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A Domestic Violence/Domestic Abuse Guide for New Jersey Litigants

By Lesley Renee Adams, Attorney at Law   ©2015

What you do not know can hurt you, whether you are the Plaintiff or Defendant you have a very short time, as short as 10 days to protect your rights in New Jersey domestic violence or domestic abuse cases.

Domestic Violence or Domestic Abuse representation is very much an emergency situation. Thus each litigant must be completely candid with his or her attorney so that the facts can come out at the hearing or trial, this kind of case is sensitive to preparation. In New Jersey, because domestic violence or abuse is emergent, there is [generally] no right to discovery, thus it is very much a trial by ambush if you represent the Plaintiff, the Defendant at least has the complaint and alleged charges so that she or he can put forth a defense. If after reading this article you have decide to represent yourself you will know what is expected of you and have an opportunity to prepare. If, on the other hand you decide to retain counsel, you will know how to ask the right questions to find the right attorney for your representation. In either event the gravity and peril to your safety, custody of your children and career are significant enough to require that you consider your options carefully and decide wisely.

Domestic Violence is the crux of many homicides and in others serious bodily injury. Think of it this way, how many Judges want to be on the evening news because he or she did not grant a Final Restraining Order [FRO] and critical injury or a death occurred? The answer is not one. When domestic violence and abuse are wrongfully alleged it may nonetheless result in a Final Restraining Order, unjustly striping a parent of custody, which devastates a parent/child relationship that is otherwise completely loving and vibrant. Unfortunately, the parents that engage in Domestic Abuse do not think about how their actions will ultimately effect how their children engage with loved ones in the future. Conversely, parents that wrongfully allege domestic violence that never occurred but still receive a Final Restraining Order [FRO] cause citizens to lose faith in our system of justice, and also unjustly strip a parent of custody, which devastates a parent/child relationship that is otherwise completely loving and vibrant. Those that falsely allege domestic violence or abuse regretfully do not think about how their actions will ultimately effect how their children engage with loved ones in the future. The key is to recognize that the children are the sufferers in all aspects of Domestic Violence or Domestic Abuse whether actual or wrongfully alleged.

A Domestic Violence or Domestic Abuse complaint usually results in a Temporary Restraining Order [TRO], which is an Ex Parte Application, made by the Plaintiff/Victim to the Municipal or Family Court. Ex Parte means that the other side did not receive notice or have an opportunity to have the Court hear their side of the domestic violence or abuse incident. The relief, obtaining a TRO Temporary Restraining Order [TRO], is deemed emergent and therefore because the restraints are temporary, less than ten days before the defendant receives a hearing date, it is deemed appropriate, the risk of harm to the Plaintiff/Victim or children in a domestic violence or domestic abuse case out weighs the violation of the Defendant's due process rights. It is the easiest way to get child custody in New Jersey in FD (custody) or FM (divorce) cases (First Strike). Is the alleged act of domestic violence or domestic abuse claimed just before or just after FD or FM is filed? Did the alleged act of domestic violence or domestic abuse have anything to do with a child, was a child present, witness or additional victim of domestic violence or domestic abuse. Is a Risk Assessment for the child or children needed?

Domestic Violence / Domestic Abuse is quasi-criminal.

