Docket No. A-3273-22
Decided June 11, 2024
Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division of New Jersey reversed the denial of a Final Restraining Order (FRO) after the Trial Court disallowed business records certified by affidavit, requiring the custodian of the records to be present to testify as to authenticity.
In S.G.G. v. J.D.M., S.G.G. and J.D.M. were in a relationship beginning in 2008 and share one child, who was age four at the time of the final restraining order (FRO) hearing. The parties ended the relationship prior to plaintiff giving birth. After the birth of their child, continued co-parenting issues led the parties to appear before the Family Part on matters related to custody and parenting time.
S.G.G. obtained a TRO and subsequently an amended TRO on March 23, 2023. The original TRO alleged J.D.M. sent S.G.G. a text message indicating he had knowledge of her location in real time, which prompted S.G.G. to investigate her car, where she discovered a device she believed was a tracking device. She reported the matter to police. The TRO also referenced a history of domestic violence, including J.D.M. forcing his way into her home and making general threats during their relationship.
During the FRO hearing, S.G.G. recounted the events in the TRO. Importantly, for purposes of this appeal, she testified she went to a mechanic to have her car inspected for tracking devices. The mechanic located a device from a company called LandAirSea Systems, Inc. Plaintiff’s counsel attempted to introduce documents subpoenaed from LandAirSea by the Lakewood Police Department. The records allegedly contained the name, username, email address, phone number, and credit card information regarding the device, that signified ownership, and GPS tracking information. To support the admissibility of those documents as records of regularly conducted activity (business records) pursuant to N.J.R.E. 803(c)(6), counsel submitted a certification by LandAirSea’s custodian of records or an employee “otherwise qualified to administer the records” for the company. The certification stated the records were “true and correct copies[;]” “made at or near the time” by, or from information provided by, “a person with knowledge of th[o]se matters; and . . . made and kept by the regularly conducted business activity as a regular practice.”
The court found the documents inadmissible. It determined a custodian of record must be physically present to certify the records were kept in the ordinary course of business. The trial court ultimately did not grant the FRO and dismissed plaintiff’s complaint.
Plaintiff appealed and the Appellate Division reversed the denial of the FRO and remanded for further proceedings, finding a certification instead of in-person testimony to be sufficient for the business records exception to hearsay.
Business records are used in many aspects of family court, including restraining orders. Hearsay documents are typically not admissible except as provided by the New Jersey Rules of Evidence or by other law. N.J.R.E. 802. One such exception is the records of regularly conducted activity (the business record exception), N.J.R.E. 803(c)(6), which permits: [a] statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make such writing or other record.
To qualify as a business record under N.J.R.E. 803(c)(6), a writing must meet three conditions: it must be made in the regular course of business, within a short time of the events described in it, and under circumstances that indicate its trustworthiness. State v. Kuropchak, 221 N.J. 368, 387-88 (2015). What’s more, the custodian of the records does not have to testify in person for the business records to be valid. A certification is sufficient.
If you have questions about business records, evidence, final restraining orders, temporary restraining orders, parenting time, alimony, child support, divorce, custody, or appeals, contact the experienced domestic violence attorneys at Hark & Hark today.
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