DOCKET NO. A-0631-22
Decided December 29, 2023
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished decision, the Appellate Division of New Jersey reversed a conviction for contempt of a restraining order after finding that defendant’s communications in the co-parenting application “Our Family Wizard” (OFW) were deemed to be not harassment.
In State v. R.L., Defendant and R.W. are divorced and have one daughter, L.L. The parties entered a custody and parenting time agreement, which was annexed to and incorporated into the marital settlement agreement, in February 2015. The parenting time agreement permitted the parties to “utilize [OFW] as a means of communicating and exchanging information including, but not limited to, requests for exchange/trade of parenting time (and responses thereto).” OFW is a web-based application that allows parents to coordinate parenting time and custody issues. As it related to travel, the agreement also provided that “[b]oth parties shall communicate in writing any travel plans they have with the child, setting forth flight/train/auto route details and the location of the hotel or residence where the child shall stay overnight, [ten] days prior to the scheduled vacation/travel period.”
An FRO was entered against defendant on August 12, 2016. The latest amended FRO was entered on August 1, 2019, which included a provision restraining R.L. from having any form of contact or communication with R.W., except for “non-harassing communication concerning minor child via [OFW]” and permits the parties to “send non-harassing texts in the case of an emergency with minor child only.”
On November 9, 2021, R.W. told defendant via OFW that she planned to travel to Austin, Texas to attend her father’s funeral with their daughter. R.W. also stated, “Thanksgiving [d]etails to be finalized soon and travel details to following in the next OFW message.” Two days later, defendant sent three messages expressing his concern that their daughter would be in Texas for one week and would miss an extended period of schooling due to the school’s COVID-19 policy. In the first message, sent at 7:49 a.m., defendant expressed his condolences to R.W. and proposed that L.L. “stay in New Jersey,” not “miss school” and “make up” parenting time on her return from Texas. Defendant did not consent to L.L. missing three weeks of school and asked R.W. to reconsider her decision. He also asked R.W. to provide the flight information.
In his second message, sent eight minutes later, defendant iterated his request that R.W. not take L.L. out of school from “11/14 – 12/7.” He then stated if R.W. proceeded, he “need[ed] make up parenting time for 11/9 – 11/21, and 11/23 6 p[.]m[.] to p[.]m[.], and 11/16 6 p[.]m[.] – 9 p[.]m[.] and 11/15 5 p[.]m[.] – 8 p[.]m[.].” Defendant renewed his request for R.W. to reconsider taking L.L. to Texas.
In his third message, sent at 9:16 a.m., defendant repeated his request that R.W. reconsider because the school’s ten-day COVID policy would require her to “stay out of school an additional ten days for a total of twenty days out of school.” Further, “as a courtesy,” defendant pasted the language that would be set forth in the proposed order to show cause (OSC) that he intended to file if R.W. did not agree to leave their daughter in New Jersey. A copy of a blank OSC was sent to R.W.
The trial court found defendant partially credible, and that the threat to file litigation was not covered by the ATRO, and there was no emergency, finding defendant in contempt of the ATRO.
Defendant appealed, and the Appellate Division found that the State did not meet its burden beyond a reasonable doubt of finding Defendant in contempt of a restraining order. Instead, the Appellate Division found the record replete of any action not covered by the restraining order, as the messages themselves showed defendant communicating in a manner consistent with the ATRO. There did not need to be an emergency for defendant to communicate through OFW and the threat to file an OSC did not arise to the level of harassment to violate the ATRO. The Appellate Division reversed the conviction.
The case is important to understand that restraining orders are amended often to allow communication through co-parenting applications like Our Family Wizard or App Close as long as the communication is regarding the children. Here, the Appellate Division found that the communications subject to the violation were covered by the ATRO and a conviction was erroneous.
If someone mentions that they have a restraining order against you, or you have been served telephonically or physically with a TRO or FRO, or if you have been charged with contempt of a restraining order, contact the experienced attorneys at Hark & Hark today to ensure you have adequate representation and your liberties are protected so you do not wind up violating.
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