NJSBA Family Law Section

Client obtained a TRO pro se. At the final hearing defendant showed up with counsel and client requested an adjournment. Adjournemntwas granted but at that appearancere the court modified the TRO and granted defendant unsupervised parenting time. I believe this was procedurally incorrect as she requested and an adjournment to obtain counsel and that request was granted. I now want the court to undo the decision for unsupervised parenting time. Is my initial hunch correct? ------------------------------ T. Sandberg Durst Esq. Trenton NJ (609)436-9079 ------------------------------

Sandy -

As I know you know, DV FRO hearings have a 10 day turn around because restraints are being imposed on the defendant / accused.  It's therefore not at all uncommon for judges to modify the restraints when either party (but especially a plaintiff) requests an adjournment.  Otherwise, they are extending the time that the restraints are in place beyond the limited period authorized by the statute, and we all know that the rescheduling of a DV trial doesn't generally happen quickly.

However, when the issue is parenting time, the court is required to order a risk assessment when requested by a plaintiff who has made a prima facie case that DV occurred unless the court finds that the request was "arbitrary or capricious." (See 4.14.4 below, and the entire section generally).

If your client has specific (preferably verifiable beyond just allegations) concerns as to unsupervised parenting time, you'd need to file an "appeal" of the TRO, seeking review before the judge who entered it.   (I wish they called it a "de novo review" or something -- I know two people, one a pro se and one an attorney, who wasted time trying to file it with the Appellate Division.  Although called an "appeal", it's heard in the trial court).  The argument in the "appeal" would be that the judge erred in denying the request for a risk assessment (regardless of whether this occurred during the initial TRO hearing or during an appearance over an adjournment).

The DV procedures manual is excellent and has a wealth of information including sample formshttp://www.judiciary.state.nj.us/family/dvprcman.pdf  .I can shoot you a copy of a sample that was successful (dismissing a TRO that never should have been entered as a matter of law as the allegations didn't constitute DV .... new hearing officer); I'm not going to post it to the list since it's a DV matter. 

4.14.4 Parenting Time and Risk Assessments
The custodial parent can request an assessment of risk of harm to the child or children posed by unsupervised parenting time with the defendant prior to the entry of an order for parenting time. When this request is noted as a desired form of relief on the Complaint/TRO, or when the request is made either at the emergent or final hearing, a risk assessment must be ordered unless, on the record, the judge finds the request to be arbitrary or capricious and thus denies the request.

------------------------------
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222
http://www.FamilyLawNJ.pro
------------------------------

Original Message:
Sent: 02-04-2015 18:54
From: T. Sandberg Durst
Subject: [M]odifying TRO after promise litigant requested adjournment to get counsel

Client obtained a TRO pro se. At the final hearing defendant showed up with counsel and client requested an adjournment. Adjournemntwas granted but at that appearancere the court modified the TRO and granted defendant unsupervised parenting time. I believe this was procedurally incorrect as she requested and an adjournment to obtain counsel and that request was granted. I now want the court to undo the decision for unsupervised parenting time. Is my initial hunch correct?

------------------------------
T. Sandberg Durst Esq.
Trenton NJ
(609)436-9079
------------------------------

Thanks, David.

Sandy

Sent from my iPhone


Original Message------

Sandy -

As I know you know, DV FRO hearings have a 10 day turn around because restraints are being imposed on the defendant / accused.  It's therefore not at all uncommon for judges to modify the restraints when either party (but especially a plaintiff) requests an adjournment.  Otherwise, they are extending the time that the restraints are in place beyond the limited period authorized by the statute, and we all know that the rescheduling of a DV trial doesn't generally happen quickly.

However, when the issue is parenting time, the court is required to order a risk assessment when requested by a plaintiff who has made a prima facie case that DV occurred unless the court finds that the request was "arbitrary or capricious." (See 4.14.4 below, and the entire section generally).

If your client has specific (preferably verifiable beyond just allegations) concerns as to unsupervised parenting time, you'd need to file an "appeal" of the TRO, seeking review before the judge who entered it.   (I wish they called it a "de novo review" or something -- I know two people, one a pro se and one an attorney, who wasted time trying to file it with the Appellate Division.  Although called an "appeal", it's heard in the trial court).  The argument in the "appeal" would be that the judge erred in denying the request for a risk assessment (regardless of whether this occurred during the initial TRO hearing or during an appearance over an adjournment).

The DV procedures manual is excellent and has a wealth of information including sample formshttp://www.judiciary.state.nj.us/family/dvprcman.pdf  .I can shoot you a copy of a sample that was successful (dismissing a TRO that never should have been entered as a matter of law as the allegations didn't constitute DV .... new hearing officer); I'm not going to post it to the list since it's a DV matter. 

4.14.4 Parenting Time and Risk Assessments
The custodial parent can request an assessment of risk of harm to the child or children posed by unsupervised parenting time with the defendant prior to the entry of an order for parenting time. When this request is noted as a desired form of relief on the Complaint/TRO, or when the request is made either at the emergent or final hearing, a risk assessment must be ordered unless, on the record, the judge finds the request to be arbitrary or capricious and thus denies the request.

------------------------------
David Perry Davis, Esq.
112 West Franklin Avenue
Pennington, NJ 08534
Voice: 609-737-2222
Fax: 609-737-3222
http://www.FamilyLawNJ.pro
------------------------------

Original Message:
Sent: 02-04-2015 18:54
From: T. Sandberg Durst
Subject: [M]odifying TRO after promise litigant requested adjournment to get counsel

Client obtained a TRO pro se. At the final hearing defendant showed up with counsel and client requested an adjournment. Adjournemntwas granted but at that appearancere the court modified the TRO and granted defendant unsupervised parenting time. I believe this was procedurally incorrect as she requested and an adjournment to obtain counsel and that request was granted. I now want the court to undo the decision for unsupervised parenting time. Is my initial hunch correct?

------------------------------
T. Sandberg Durst Esq.
Trenton NJ
(609)436-9079
------------------------------