Plaintiffs Have to Prove a Predicate Act of Domestic Violence and That the Restraining Order Is Necessary for Their Protection from Future Acts of Domestic Violence
DOCKET NO. A-1269-21
Decided April 6, 2023
Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
In a recent published decision, the Appellate Division of New Jersey reversed the denial of a Final Restraining Order after plaintiff proved a predicate act of domestic violence and a history of domestic violence with defendant choosing not to testify.
In J.D. v. A.M.W., Plaintiff J.D. and defendant A.M.W. had a non-marital romantic relationship and have a child in common (M.W., born in 2011). The parties lived together with their son for a year, then shared custody of him until December 8, 2015, when he came home from a visit with defendant with a black eye and cut above his eye. Following a hearing, the Family Part granted plaintiff sole custody of M.W. in June 2018. During this period the parties agreed upon certain civil restraints which, among other things, limited contact between plaintiff and defendant exclusively to child related matters.
Plaintiff’s application stems from an August 29, 2021 incident. Plaintiff and defendant were at a soccer field attending their son’s game. It was defendant’s day to have supervised parenting time with M.W., then ten years old. At some point during the day, plaintiff realized defendant had gone through her stroller to find and remove their son’s sneakers. She asked for the sneakers back and instructed defendant not to touch her belongings. Defendant refused and began to argue with her. He chest-bumped her, causing her to stumble backwards. M.W. witnessed the incident while standing behind his mother, holding on to her shirt. Defendant attempted to grab M.W., but plaintiff blocked him, telling defendant to “back off” and to stop acting like “an animal.” Plaintiff beckoned defendant’s father, who supervised defendant’s parenting time, to help calm the situation. At the FRO hearing, plaintiff testified that she was fearful of defendant during this incident.
Plaintiff testified to a history of domestic violence in her relationship with defendant, which began in 2009. During the relationship, they often broke up because he would “get in [her] face, shove [her] or hit [her,]” but the break ups were brief. Plaintiff testified to several specific acts of domestic violence which occurred during the relationship. Plaintiff testified that the violence began with him aggressively walking into her and then escalated over time.
The Court concluded plaintiff’s testimony was credible. Defendant did not testify. The Court found plaintiff proved a predicate act of domestic violence but did not demonstrate a need for the restraining order because of the civil restraints in place prior as well as the third party used for custody issues. The FRO was denied.
Plaintiff appealed and the Appellate Division reversed, finding plaintiff had a need for the FRO, as demonstrated by her uncontroverted testimony and the Judge’s findings of a need to protect her with the civil restraints and third party contact. The decision was reversed and an FRO was granted.
The case is important to understand plaintiff have to prove a predicate act of domestic violence and that the restraining order is necessary for their protection from future acts of domestic violence. Here, in her uncontroverted testimony, plaintiff demonstrated both a predicate act of domestic violence and a significant history of domestic violence. Without her testimony being challenged, the Appellate Division found that this was grounds to warrant an FRO, even after the trial court found that it was not necessary.
If you have a Temporary Restraining Order (TRO) against someone else or against yourself, contact the experienced attorneys at Hark & Hark today. There are several things attorneys can do to bolster your credibility and damage the credibility of the other party. Do not wait until court because if you are the defendant and an FRO is put against you or if you are the plaintiff and your TRO is dismissed it is significantly more difficult to overturn the result! Contact Hark & Hark today! We help clients with domestic violence, FROs, TROs, prenups, divorce, custody, child support, alimony, adoptions and more.
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