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Recent Decision Provides Guidance on Final Restraining Orders in Domestic Violence Cases

Oct 27, 2016 | Written by: William W. Goodwin, Jr., Esq. |

In A.M.C. v. P.B., an appeals court considered an appeal by an estranged wife of a denial of her request for the issuance of a Final Restraining Order (FRO) and the dismissal of her Complaint under the New Jersey Prevention of Domestic Violence Act (PDVA). For the uninitiated, Domestic Violence cases comprise two stages. Initially, the plaintiff files a Complaint under the PDVA and seeks a Temporary Restraining Order (TRO). This might be handled over the phone or addressed in open court depending on the circumstances. In either case, the Judge decides whether or not to issue a TRO based solely on the evidence presented by the victim. If a TRO is issued, law enforcement personnel are to serve it upon the defendant. Among other things, the TRO sets forth a court date, usually 7-10 days later, where the Court is to hear testimony from both parties, and perhaps other witnesses, and then decide whether or not to issue an FRO, which can and often is "permanent" in duration. The A.M.C. case deals with this second stage.

By way of background, there is a 2006 opinion in the Silver case which held that in order to issue an FRO, a trial court had to conclude the following:

  1. The defendant committed an act that constituted an offense prohibited by the PDVA. Common examples include harassment, assault and terroristic threats; and
  2. An FRO is necessary to protect the victim from future acts or threats of violence.

A.M.C. focuses on the second of these two prongs.

In A.M.C., the defendant was a police officer who was accused of assaulting his wife on two separate occasions. At the FRO hearing, the trial Judge heard testimony from both parties and reviewed photos depicting bruising to the plaintiff's arm and neck. The Judge concluded the defendant had assaulted his wife, thereby satisfying the first prong under Silver. However, the Judge declined to issue an FRO and dismissed the Complaint, finding the issuance of such an order was not necessary to protect the plaintiff from future acts of violence. The Judge appeared to base the conclusion on several factors: the short duration of the marriage (one year), the lack of a history of substantiated violence prior to the events in question, the lack of children between the parties, and a procedural snafu that led to the defendant not being served with, and not even being made aware of the existence of, the TRO until a few days before the FRO hearing. As to that last point, the Judge reasoned that the defendant's failure to contact the plaintiff for several weeks after she left him (immediately after the last assault) despite his lack of knowledge of the TRO, supported the conclusion that he had no intentions of bothering her anymore.

The Appellate Court in A.M.C. reversed the trial Judge and directed the issuance of a FRO. The Appellate Court made clear the trial court had clearly misapplied the two-prong standard articulated in Silver by failing to consider, among other things, the "inherently violent nature" of the acts committed by the defendant that led to the plaintiff/victim immediately fleeing their home and seeking refuge in a shelter. More specifically, the Court held when the underlying act involves the use of physical force and violence, the decision to issue an FRO "is most often perfunctory and self-evident".

From the A.M.C. opinion, one should conclude that the second prong in Silver is going to be relevant only in those cases where the acts are not inherently violent. For example, in the common situation where the underlying claims involve harassment or other extremely annoying -but not assaultive - conduct, the Court will have to carefully weigh all of the other factors, most notably the prior history of violence between the parties. It is in those cases where context becomes critical.

Please contact the attorneys at Gebhardt & Kiefer, PC at 908-735-5161 if you have any questions about this decision or the area of Domestic Violence under New Jersey statutory and case law.


William W. Goodwin, Jr., Esq. is certified by the NJ Supreme Court as a Matrimonial Attorney. He is also qualified as a Mediator in the field of Family Law under the New Jersey Court rules, and he is trained in Collaborative Divorce. Contact Mr. Goodwin at 908-735-5161 or via email.