The issue seems to appear with increased frequency in New Jersey family courts. Due process matters when it pertains to domestic violence. It has everything to do with ensuring those charged with acts of domestic violence are treated reasonably and in accordance with the law.
More than likely, you already know that each and every one of the nineteen predicate acts of domestic violence corresponds to an offense under New Jersey’s criminal statutes. They are each listed in NJSA 2C:25-19.
Not all involve physical acts of violence – and some are harder to prove than others. In some cases, there’s no question that what someone says can be interpreted as an act of domestic violence.
When a party seeks the court’s intervention in a domestic violence case, the goal is to obtain a restraining order. The hope is that restraining the individuals from contact will prevent further occurrences of potential harm – even some that might escalate.
In the meantime, defendants accused of domestic violence should understand the charges made against them. Otherwise, they don’t have the chance to defend them.
Due Process an Issue in this Recent Court Case
The New Jersey Appellate Division decided the matter of E.P.R. v. I.M.R. on July 5, 2019. The court marked the decision as unpublished as it does not represent new law. Additionally, the identities of the parties are masked by using their initials.
The parties were in the process of a divorce when E.P.R. filed a domestic violence complaint. They did not live together when E.P.R. reported an incidence that she felt constituted domestic violence. Her request for a temporary restraining order centered on allegations arising from an argument she had with I.M.R. by way of a text message.
In accusing her soon to be ex-husband of harassment, E.P.R. claimed I.M.R. texted and harassed her by communicating the following:
- Argued about their child contracting conjunctivitis while in the father’s custody.
- Called her derogatory names related to her physical appearance, representing a “way of…attacking me (her)…through my (her) body and image.”
- Texted E.P.R. a nude photograph of her and made fun of her body. Notably, the plaintiff claimed she was unaware that the defendant possessed a naked picture of her. She never consented to I.M.R. taking the picture.
Meanwhile, it remains important the E.P.R.’s domestic violence solely accused the defendant of harassment. It did not list cyber harassment as a predicate act.
Prior Acts of Domestic Violence
When E.P.R. testified in support of her application for a final restraining order (FRO), she cited prior acts of domestic violence. The list of prior offenses alleged physical assault, stalking, forced sex and harassment.
During his testimony, I.M.R. admitted that he argued with the plaintiff via text message. However, he denied he did so with an intent to annoy or annoy the mother of his children. He merely did so to insult her. He disputed the allegations made against him concerning prior acts of domestic violence.
Ultimately, the court issued a bench opinion in the matter. The judge saw fit to define not only the harassment statute but also the cyber-harassment statute.
Once again, the plaintiff did not cite cyber harassment in the domestic violence complaint. Nevertheless, the court’s remarks included commentary stating that amendments to the cyber-harassment statute included “…the posting of a nude photograph or a lewd, indecent or obscene material with an intent to put a person in emotional harm…”
The trial court judge noted that E.P.R. provided credible evidence regarding at least some portions of the allegations regarding the prior acts of domestic violence. Nonetheless, the court did not remark on one of the important elements of every matter involving a request for a final restraining order.
The seminal case of Silver v. Silver requires courts to determine the prospect of future abuse and whether the victim may be in imminent danger.
At the conclusion of the hearing, the judge ruled on the entry of a domestic violence restraining order. It found “by a preponderance of the evidence that there was a violation of the harassment section and the cyber[-]harassment section.”
I.M.R. appealed the entry of the restraining order. For one, E.P.R. never claimed cyber-harassment in her domestic violence complaint. Therefore, the defendant was denied due process in preparing his defense against that particular charge.
The Appellate Division agreed. However, the basis of the restraining order was also premised on harassment. Was that alone reason for issuance of a FRO?
Meanwhile, there was the issue of whether the plaintiff needed protection because she was in imminent danger. While the restraining order will stay in place, the trial court has thirty days to clarify its findings.
Domestic violence issues are cause for enormous concern. No matter which end of the complaint you are, you need the assistance of an experienced family law attorney. Contact the Law Offices of Sam Stoia for a complimentary appointment.