DV in NJ: Re-thinking Permanency of Restraints and Examining Newer Causes of Action
New Jersey Law Journal
The New Jersey Prevention of Domestic Violence Act (PDVA) (N.J.S.A. 2C:25-17 et seq.) provides two forms of relief to a victim of domestic violence: (1) civil relief, by obtaining a restraining order; and (2) criminal relief, by which a victim may file a criminal complaint. Here, we take a closer look at the civil side—the Final Restraining Order.
A restraining order is an order issued by the court pursuant to a complaint under the PDVA to protect a victim of domestic violence. Upon a finding at a hearing that an act of domestic violence occurred, the judge will determine whether to issue a Final Restraining Order (FRO) and what types of additional relief will be granted. An FRO is issued upon a showing that the victim was subjected to domestic violence by someone with whom the victim has a domestic relationship as defined by the PDVA. The victim must prove that a predicate act of domestic violence occurred and a restraining order is necessary to protect the victim from immediate danger or future acts of domestic violence. The standard of proof at a FRO hearing (“preponderance of evidence”) is lower than that required in a criminal trial (“beyond a reasonable doubt”), even though the sanctions for violating a FRO are criminal sanctions.
Recently Enacted Causes of Action That Ease a Finding of Domestic Violence
The PDVA outlines 19 criminal offenses that constitute a predicate act of domestic violence. (N.J.S.A. 2C:25-19).
Criminal coercion, a recent addition, is a threat of some kind of harm in order to compel someone to act in a way they would otherwise not. It includes threatening to inflict bodily harm on anyone, accuse anyone of an offense; expose a secret that might cause a person to be hated, ridiculed, or impair that person’s business reputation or credit; withhold action as an official; start a strike or boycott unless in the course of a negotiation; testify, provide or withhold information; or any other act that is calculated to harm someone’s health, safety, calling, business, financial status, personal relationship, reputation or career. (N.J.S.A. 2C:13-5).
With the inclusion of criminal coercion, the defendant’s threat of harm to a child, intended to coerce, or harass the victim into a particular reaction, can be applied to protect the child. While the FRO can only be granted to the victim against the defendant, the child may be included as a “protected person.”
On Dec. 5, 2016, the PDVA was amended to add cyber-harassment to the list of criminal offenses that may constitute domestic violence. A person commits the crime of cyber-harassment if, while making a communication in an online capacity via any electronic device or through a social networking site and with the purpose to harass another, the person: (1) threatens to inflict injury or physical harm to any person or the property of any person; (2) knowingly sends, posts, comments, requests, suggests or proposes any lewd, indecent or obscene material to or about a person with the intent to emotionally harm a reasonable person or place a reasonable person in fear of physical or emotional harm to his person; or (3) threatens to commit any crime against the person or the person’s property. (N.J.S.A. 2C:33-41).
According to the Administrative Office of the Courts’ 2015 Report on the PDVA, 5,490 FROs were granted in New Jersey for the 2015 calendar year. While criminal coercion and cyber-harassment add additional protection for domestic violence victims, they will undoubtedly increase the number of issued FROs. This makes the FRO’s permanency that much more important and necessary to address.
Permanency of Restraints and the Final Restraining Order
In New Jersey, a very important aspect of the FRO is that it does not expire. It is permanent, which makes it incumbent upon the defendant to return to court if the intent is to vacate or modify the FRO. In contrast, FROs in various other states contain sunset provisions, which require that they be renewed or reissued after the passage of time. While NJ law places the burden on the defendant to return to court in order to vacate or modify an FRO, other states put the onus on the plaintiff to justify the continuation of the order.
For instance, in California, a domestic violence restraining order is issued for a period of not more than five years, at which point the order may be renewed, upon the request of the plaintiff, for either an additional five years or permanently, without a showing of any further abuse since the issuance of the original order. If there is no expiration date included in the order, the duration of the order will be for three years from the date of issuance. (Ann. Cal. Fam. Code §6345).
In New York, an order of protection will last from two years (or five years if aggravating circumstances exist or the alleged conduct is in violation of a valid order of protection), but may also be extended for “good cause” or consent of the parties even if no new incidents of abuse of occurred. (NY Fam Ct Act §842).
