No Reasonable Fear Means No FRO

K.M. v. M.D. involved a Final Restraining Order (“FRO”) sought by the Plaintiff after the Defendant, Plaintiff’s estranged Wife placed a GPS tracking device on his vehicle and showed up at his residence several times without his knowledge. The matter was heard in the Superior Curt of New Jersey, Essex County. After testimony was presented, the trial judge determined that the placing of a GPS device on the Plaintiff’s vehicle did constitute the predicate criminal act of stalking N.J.S.A. 2C:12-10. Under the Prevention of Domestic Violence Ace (“PVDA”), N.J.S.A. 2C:25-19(a), in order to establish a claim under the act, the alleged actor must have committed one of certain enumerated acts, stalking being one of said qualifying acts. Additionally, in order to give rise to a final restraining order, the Plaintiff must demonstrate an actual fear and that the order is necessary to prevent harm to the Plaintiff at the hands of the Defendant. Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). The parties had a 10 year marriage, during which one child was born and which ended in a contentious divorce. The Defendant admitted placing the GPS device on the husband’s vehicle but indicated that it was only for the purpose of knowing her daughter’s whereabouts during parenting time with the Plaintiff. However, Plaintiff recounted multiple specific incidents in which the Wife would send photos of his car in specific locations minutes after he left the locations, would call others asking what the Plaintiff and child had been doing there, send text messages admonishing him regarding his whereabouts and the like. Plaintiff indicated that the messages were alarming and he went to his wireless provider and phone manufacturer to determine whether there was something in his phone that was enabling the Defendant to track him. Plaintiff testified that the Wife’s behavior was impacting his life, relationship with his children and his sleep and he also testified to prior acts of physical violence by the Defendant. The Defendant indicated that a hurricane force wind cause the Plaintiff’s truck door to slam on his foot and that she had no involvement in the incident. Defendant further indicated that the Plaintiff had previously driven his vehicle, with their daughter as a passenger, after he had consumed alcoholic beverages. The trial judge held that significant evidence was missing including any of the alleged alarming texts from the Defendant to Plaintiff and any medical testimony indicating his sleep was impacted by the Defendant’s behavior. After hearing testimony from both parties, the trial judge determined that although the Defendant had clearly been stalking the Plaintiff, there was no history of domestic violence between the parties and a final restraining order was not needed for the Plaintiff’s safety. The trial judge dismissed the Plaintiff’s request for a final restraining order and the underlying temporary restraining order (“TRO”) was dissolved. The Plaintiff appealed and the Appellate Division affirmed the decision of the court below. If you are facing or seeking a final restraining order, call The Darling Law Firm, LLC at 973-584-6200 to obtain the results you seek. For more information about restraining orders, divorce or other family law matters, visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.

FRO Issues After Terroristic Threats In Courthouse

A.M.C. v. A.M.A. involved a Final Restraining Order (FRO) between unmarried parties with a 13 year old son in common. As the parties had a relationship at one time, the matter fell within the Prevention of Domestic Violence Act (PVDA) (N.J.S.A. 2C:25-17 to -35). There was a substantial amount of litigation between the parties and a court proceeding in that matter took place wherein it was decided that the parties would participate in reunification therapy for the child and Defendant to rebuild their relationship. Immediately thereafter, the Defendant is reported to have shouted vindictive statements at the Plaintiff and threatened that he would kill her. The Plaintiff sought a temporary restraining order (TRO) which was granted that day. The TRO complaint alleged harassment (N.J.S.A. 2C:33-4) and terroristic threats (N.J.S.A. 2C:12-3). On March 15, 2018, a FRO was entered by the Family Part judge after testimony was presented by both parties including testimony about past physical abuse and verbal abuse by Defendant against Plaintiff. The Family Part judge found the Plaintiff to be credible in her testimony and refused to accept the Defendant’s proffer that the Plaintiff only filed the domestic violence complaint to gain an advantage in the ongoing custody battle. The Defendant also included that the parties live an hour apart and the Plaintiff has sole custody of the child as a reason that a FRO was unnecessary but the court felt that the Plaintiff had a reasonable fear of the Defendant. It was on the grounds of distance and the fact that the parties have no ongoing relationship that the Defendant appealed. The Appellate Division looked to the two-part analysis required under the PVDA pursuant to Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). First, the Plaintiff must prove, by a preponderance of the evidence, that at least one of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred. In this case, the act was harassment. Second, the court must find that a restraining order is necessary to protect the victim based on the factors included in N.J.S.A. 2C:25-29(a)(1) to – 29(a)(6). The Appellate Division determined that, although the parties were separated by some distance, they would be interacting as a result of the reunification therapy and protection was reasonable. The Appellate Division affirmed. If you are in fear and seeking a restraining order or defending against one, you should speak to an experienced attorney to determine what your rights are under the PVDA and whether you are likely to succeed in your case. To learn more about restraining orders visit DarlingFirm.com or for representation now, call us at 973-584-6200 to schedule a consultation. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Final Restraining Order Issues Upon Multiple Acts of Harassment

