involved petition for a Final Restraining Order (FRO), under the Prevention of Domestic Violence act (N.J.S.A. 2C:25-17 to -35), based on an amended Temporary Restraining Order (TRO). Plaintiff initially claimed her husband committed the crimes of sexual assault, harassment and stalking against her but then dismissed all but the sexual assault claims prior to the parties' hearing. Both parties offered testimony but the court gave neither the opportunity to cross-examine the other. While the plaintiff claimed sexual assault, the defendant maintained that the parties had consensual sex multiple times over the course of the weekend in question in spite of ongoing marital difficulties. The trial judge's ruling found both parties credible but found that the plaintiff failed to prove her allegations by a preponderance of the evidence. Plaintiff appealed on the basis that the judge must find one party credible and the other not credible, rather than finding both credible, and that the judge did not give the parties the opportunity for cross-examination. The Appellate Division held that a court can find both credible but that the opportunity for cross-examination is required in order for the trial court to fully assess the credibility of the parties. The matter was reversed and remanded for a new hearing. In a domestic violence hearing, in order to obtain a FRO, the alleged victim must demonstrate the following factors as set forth in Silver v. Silver , 387 N.J. Super. 112 (2006) before a FRO may issue: 1. The parties' were involved in a domestic or dating relationship; 2. The defendant committed a predicate act of domestic violence under N.J.S.A. 2C:25-19; and 3. A restraining order is needed to protect the alleged victim from the defendant. For more information about domestic violence or restraining orders, visit DarlingFirm.com or, if you are a victim or accused of domestic violence, call now to schedule a consultation. This blog is for informational purposes only and not intended to replace the advice of counsel.

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