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  • 1.  DV case / analyze civil restraints first?

    Posted 02-17-2018 11:40 PM

    Aside from the concept being implied in Silver, was there an appellate decision (unpublished?) that said a trial court is required to analyze the option of civil restraints and find they're inadequate in a "harassment" domestic violence case before a FRO is entered? If so, anyone recall the name of it?

    Thanks,


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    David Perry Davis, Esq.
    ----------------------------------------------------
    www.FamilyLawNJ.pro
    ----------------------------------------------------
    * * Please note our new address * *
    57 Hamilton Avenue -- Suite 301
    Hopewell, NJ 08525
    Voice: 609-466-1222
    Fax: 609-466-1223



  • 2.  RE: DV case / analyze civil restraints first?

    Posted 02-18-2018 02:29 PM
    I think the answer is no.  N.J.S.A. 2C:25-29(a) precludes the court from considering civil restraints as the first course of action by stating,  "The issue of whether or not a violation of this act occurred . . . shall not be subject to mediation or negotiation in any form". Also, once a DV complaint is filed, a civil restraint order can't be entered under an FV docket number. But this doesn't  prohibit parties from entering into civil restraints after an FV complaint has been dismissed by the victim.  The civil restraint order can then be entered under an FD or FM docket number.  If the FV is not dismissed, only after an FRO has been denied can the court consider entering a common law restraining order (civil restraints). See Mishlen v. Mishlen, 305 N.J. Super. 643 (App. Div. 1997) (upholding trial court's order preventing the aggressor from exposing the two children of the marriage to her abusive boyfriend). In other words, prior to the FRO hearing, the court may suggest but not compel civil restraints.
    ___________________________

    WILLIAM N. SOSIS, ESQ.
    SOSIS LAW, LLC
    Rochelle Park Municipal Complex
    151 West Passaic Street, 2nd Floor
    Rochelle Park, New Jersey 07662
    Tel: (201) 655-6400
    Fax: (201) 781-7855





    Original Message


  • 3.  RE: DV case / analyze civil restraints first?

    Posted 02-19-2018 05:22 PM
    I think I've got it.

    NB v. TB, 297 N.J. Super. 35 (App.Div. 1997) https://scholar.google.com/scholar_case?case=12826676208129260993 : ... The matrimonial court has equitable power to remove a spouse from a marital home on a proper showing even if the home is owned by both as tenants by the entirety. See Degenaars v. Degenaars, 186 N.J. Super. 233, 235, 452 A.2d 222 (Ch.Div. 1982); Babushik v. Babushik, 157 N.J. Super. 128, 129, 384 A.2d 574 (Ch.Div. 1978); S. v. A., 118 N.J. Super. 69, 70, 285 A.2d 588 (Ch.Div. 1972); Roberts v. Roberts, 106 N.J. Super. 108, 109-10, 254 A.2d 323 (Ch.Div. 1969). Disputes which do not rise to the level of domestic violence can and should be addressed and resolved by the Chancery Division, Family Part, of the Superior Court without necessarily relying on the Domestic Violence Act. Accordingly, we reverse and vacate the domestic violence order against the husband.

    Most recently cited in MC v. GT (unpublished, 2018), https://scholar.google.com/scholar_case?case=6545444784996047505 "At the trial's conclusion, the judge expressed concern about both parties' credibility and, ultimately, concluded the evidence failed to support a finding of domestic violence ... The judge, however, invoked her "equitable powers" and entered a restraining order in Monica's favor.

    There is no doubt that P.J.G.'s holding, particularly when compared to N.B., upon which it was based, permits only the imposition of restraints ­ based on evidence heard in the failed domestic violence action ­ in another pending case between the parties. In N.B., the restraints were entered in a pending matrimonial action, and in P.J.G. the restraints were entered in Patricia's favor and against Paul in Paul's cross-complaint.  . . . There being no other pending action, not even N.B. or P.G.S. permitted the restraints entered here.



    Now, applying it here, where (in short form) a DV case was filed after divorce / custody negotiations failed and the defendant was specifically found to be more credible as to plaintiff's allegations of past abuse and the trial court found that the predicate act did not (contrary to plaintiff's assertions) involve physical contact and that no FRO was needed to protect plaintiff from immediate danger, but entered a FRO, finding (in directly contrast to its earlier statements as to credibility) that defendant had twisted plaintiff's arm in the past during arguments as part of a "classic domestic violence relationship."

    Should be an interesting appeal.

    Thanks for looking into it.


    David Perry Davis, Esq.
    ----------------------------------------------------
    www.FamilyLawNJ.pro
    ----------------------------------------------------
    * * Please note our new address * *
    57 Hamilton Avenue -- Suite 301
    Hopewell, NJ 08525
    Voice: 609-466-1222
    Fax: 609-466-1223







    Feb 18, 2018 2:29 PM 
    William N Sosis, Esq 
     
    I think the answer is no.  N.J.S.A. 2C:25-29(a) precludes the court from considering civil restraints as the first course of action by stating,  "The issue of whether or not a violation of this act occurred . . . shall not be subject to mediation or negotiation in any form". Also, once a DV complaint is filed, a civil restraint order can't be entered under an FV docket number. But this doesn't  prohibit parties from entering into civil restraints after an FV complaint has been dismissed by the victim.  The civil restraint order can then be entered under an FD or FM docket number.  If the FV is not dismissed, only after an FRO has been denied can the court consider entering a common law restraining order (civil restraints). See Mishlen v. Mishlen, 305 N.J. Super. 643 (App. Div. 1997) (upholding trial court's order preventing the aggressor from exposing the two children of the marriage to her abusive boyfriend). In other words, prior to the FRO hearing, the court may suggest but not compel civil restraints.

    ___________________________

    WILLIAM N. SOSIS, ESQ.

    SOSIS LAW, LLC
    Rochelle Park Municipal Complex
    151 West Passaic Street, 2nd Floor
    Rochelle Park, New Jersey 07662
    Website: www.sosislaw.com
    E-Mail: [email protected]
    Tel: (201) 655-6400
    Fax: (201) 781-7855



    Original Message