I tried to reply last night, but the server must have been down for a while.
First off, you would need to do something immediately, and only have 15 total certification pages to do it, so it’s got to be snappy. You will want to brief this issue.
The PDVA was enacted in furtherance of New Jersey’s "strong policy against domestic violence." Cesare v. Cesare, 154 N.J. 394, 400 (1998). If a predicate offense is proven, the court must then assess "whether a restraining order is necessary, upon an evaluation of the fact [or]s set forth in N.J.S.A. 2C:25–29(a)(1) to –(6), to protect the victim from an immediate danger or to prevent further abuse." J.D. v. M.D.F., 207 N.J. 458, 475–76 (2011) (quoting Silver v. Silver, 387 N.J.Super. 112, 127 (App.Div.2006). Thus, the plaintiff in a domestic violence complaint must prove not only that the defendant committed one of the enumerated acts of domestic violence, but also that an FRO is necessary for the plaintiff’s protection.
The specific factual basis for any FRO is not significant, however, because prior to entering such an order, a finding must have been made that the order and the specific relief entered were needed for your client’s protection. Knowing that she would be in danger without such a protective order, the motion court should not have directed your client to allow greater contact with her Abusive ex.
In my opinion, it matters not that the TRO was displaced by Civil restraints. This is a very common direction for a conflict-adverse chronic victim of domestic violence to take. If anything, it arguably underscores their tremendous fear of confrontation.
Neither should the court have ordered the parties to work out contested issues through mediation. Although a court rule and directive preclude mediation of certain issues when an FRO is in place, they do not address the situation where a preexisting PSA requires both parental communication and mediation. Rule 1:40–5 covers complementary dispute resolution programs in Family Part matters, and requires court staff to refer appropriate cases to such programs. Rule 1:40–5(a)(1), Mediation of Custody and Parenting Time Actions, precludes mediation "if there is in effect a preliminary or final order of domestic violence entered...." Rule 1:40–5(b)(1), Mediation of Economic Aspects of Dissolution Actions, states: "[N]o matter shall be referred to mediation if a temporary or final restraining order is in effect in the matter pursuant to the [PDVA.]" See New Jersey Family Division, Directive 11–09 (Nov. 6, 2009), available at https://www.judiciary.state.nj.us/directive/2009/dir_11-09.pdf (instructing staff that mediation in child welfare cases is never appropriate if one party has an active temporary or final restraining order). In Lerner v. Laufer, 359 N.J.Super. 201, 216, 819 A.2d 471 (App.Div.), certif. denied, 177 N.J. 223, 827 A.2d 290 (2003), we stated in the context of a dismissal of a legal malpractice case where the attorney limited his representation of a matrimonial client to the review of a mediated PSA, "Mediation is now an accepted process in the resolution of family disputes except where an order has been entered under the [PDVA]." (emphasis added).
O.P. v. L.G-P., 440 N.J. Super. 146, 154©55 (App. Div. 2015).
Once again, arguably, there should be no distinction in reality between a case of domestic violence, with or without a restraining order in place. A Civil restraint, in my opinion, should be presumptive of the existence of domestic violence.
I was certified by The Family Institute back in 1995 to do domestic violence counseling after a 14-16 week program. I mention this solely because sending a case where there is domestic violence to mediation is insufficiently general. If anyone is to mediate a case like this conscientiously, they must be capable of professionally assessing the situation prior to even commencing a mediation. See Family Mediation: Screening for Domestic Abuse, 23 Fla. St. U. L. Rev. 43 (1995-1996).
I seriously doubt that attendance at a two-day CLE seminar will in any way suffice.
There is also the issue of exactly what sort of domestic violence we are considering. There are certainly degrees. Once again, a case for expert assessment, rather than just plunging in using a shuttle approach, for example, inasmuch as appropriate solutions to a wide variety of cases like this are not found with one-size-fits-all solutions.
One of these days, someone might be in a position to file a Brandeis brief on the issue, since there is ample learned literature available on various sides of the fence. See, e.g. Making Mediation Work in a Domestic Violence Case, 17 Fam. Advoc. 34 (1994-1995); cf. Dangers of Mediation in Domestic Violence Cases, The, 8 Cardozo Women’s L.J. 235 (2001-2002)
Hope this helps somewhat.
------------------------------
Curtis Romanowski Esq.
Senior Attorney - Proprietor
Metuchen NJ
(732)603-8585
------------------------------
Original Message:
Sent: 09-09-2015 09:59
From: Curtis Romanowski
Subject: Mtn for Recon?
I tried to reply last night, but the server must have been down for a while.
First off, you would need to do something immediately, and only have 15 total certification pages to do it, so it’s got to be snappy. You will want to brief this issue.
The PDVA was enacted in furtherance of New Jersey’s "strong policy against domestic violence." Cesare v. Cesare, 154 N.J. 394, 400 (1998). If a predicate offense is proven, the court must then assess "whether a restraining order is necessary, upon an evaluation of the fact [or]s set forth in N.J.S.A. 2C:25–29(a)(1) to –(6), to protect the victim from an immediate danger or to prevent further abuse." J.D. v. M.D.F., 207 N.J. 458, 475–76 (2011) (quoting Silver v. Silver, 387 N.J.Super. 112, 127 (App.Div.2006). Thus, the plaintiff in a domestic violence complaint must prove not only that the defendant committed one of the enumerated acts of domestic violence, but also that an FRO is necessary for the plaintiff’s protection.
The specific factual basis for any FRO is not significant, however, because prior to entering such an order, a finding must have been made that the order and the specific relief entered were needed for your client’s protection. Knowing that she would be in danger without such a protective order, the motion court should not have directed your client to allow greater contact with her Abusive ex.
