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In New Jersey, victims of domestic violence are afforded protections under the New Jersey Prevention of Domestic Violence Act (N.J.S.A. 2C:15-19; hereinafter, “PDVA”). Victims seeking protection under the PDVA must have a certain relationship with the alleged perpetrator of domestic violence, which certain relationships include without limitation spouses, household members (or former household members), co-parents that were never married and/or dating relationships. In order to obtain protections (i.e., a Temporary Restraining Order; hereinafter “TRO”) under the PDVA, one must demonstrate probable cause that one or more of the 19 criminal acts governed by the PDVA was committed. TROs are granted rather liberally, with public policy understandably deferring to err on the side of caution as it relates to victims seeking protection under the PDVA. Once a TRO is obtained, there must a final hearing (a trial) to determine whether the TRO should be converted into a Final Restraining Order (“FRO”). In order to obtain an FRO, a victim must meet the two-pronged standard set forth in the case of Silver v. Silver, 387 N.J. Super. 112, 126 (App. Div. 2016), which specifically requires a victim to demonstrate by a preponderance of the evidence (meaning more likely than not) that:
- Defendant committed one of the predicate acts specified under the PDVA; and
- An FRO is necessary to prevent further abuse.
Pursuant to the PDVA, “domestic violence” is defined as the occurrence of one or more of 19 criminal acts, including harassment (N.J.S.A. 2C:33-4), which is most-commonly alleged, facially extremely broad, and specifically defined as:
. . . a petty disorderly person’s offense if, with purpose to harass another, he/she:
- Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively course language, or any other manner likely to cause annoyance or alarm; or
- Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
- Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
Unfortunately, yet oftentimes inevitably, individuals that are going through a divorce are frequently involved in domestic disputes as well, some of which rise to the level of domestic violence, as defined by the PDVA, and some of which do not, rather amount to what are known as domestic contretemps (e.g., cursing and yelling at one another, arguing and shouting, etc.). As a result of the COVID-19 pandemic and nationwide stay-at-home orders that became ubiquitous by April 2020, and in turn, couples being “forced” to remain in constant close proximity to his/her partner 24/7, New Jersey saw a further uptick in domestic violence incidents and complaints in the past year.
It is relatively common, and especially unfortunate, for an individual going through a divorce (or planning to get divorced) to disingenuously seek protections under the PDVA (i.e., obtain a TRO) to gain an upper-hand in the divorce litigation. For example, if one parent involved in a divorce is seeking sole custody and/or a disproportionate majority of parenting time on the basis that the other parent is unfit, said parent’s pursuit of such custody and parenting time determinations can be bolstered by the existence of a TRO, regardless of veracity. The NJ Supreme Court has acknowledged this issue, and more specifically, has opined:
- “. . . that in the area of domestic violence, as in some other areas in our law, some people may attempt to use the process as a shield rather than as a sword. The judicial system must once again rely on the trial courts as the gatekeeper.” State v. Hoffman, 149 N.J. 564, 585 (1997)
- “. . . courts must be wary of letting a complainant use the Domestic Violence Act merely to gain an advantage in a matrimonial proceeding. However, each case depends on its facts and must be examined carefully.” Cesare v. Cesare, 154 N.J. 394, 416 (1998)
- Courts must be “especially vigilant” when evaluating whether an individual acted with the requisite purpose to harass in cases involving the interactions of a couple in the midst of a breakup of their relationship. J.D. v. M.D.F. 207 N.J. 458, 487 (2011)
The Supreme Court’s recognition of this issue, i.e., individuals attempting to use the PDVA as a “shield rather than as a sword”, unfortunately does not prevent it from still happening. The crime of harassment, as defined by N.J.S.A. 2C:33-4(a), is noticeably ambiguous and open for interpretation. One is guilty of harassment if he/she purposely communicates at “extremely inconvenient hours” – of course, not everybody has the same sleep schedule or definition of “convenient hours”. Some people perceive 7AM to be very early – others wake up at 3AM every day. Similarly, one is guilty of harassment if he/she purposely communicates “in offensively course language” – of course again, not everybody uses the same vocabulary. Many people curse regularly. Many people do not curse at all. Many married couples curse and argue using “offensively course language” frequently – for many, that is the nature of their relationship, hence why the Supreme Court in Cesare expressly guided that each case depends on its specific facts and circumstances and must be examined accordingly.
Consequently, and in sum, regardless of whether one is (a) seeking protections as a victim under the PDVA, or on the other hand, (b) defending against allegations made by an individual seeking protection under the PDVA, having a knowledgeable and zealous advocate to represent one’s interests in the domestic violence realm (be it as a victim or defendant), especially in instances where there is parallel matrimonial litigation taking place, is important and invaluable. Proceeding self-represented is a difficult task and almost always ill-advised, especially when there is an intertwinement of domestic violence allegations and an ongoing divorce proceeding. The law in this regard is nuanced and fact-specific, as explained and referenced hereinabove, and the implications stemming from an FRO hearing (i.e., a domestic violence trial pursuant to the PDVA) are far-reaching and particularly crucial and relevant for individuals engaged in simultaneous matrimonial litigation, thus heightening the importance and need for individuals involved in such dual-track litigation to be represented by knowledgeable and fervent counsel.