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Civil Restraints Option in non-Matrimonial FV?

  • 1.  Civil Restraints Option in non-Matrimonial FV?

    Posted 11-30-2015 01:02 PM

    I am looking for suggestions regarding any ways of resolving an FV matter when the parties are not and never have been married. I represent the Plaintiff who seeks an FRO due to her former boyfriends acts of stalking, with a recent past history of domestic violence. Defendant's counsel has reached out regarding some way to resolve this short of an FRO. Obviously I need to be assured that my client is protected.

    Questions: Can civil restraints be entered into in an FV matter, and if so, would the Court retain jurisdiction for enforcement?

    Any thoughts?

    ------------------------------
    C. Megan Oltman Esq.
    Princeton NJ
    (609)947-0784
    ------------------------------


  • 2.  RE: Civil Restraints Option in non-Matrimonial FV?

    Posted 11-30-2015 01:08 PM

    Unfortunately, No.  You do not even have an FD docket to utilize since dating relationship.

    The defendant will just have to enter into a consent order FRO

     

    Alice M. Plastoris, Esq.

    82 Speedwell Avenue

    Morristown, New Jersey 07960

    973-538-7070

    973-538-7088 Fax

    [email protected]

     




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  • 3.  RE: Civil Restraints Option in non-Matrimonial FV?

    Posted 11-30-2015 04:15 PM


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  • 4.  RE: Civil Restraints Option in non-Matrimonial FV?

    Posted 11-30-2015 04:17 PM
    If the parties have children you can open an FD and file the civil restraints order under the FD.  Civil restraints orders can never be filed under the FV.  

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  • 5.  RE: Civil Restraints Option in non-Matrimonial FV?

    Posted 11-30-2015 04:45 PM
    Years ago I had a wonderful family part judge in Middlesex who accepted that it may be an equal protection violation to deny unmarried/unchildrened parties the ability to resolve with civil restraints - he ordered an FD file to be opened and the matter was accordingly resolved.

    The good old days! 

    PATRICIA BOMBELYN, ESQ.
    Perez & Bombelyn, P.C.

    732 214 1166 telephone

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  • 6.  RE: Civil Restraints Option in non-Matrimonial FV?

    Posted 12-01-2015 09:01 AM
    The equal protection argument is interesting. As we recall from law school (and which I'd probably have forgotten were I not briefing it now in Kavadas / DL case), to discriminate between parties when neither strict scrutiny (suspect classification such as race, alienage, or national origin or infringment of a fundamental right) nor intermediate scrutiny (gender, or sexual orientation) is applicable, the State needs to show a rational basis for the disctintion.

    Married couples or those with a child in common can enter into FD or FM restraints rather than proceeding with an FV case. What rational basis could exist to deny the protection of civil restraints to people who don't qualify for an FD / FM order? As we all know, there are so many reasons that a legitimate victim may want to pursue this. Maybe the ex is a cop or military or needs security clearence and it'll kill the goose that lays the golden egg to saddle him/her with a DV order in light of the absurdly harsh consequences we now heap on (how often have we heard "I don't want to destroy her/his life, I just want her/him to stay away from me"), or there's a concern about proofs being sufficient.

    I haven't had cause to test it, but I've always thought that one should be able to apply for a civil restraints without passing a test as to having children or property in common -- it's seeking equitable / injunctive relief and, there should not be "a wrong without a remedy." So, if someone can make a showing that an injunction prohibitting contact is appropriate even if the higher threshold applicable to entry of a DV order isn't present, there must be some court where it can be pursued, no?

    It would be a chancery matter - injunctive relief. And -- Rule 4:3-1 is pretty clear -- "Actions in which the plaintiff's primary right or the principal relief sought is equitable in nature, except as otherwise provided by subparagraphs (2) and (3), shall be brought in the Chancery Division, General Equity..." Then sub-section (3) says "All civil actions in which the principal claim is unique to and arises out of a family or family-type relationship shall be brought in the Chancery Division, Family Part. Civil family actions cognizable in the Family Part shall include all actions and proceedings provided for in Part V of these rules ... and all other actions and proceedings unique to and arising out of a family or family-type relationship."

    I know there's a trial level case (which I can't recall) that says you need to have either children in common or joint property / joined finances to establish FD juridiction, I've always thought that it was bad law. If there is sufficient jurisdiction to establish a DV TRO under the DVA (to file an action "under Part V of these rules"), that should be enough to obtan an FD order -- and, in the unusual case where even that isn't established, there should be jurisdiction to enter an order under a general chancery case.

    Between the equal protection argument and the Rule interpretation argument, courts shoudn't deny an application to enter civil restraints by consent. (Related - the concerns about appointing counsel -     D.N. v. K.M., 216 N.J. 587 (2014) - would be addressed by civil restraints being imposed even without consent when, for instance, there was some misconduct, but not sufficient [or no Silver v. Silver showing] for a full-blown FRO with all its collateral consequences).

    Or so I think.... Perhaps one of us needs to have an application to enter civil restraints denied for lack of FD jurisdiction and can take the issue up (or Judge Jones isn't doing anything else this week and can take this on).


    <x-sigsep>

    David Perry Davis, Esq.
    ----------------------------------------------------
       www.FamilyLawNJ.pro
    ----------------------------------------------------
    112 West Franklin Avenue
    Pennington, NJ 08534
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  • 7.  RE: Civil Restraints Option in non-Matrimonial FV?

    Posted 12-01-2015 09:35 AM

    Excellent points David.

     




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  • 8.  RE: Civil Restraints Option in non-Matrimonial FV?

    Posted 11-30-2015 04:55 PM

    Kristy I thought that would that only be if the parties have children in common? These parties each have children from prior relationships, but none together.

    Thanks.

     




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  • 9.  RE: Civil Restraints Option in non-Matrimonial FV?

    Posted 11-30-2015 05:14 PM
    Yes, children in common. I should have specified. 

    Sent from my iPhone



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  • 10.  RE: Civil Restraints Option in non-Matrimonial FV?

    Posted 11-30-2015 05:23 PM

    You can only use an FD docket number if there are children in common between the parties and/or if there is support.

    You appear to have a dating relationship with no children in common, child support or spousal support.

    You can't use an FD - even though some judges will try to do it, the court computer will not take it because it does not fit into the parameters of the type of cases under the FD docket.

    Technically, under the Rules any family type matter must be docketed under the miscellaneous docket but the Clerk's office will usually look at you like you have 2 heads.

    One Judge in Morris when he was sitting DV would have the parties do a consent agreement or order with the civil restraints and attach it to the dismissal order in the FV matter and if the agreement was violated it satisfied the predicate act of another DV TRO filing.

     

    Alice M. Plastoris, Esq.

    82 Speedwell Avenue

    Morristown, New Jersey 07960

    973-538-7070

    973-538-7088 Fax

    [email protected]

     




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  • 11.  RE: Civil Restraints Option in non-Matrimonial FV?

    Posted 12-01-2015 09:36 AM

    Alice I will try the approach of attaching a consent agreement to the dismissal order.

     




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  • 12.  RE: Civil Restraints Option in non-Matrimonial FV?

    Posted 12-01-2015 11:02 AM

    ​Happened to me in Union County; after much bureaucratic nonsense, we used an "FO" docket number to put through the civil restraints.


    Richard Outhwaite, Esq.
    Dughi, Hewit &  Domalewski, P.C.

    Fax: 908 272-3219
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