Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
In any determination of whether a Final Restraining Order (“FRO”) should be granted, the court must follow a two-step analysis from Silver v. Silver under the Prevention of Domestic Violence Act (“PDVA”). Under the two-step Silver analysis, the court must determine: (1) that the alleged victim has proven by a preponderance of the credible evidence that one of the prerequisites (predicate acts) set forth in N.J.S.A. 2C:25-19(a) has occurred; and (2) that the restraining order is required to protect the alleged victim from further acts or threats of violence. The second prong will always be assessed based on an analysis of all of the relevant facts – a “totality of the circumstances” analysis.
N.M.Q. testified that on the day that M.A.T. had accused her of smoking his cigarettes, he became so angry that he demanded she leave the house. M.A.T. also directed his anger towards N.M.Q.’s adult daughter, who was there doing laundry. He hit the washing machine and said he did not want anyone using it. N.M.Q. left shortly after with her daughters. The day before, M.A.T. and N.M.Q. had gotten into a fight about purchasing a toy for their daughter. He spit in N.M.Q.’s face and pushed her in the forehead with his index finger. He did the same later that night and prevented her from calling the police by taking her cell phone.
Unlike most domestic violence cases, the complainant in this instance had actual proof of the defendant’s harassing conduct in addition to the plaintiff’s own testimony. She provided the court with text messages, voicemail recordings, and audio tapes of the alleged harassment. The appellate court disagreed with the trial court who held that 140 combined texts and calls in a twenty-four-hour period were justified by M.A.T.’s concern for the welfare of N.M.Q. and the parties’ daughter because of her past mental health diagnosis. The appellate court found this to be an unconvincing argument because the record was devoid of any suggestion that N.M.Q.’s conduct posed a threat to herself or others. Only M.A.T. threatened suicide as a result of the relationship ending. M.A.T. also did not proffer expert testimony that would have aided the court in understanding N.M.Q.’s diagnosis, and he did not testify.
N.J.S.A. 2C:33-4 defines harassment as occurring when an individual, with the purpose to harass another person: (a.) Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm; (b.) Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or (c.) Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
The appellate court also believed that the trial judge’s recollection and interpretation of the testimony was not supported by the actual record, and that through N.M.Q’s unrefuted proofs, she was able to meet her burden by a preponderance of the evidence establishing that M.A.T. had the intent to harass her, thus satisfying the first prong of Silver.
The court held that N.M.Q. was entitled to an FRO as a matter of law because she satisfied the two-step test in Silver. The plaintiff established that defendant committed the predicate act of harassment as defined in N.J.S.A. 2C:33-4(a) and (c). Having found that the predicate act of harassment had indeed occurred, and the first prong of the Silver analysis satisfied, the appellate court reasoned that the second prong of Silver was satisfied as well because there is indeed a need to protect her from further abuse. The court opined that there is a need to protect N.M.Q. from further abuse because of M.A.T.’s language in the 140 texts and voicemails, his persistent and intense reaction to N.M.Q.’s departure, a years-long history of at least verbal if not physical abuse, and as N.M.Q. and her daughter testified, M.A.T.’s presence on at least two occasions near N.M.Q.’s home despite the TRO.
At Hark & Hark we represent clients in Chancellery Court for family matters like the present case involving Temporary and/or Final Restraining Orders. We vigorously defend our clients by fighting to either provide them with the benefits and protection of a Final Restraining Order or argue against their necessity in other instances. We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing or would like to obtain a restraining order against somebody, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Salem counties.