Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
If the court makes a ruling that the evidence has failed to prove a violation of the act, and the parties are not credible, the court then cannot impose the restraints authorized by law regardless of the evidence.
In this New Jersey Appellate Division approved for publication decision the Appellate Division reversed the trial courts placing of a final restraining order against the defendant requested by the plaintiff pursuant to New Jersey prevention of Domestic Violence Act, NJSA 2C: 25–17 through 2C:25–35.
The key issue in this appeal was the judges questioning of both the plaintiff’s and defendant’s credibility throughout the hearing. The Appellate Division deferred to the trial judge’s comments concerning the parties credibility when the court commented in its concluding remarks that she did not believe either party. The trial court nevertheless “invoked it’s equitable power” and and imposed the restraining order against the defendant regardless of the judge’s actual comments that she questioned each parties credibility and did not necessary believe any domestic violence took place.
The Appellate Division looked to the very words of the statue which only authorized entry of the final restraining order so long as the plaintiff, the complaining party, sustains his/her burden of proof, that being the civil burden of proving the case “by a preponderance of the evidence” that the domestic violence took place. In addition, the Appellate Division ruled that each element of the domestic violence act must be proven and only then can the trial judge act within the intent of the domestic violence act and invokes it’s equitable powers as the trial court to order the FRO.
However, in this case the appellate/ reviewing court found that the trial judge could not use it equable powers to impose the restraining order against the defendant when the court had already determined that the lack of credibility of each party was a fatal defect of plaintiff’s case to meet her evidentiary burden of proving each element of the Domestic violence act.
If the trial judge states the parties have not matter evidentiary burden, then the final restraining order cannot be imposed.
Jeffrey S. Hark, Esq.
609-471-1959. Cell
856-354-0050 Office