Judges Undertaking Remote Domestic Violence Trials Are Faced with Challenges in Conducting These Adequately
Docket No. A-4085-19
Decided May 11, 2021
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent published decision the Appellate Division of New Jersey reversed a trial court entry of a Final Restraining Order (FRO) after the trial judge conducted a video conference hearing, did not allow defendant adequate time between being served the TRO and the trial, and perpetuated a variety of errors during the trial.
In D.M.R., Plaintiff and defendant had a dating relationship that had ended, and on May 20, 2020, defendant went to plaintiff’s house at 12:30 a.m. to discuss a dog, whose ownership is unclear, but that had been part of both of their lives. Each party related a different version of what happened during the incident that night. On May 21, a municipal court judge issued an ex parte temporary restraining order (TRO) against defendant.
At the initial FRO hearing in the Family Part on May 28, 2020, the court determined that plaintiff wished to proceed and advised defendant of the consequences of an FRO. The Family Part judge heard the case telephonically, and both parties appeared pro se, also telephonically. The court asked defendant if she wished to proceed with a trial that day. She stated that she did. The court then asked defendant whether she wanted to consult an attorney or retain one to represent her. She first responded she did not, and she wanted to proceed with the trial that day.
The judge said he would proceed with the trial. However, thereafter, it became clear that defendant had never been served with a copy of the TRO complaint. The court attempted to reschedule the hearing for June 17, but defendant informed the court that she had military duties on weekdays during the month of June and was unsure whether she would be able to call the court to attend the trial. The judge asked whether defendant was available the very next morning, May 29, and she stated she was. The judge then confirmed that the court would email both parties an invitation to appear at the hearing via Zoom. He asked the parties if they had used Zoom before, and defendant stated that she had not.
The following day the parties appeared via Zoom. Plaintiff testified that he and defendant had a prior dating relationship and around 12:30 a.m. on May 20, 2020, he awoke and heard his dog barking and his brother running down the steps. Then, he heard his mother on the phone with the police and heard banging on his window and front door. Plaintiff saw defendant outside his house with four men and two vehicles, and defendant was repeatedly calling his phone. He also testified that a man was knocking on his window. Plaintiff further testified that his mother told him defendant was the first one to knock. Plaintiff’s mother testified after, despite being right next to plaintiff.
Defendant’s story differed from Plaintiff’s.
The Judge entered an FRO against the Defendant, finding she committed harassment by showing up at late hours to harass plaintiff. Defendant appealed.
The Appellate Division reversed, first finding that the Court should have provided more time to defendant being that she was served with the TRO the day before trial. Even if she wanted to proceed, because she was not represented, this was improper and violated due process. What’s more, plaintiff’s mother should have been sequestered and not next to plaintiff during his testimony. This is to discourage collusion and expose contrived testimony. Also, when questioning the defendant, the judge seemed to be advocating for plaintiff, which is improper. Lastly, the Judge failed to details facts and reasoning as to plaintiff’s need for an FRO. For these reasons, the matter was reversed remanded for a new trial.
It is clear that Judges undertaking remote hearings and trials, especially in domestic violence, are faced with challenges in conducting these adequately. Nonetheless, the parties to FRO trials are still afforded certain rights and the Judge must abide by the law and rules of evidence. If you believe the trial judge wrongly decided your FRO or TRO, contact Hark & Hark immediately. There are strict time requirements for appeals and motions for reconsideration.
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