Counsel of Plaintiff/Victim: As Plaintiff's attorney you must know the Elements of the Offense Charged. The criminal statutes define those elements, the difference is that the burden of proof is much lower in Family Court, it is not "beyond a reasonable doubt", but instead it is "by a preponderance of the evidence". Plaintiff's attorney has the burden of proof, which never shifts and therefore Plaintiff will have to take the stand. Plaintiff's attorney can and indeed should use, medical records, phone logs, text messages, and other types of demonstrative evidence to show the victim's point of view and why the Final Restraining Order [FRO] must be granted to prevent future harm from occurring. Were the children witnesses? Domestic Violence usually occurs in the home; logically the only witnesses to the violence are those that are in the home most of the time, i.e. family members. It is a difficult matter to contemplate, asking a child to testify. However, children are the most honest of all witnesses, because they love each parent equally. It would follow that if a matter comes down to he said/she said and the only other witness is a child of the parties, that the child's testimony should be considered. Precautions should be put in place for the child's testimony, indeed you may even consider it being taken in camera, without the parents present. If the Court resists putting the child on the stand, and that testimony is critical to the prosecution, be prepared to take an interlocutory appeal once the Court has ruled or make your record for appeal after the fact, if the Final Restraining Order [FRO] is not granted. If the Plaintiff's attorney does not prove each element of the offense, then you, the Plaintiff/Victim will not meet your burden of proof in your domestic violence or domestic abuse case and there will be no Final Restraining Order [FRO]. The standard of proof "by a preponderance of the evidence" is often defined as more likely than not or the 51%~52% range. By contrast, beyond a reasonable doubt is defined as 99%. If a Final Restraining Order [FRO] is granted in a domestic violence or domestic abuse case, the Plaintiff is entitled to reasonable attorney fees to be awarded by the Court. N.J.S.A. 2C:25-29b4.

Counsel of Alleged Aggressor: As Defendant's attorney you must determine if you were advised of your Miranda Rights? This is important if you are charged criminally at the Municipal or State level for a domestic violence or domestic abuse case in addition to having a TRO issued. In that event you will have to defend yourself in two separate court systems for the same act of domestic violence or domestic abuse which will have both quasi-criminal or criminal charges attached. If the domestic violence offense has a penalty which is "a consequence of magnitude" then you may have to seek the issuance of an interlocutory appeal. State v. Ashford 374 N.J.Super 332. What is a consequence of magnitude? Imprisonment on Municipal Court offense, loss of driver's license, loss of employment, immigration issues, travel restrictions, etc.? At the State level, you could be charged with a 4th ~ 1st degree offense(s). If you are a teacher, doctor, nurse, police officer, military officer, attorney, airline pilot, mechanic, plumber or anyone who has a license from the State, you need to think carefully about how you will proceed since your security clearance and/or license may be in jeopardy, so proceed with caution. In that event, you, as the defendant in a multi-jurisdiction domestic violence or domestic abuse case can either hire two attorneys, one for the Family Court matter and the other for the Criminal Court matter or hire an attorney that can handle both. Remember, unlike a criminal case where you are constitutionally entitled to an attorney, i.e. a public defender, you are not entitled to an attorney in Family Court where the domestic violence or domestic abuse case may also be heard. Additionally, any testimony used in one trial can and in deed, should be used in the other. In fact, even if the Family Court matter is dismissed after trial, if there are criminal charges, you may still be subject to bail restrictions and thus unable to return home, until the criminal charges are dismissed with their companion bail restrictions lifted. Remember a dismissal of the Temporary Restraining Order [TRO] in a domestic violence or domestic abuse case after trail in Family Court does not dismiss the criminal charges even though the facts are the same. Are you, the defendant in a domestic violence or domestic abuse case, in the military or a member of law enforcement? The use of your duty weapon and the like are specifically permitted with some restrictions. See 2C:25-29b. If you are the Defendant and the Final Restraining Order [FRO] is not granted in your domestic violence or abuse case the Plaintiff does not receive counsel fees.

© 2015, Lesley Renee Adams, Attorney at Law


ABOUT THE AUTHOR
Ms. Lesley Adams has practiced law for over twenty years and has appeared in multiple New Jersey Counties. Not only does she have a wealth of experience in family law, but she possesses the compassion you need to help you in this difficult time. Ms. Adams and her dedicated staff understand that each decision in a divorce, made by a client may have significant and long term ramifications. As a result, clients receive thoughtful, responsible, industrious and affordable representation that seeks to provide real solutions to real problems.

She can be contacted by phone at 973-824-1770
or Visit Web Site


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