C.L.H. v. T.F.H. is about Defendant’s appeal of a final restraining order (FRO) entered against him upon his estranged wife’s request that the Court enter and order for same under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant appealed on four points: (1) Ineffective assistance of counsel; (2) allegations of trial court error in allowing “authentication” of a perceived no contact order; (3) a conflict between testimony and the checked “No previous acts of Domestic Violence” section; and (4) lack of evidence regarding intent or predicate acts. Under the PDVA, Plaintiff was entitled to protections, as long as the other criteria were met, based on her marriage to the Defendant. The remaining criteria, set forth in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), were also satisfied. First, the evidence demonstrated, by the requisite preponderance of the evidence standard, three acts that constituted harassment, N.J.S.A. 2C:33-4(c), a predicate act under N.J.S.A. 2C:25-19(a). Specifically, (1) the Defendant entered Plaintiff’s car while she was in church and removed an item; (2) the Defendant sent Plaintiff a text asking when she would return from a trip that he had never been notified she was taking; and (3) discovered and drove to the location Plaintiff was staying to see whether she was there. During questioning in this regard, the trial judge found the Defendant’s explanations to amount to admissions of guilt committed with the clear intent to harass the Plaintiff. With regard to the second prong of Silver, the trial judge determined that, in light of confrontations between the parties, the Plaintiff’s fear of the Defendant was reasonable and a FRO was required to protect the Plaintiff from the Defendant. The Appellate Division determined the trial judge exercised sound discretion in rendering the opinion below and affirmed, also noting that ineffective assistance of counsel is inapplicable to the matter at hand. This blog is for informational purposes only and not intended to replace the advice of an attorney.

Final Restraining Order (FRO) Cannot Be Granted Without Factual Findings

L.S. sought a final restraining order against J.P. under the Protection of Domestic Violence Act (N.J.S.A. 2C:25-17 to -34). L.S. and J.P. were both married to others but had an affair with each other for approximately 1 year before their spouses became aware. L.S. attempted to terminate the relationship in approximately May 2013 and J.P. continued to contact her. L.S. sought a final restraining order (FRO) against J.P. The FRO was granted in the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County. In L.S. v. J.P., J.P. appealed focusing on the court's finding that he had committed the act of harassment (N.J.S.A. 2C:33-4). J.P. maintained that the relationship continued, in a pattern of arguments and reconciliations, up until the time L.S. filed the charges against him. The court below focused only on the messages from L.S. to J.P. did not make findings regarding messages J.P sent to L.S. The court below made no findings about the credibility of the parties. Most importantly for J.P., the court failed to make the required finding that J.P. intended to harass or annoy L.S. In Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006), the court set forth a two step inquiry. First it must be established by the Plaintiff that a predicate act of domestic violence occurred against a person protected by the act. Thereafter, it must be determined that a restraining order is necessary to protect the victim from immediate danger or further abuse. The Appellate Division reversed and remanded for factual findings supporting the decision. If you are charged with domestic violence or you are seeking a final restraining order against an abuser, there are specific burdens of proof for both parties in proving or disproving the charges making it critical that you obtain experienced criminal defense counsel to represent you in such matters. For more information regarding domestic violence, restraining orders, assault, battery and other criminal law issues in NJ visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.