In my opinion, it matters not that the TRO was displaced by Civil restraints. This is a very common direction for a conflict-adverse chronic victim of domestic violence to take. If anything, it arguably underscores their tremendous fear of confrontation.
Neither should the court have ordered the parties to work out contested issues through mediation. Although a court rule and directive preclude mediation of certain issues when an FRO is in place, they do not address the situation where a preexisting PSA requires both parental communication and mediation. Rule 1:40–5 covers complementary dispute resolution programs in Family Part matters, and requires court staff to refer appropriate cases to such programs. Rule 1:40–5(a)(1), Mediation of Custody and Parenting Time Actions, precludes mediation "if there is in effect a preliminary or final order of domestic violence entered...." Rule 1:40–5(b)(1), Mediation of Economic Aspects of Dissolution Actions, states: "[N]o matter shall be referred to mediation if a temporary or final restraining order is in effect in the matter pursuant to the [PDVA.]" See New Jersey Family Division, Directive 11–09 (Nov. 6, 2009), available at https://www.judiciary.state.nj.us/directive/2009/dir_11-09.pdf (instructing staff that mediation in child welfare cases is never appropriate if one party has an active temporary or final restraining order). In Lerner v. Laufer, 359 N.J.Super. 201, 216, 819 A.2d 471 (App.Div.), certif. denied, 177 N.J. 223, 827 A.2d 290 (2003), we stated in the context of a dismissal of a legal malpractice case where the attorney limited his representation of a matrimonial client to the review of a mediated PSA, "Mediation is now an accepted process in the resolution of family disputes except where an order has been entered under the [PDVA]." (emphasis added).
O.P. v. L.G-P., 440 N.J. Super. 146, 154©55 (App. Div. 2015).
Once again, arguably, there should be no distinction in reality between a case of domestic violence, with or without a restraining order in place. A Civil restraint, in my opinion, should be presumptive of the existence of domestic violence.
I was certified by The Family Institute back in 1995 to do domestic violence counseling after a 14-16 week program. I mention this solely because sending a case where there is domestic violence to mediation is insufficiently general. If anyone is to mediate a case like this conscientiously, they must be capable of professionally assessing the situation prior to even commencing a mediation. See Family Mediation: Screening for Domestic Abuse, 23 Fla. St. U. L. Rev. 43 (1995-1996).
I seriously doubt that attendance at a two-day CLE seminar will in any way suffice.
There is also the issue of exactly what sort of domestic violence we are considering. There are certainly degrees. Once again, a case for expert assessment, rather than just plunging in using a shuttle approach, for example, inasmuch as appropriate solutions to a wide variety of cases like this are not found with one-size-fits-all solutions.
One of these days, someone might be in a position to file a Brandeis brief on the issue, since there is ample learned literature available on various sides of the fence. See, e.g. Making Mediation Work in a Domestic Violence Case, 17 Fam. Advoc. 34 (1994-1995); cf. Dangers of Mediation in Domestic Violence Cases, The, 8 Cardozo Women’s L.J. 235 (2001-2002)
Hope this helps somewhat.
------------------------------
Curtis Romanowski Esq.
Senior Attorney - Proprietor
Metuchen NJ
(732)603-8585
------------------------------
Original Message:
Sent: 09-08-2015 20:09
From: Anne Cralle
Subject: Mtn for Recon?
If it were my case, I would be proactive and put together as part of a motion to suspend mediation: 1) a detailed affidavit from the client outlining the history of abuse and her thought processes and reasons for not involving the police or seeking a TRO on each occasion and her thought processes and reasons for settling for the civil restraints on the one occasion where she did go so far as to obtain a TRO; 2) find out if there were ever any witnesses to the incidents she lists in her affidavit and see if they will also do affidavits and 3) figure out if there is a way to get any medical documentation of the abuse into the record and if it is advisable/worthwhile to do so - you will likely have hearsay objections to counter and you will also want to be sure the client understands the risks involved in opening the door to potential discovery of her full medical treatment history by providing parts of it; and 4) I would research the literature out there on the not uncommon phenomenon of DV victims not pursuing FROs. I researched this a couple of years ago for a friend who was getting an awful deal in terms of custody and visitation because the judge did not find her DV history claims credible since she had never obtained an FRO. Because, you know, the only proof of DV is an FRO (sorry for the sarcasm but this situation still galls me). Anyway, there are some great scholarly articles out there from various fields. I would include a request in the motion that the court take judicial notice of the articles (look at NJRE on judicial notice and relevant case law). I would likely include at least a couple of law journal articles up front since, as a lawyer, I found myself more drawn to them and perhaps a judge would feel the same. Though anything else you can find from psychologists or even law enforcement would be helpful.
There is probably more that could be done but that's off the top of my head. The bottom line is I would get a lot of compelling information in written form in front of a judge about why mediation is not appropriate in this case.
I wouldn't wait until the day of mediation with a client who suffers from PTSD due to abuse. She shouldn't be subjected to having to mediate with her abuser, in the same room or even the same building. And nobody can know how the mediator will deal with an "on the spot" request.
If the motion fails, then I would request that only her attorney would have to appear at mediation and have the client on call to be available by phone. But by phone only to her attorney and the mediator. No putting her on speaker phone to hear him or for him to hear her.
If I can help, please feel free to contact me off list via email. As you might have surmised, despite the moves in this direction, I am no fan of family law mediation where DV is implicated.
[email protected]
Anne
Anne Cralle, Esq.
Law Office of Anne Cralle, LLC
276 Main St.
Metuchen, NJ 08840
Sent from my iPad