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  • Kevin P. Hewitt Jr.

October 2019 – New Domestic Violence Restraining Order Cases

The New Jersey Appellate Division has issued two unpublished opinions discussing the granting of a final retraining order (FRO) pursuant to N.J.S.A 2C:25-21 and Court Rule 5:7A.

In J.H. v. C.H., the Appellate Court affirmed or upheld the trial judges issuance of a final restraining order under the following set of facts; Plaintiff was defendant’s uncle; the parties lived together for six or seven years approximately 28 years ago. At the time of the incident giving rise to the FRO, he lived around the corner from the house where his niece resided with his mother. During the incident, plaintiff visited the residence to see his mother. While plaintiff waited outside, he alleged that his niece pulled up in her vehicle and began verbally assaulting him “for no apparent reason.” She entered the residence and came back outside with a piece of lumber and struck his truck with it. Plaintiff returned home, and alleged that, later that day, his niece arrived at his home with her son, who forcefully entered the house and engaged in a physical altercation with plaintiff. His niece began breaking his windows. The niece offered a different version of events. She testified that she had accused her uncle of stealing his mother’s checks and denied striking his truck or breaking the windows of his house. The trial court entered the FRO, finding plaintiff’s testimony credible and noting that defendant acknowledged an ongoing dispute between the parties, which the trial court held supported plaintiff’s fear that defendant could take “further action against him.” The Appellate Court ruled that these facts were sufficient to uphold the granting of a Final Restraining Order.

J.R.M v. S.A.M, the Appellate Division reached a contrary result and reversed the trial court which granted a restraining order. The Appellate Court ruled that the evidence did not support a finding that the plaintiff’s ex-wife engaged in a “course of alarming conduct.” The court noted that she never threatened his safety, security, or privacy by taking photographs of him in public or by sending rude emails. The court further held that the trial court failed to find that a FRO was necessary to protect the ex-husband “from a immediate danger or to prevent further abuse.”

The Appellate Court’s ruling involved the following set of facts; In support of his request for a restraining order, the ex-husband, alleged that the ex-wife, had become upset about the loss of child support for the parties’ son, who had just graduated from high school and had been declared emancipated. The ex-husband alleged that his ex-wife began texting and emailing him despite his requests that she stop. He further alleged that she began taking photos of him and his family while they were out in public. He further alleged that in years prior, she had subjected him to “thousands of harassing and threatening emails.” The appellate Court disagreed with the trial Court and dismissed the Final Restraining Order.

If there is anything to learn from these two cases is that decision on the issuance of a Final Restraining Order is extremely fact sensitive. Mr. Hewitt who has tried many of these domestic violence cases knows that even slight factual nuances can change the outcome of a hearing.

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