While there is no expiration date, the Appellate Division has held that the duration of an “injunctive order should be no longer than is reasonably required to protect the interest of the injured party.” Trans American Trucking v. Ruane , 273 N.J. Super. 130, 133 (App. Div. 1994). The legislature intended to protect the victims, not punish the person who committed the act of domestic violence. Carfagno v. Carfagno , 288 N.J. Super. 424, 434 (Ch. Div. 1995). However, in reality, it is very difficult to remove a FRO in New Jersey. N.J.S.A. 2C:25-29(d) requires a showing of “good cause” to dismiss a FRO. To determine whether “good cause” exists, a court must consider 11 factors (Carfagno, 288 N.J. Super. at 435).
The overriding question remains: is the legislative intent satisfied given the permanent and punitive nature of the FRO? Presumably, we can all agree that domestic violence should not be condoned, the victim must be protected, and the perpetrator should be punished accordingly. But does this “one-size-fits-all” lifetime punishment always fit the crime? Any violation of a FRO is considered a criminal offense and can result in a jail sentence. (N.J.S.A. 2C:29-9). Even if a violation is merely alleged, the law requires a mandatory arrest. (N.J.S.A. 2C:25-31). And while a first violation may not result in jail time, a second violation carries a mandatory 30 days in jail. (N.J.S.A. 2C:25-30).
FROs can also have an impact, sometimes unexpected, on one’s livelihood, by preventing an individual from obtaining certain employment and professional licenses. Under the New Jersey Uniform Enforcement Act (NJUEA), licensing boards can investigate the activities of licensees. A board may refuse to admit a person to a licensing exam or may refuse to issue, suspend or revoke a board-issued license if the licensee has been convicted of or engaged in acts constituting any crime or offense involving moral turpitude. N.J.S.A.45:1-21. Moreover, a judgment of conviction, a plea of guilty, or any other disposition of alleged criminal activity is deemed a “conviction.” The NJUEA applies to many professional boards including accountancy, architects, dentistry, engineers, marriage and family therapists, medical examiners, nursing, optometrists, pharmacy, real estate commission, court reporting, veterinary medical examiners, and chiropractic examiners, to name a few.
Issues to Consider
The permanent nature of New Jersey FROs begs the question: should New Jersey follow the course that several other states have taken regarding the term of restraining orders and requirements to extend? Instituting a sunset clause for the expiration of FROs is one idea. However, doing so would place the onus on the victim of domestic violence to make an application to the court to seek extensions or even permanency of a protective order. Such a requirement may undermine the intent of the PDVA, by requiring the victim to incur additional costs, both legal and emotional, to maintain the protections previously granted under the act.
In New York, while an order of protection expires, the petitioner is allowed an opportunity to extend for good cause. In 1972, the legislature gave the Family Court the discretion to extend an order of protection “upon the showing of special circumstances.” Molloy v. Molloy , 137 A.D.3d 47, 51 (2d Dep’t 2016). However, victims were discouraged from applying for an extension and rarely pursued one, typically waiting for the recurrence of an incident of abuse to apply for a new order of protection. Id. Consequently, in 2010, the legislature lowered the standard. While the burden is still on the petitioner to prove “good cause” exists to extend the protection beyond the expiration date, the legislature recognized that victims should not have to wait for the commission of another offense before seeking an extension. Id. at 51-52 (citing Assembly Mem. in Support, Bill Jacket, L. 2010, ch. 325 at 8). In interpreting what “good cause” entails, the legislative intent is key—to prevent reoccurrences of domestic violence. Id.
Mitigating factors such as the viciousness of the original DV acts, the professional harm to the defendant, the effect on children and the level of protection necessary to protect the victim are a few of the numerous potential factors that a court may need to consider in assessing the appropriate duration of an FRO. The potential lifetime burdens on the restrained party against whom an FRO is entered will always need to be balanced against the goal of protection of the victim. But arguably, it may be time to follow the lead of other progressive jurisdictions and contemplate whether the permanent duration of an FRO should be reconsidered.
Reprinted with permission from the January 23, 2017 issue of The New Jersey Law Journal. © 2016 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.