Can A Restraining Order Be Granted if Domestic Violence Was Violently Provoked By The Plaintiff?
Nov 18, 2015 | Written by: Share|
As an attorney who focuses on family law matters, I have seen many instances where an alleged “victim” violently provokes someone to react violently, and then seeks a restraining order against that person based on the Prevention of Domestic Violence Act.
In matters involving domestic violence, one must be careful to use the Prevention of Domestic Violence Act as a shield rather than a sword. All too frequently, we see abuse of the Act by a litigant attempting to influence a divorce or custody proceeding.
This issue of provocation is unfortunately commonplace, but is lacking case law to guide attorneys or the courts. As such, Judge Jones of Ocean County recently issued an opinion on this specific issue in a case known as R.C. v. R.W.. The Court held:
“a plaintiff’s violent provocation is a relevant factor for the court to consider in whether to grant or deny a final restraining order against a defendant under the two-prong test of Silver v. Silver, particularly when (a) defendant’s reaction to plaintiff’s violent provocation was immediate, instinctive and impulsive rather than planned and premeditated; (b) defendant’s reaction was proportionately no more violent than the actions of plaintiff, whose own violence toward defendant initiated and provoked the altercation; (c) there is insufficient evidence that defendant caused plaintiff substantial harm, and (d) defendant has no significant history of prior violence against plaintiff.”
How did the Court arrive at this conclusion and how does it apply to you?
In R.C. v. R.W., the parties dated for several years and had two young children. They lived together and R.C. worked and provided for the family financially while R.W. stayed home to care for the children while also attending school. As the relationship deteriorated, R.C. wanted R.W. to move out of the home and set out to force her by cutting off and terminating the electric service. R.W. therefore packed the children and their belongings into her car (a car owned by him, but used by her) and left. R.W. did not seek child support or legal action nor did R.C.
During an exchange of the children for parenting time, R.C. forcibly grabbed R.W.’s cell phone from her hands, suspecting her of having a relationship with another man. R.C. called her a “whore” and demanded she return the car and the children’s PlayStation to him. R.C. then picked up a large cinder block and intentionally threw it through the car’s rear window, shattering it. Impulsively, R.W. picked up a smaller brick and threw it, along with the PlayStation, against his car, causing damage. R.C. then threw more bricks through the windows of R.W.’s car.
Notwithstanding that he threw the brick first, R.C. filed a domestic violence complaint seeking custody of the children and a restraining order.
This case presents a classic example of exactly why a domestic violence case can never be appropriately adjudicated in a vacuum without thorough consideration of the context and surrounding circumstances. Such an approach is what fundamentally separates a court of equity from a rubber stamp, and what in this case ultimately resulted in a denial of the plaintiff’s complaint for a final restraining order against the defendant.
An act of domestic violence does not necessarily and automatically mandate a restraining order in every case, but there is a need to protect the plaintiff (victim) from ongoing violence. To determine whether to grant a final restraining order, the court must determine whether the plaintiff has proven, by a preponderance of the evidence, that a predicate act of domestic violence has occurred, and that there is an immediate danger to the person or property warranting a final restraining order.
While non-violent provocation is generally not an acceptable defense to or justification for domestic violence, violent provocation can be considered as such, as illustrated by the court’s decision in the R.C. vs. R.W. case.
Although it is true that all acts of domestic violence are serious, see Brennan v. Orban, 145 N.J. 281, 298 (1996), it is equally true that every request for a restraining order must be considered on its own facts. People are not pre-programmed machines…they are human beings. Even the most non-violent, docile and peace loving of individuals may sometimes be provoked into acting impulsively, immaturely and regrettably, in direct and immediate response to such instigation. When such a situation occurs, same does not automatically mean that in each and every case, the provoked person suddenly poses an unreasonable risk of ongoing violence necessitating the mandatory issuance of a final restraining order (along with its many serious and potentially life-altering legal consequences, such as possible loss of child custody or impairment of future employment and career opportunities).
Diana Fredericks, Esq., is a partner with Gebhardt & Kiefer, PC and devotes her practice solely to family law matters, which includes seeking and defending restraining orders. Contact Ms. Fredericks for a consultation at 908-735-5161 or via email. In 2015, Ms. Fredericks was named to the NJ Super Lawyers Rising Stars list in the practice of family law by Thomson Reuters, and to the 2015 New Leaders of the Bar list by the New Jersey Law Journal.