Does Conduct Involving Parenting Time Disputes Constitute Harassment Under the Domestic Violence Statute?
Docket No. A-0771-19
Decided March 16, 2021
Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division of New Jersey reviewed whether defendant’s conduct towards plaintiff involving parenting time disputes constituted harassment under the domestic violence statute, warranting a Final Restraining Order (FRO).
In C.C., The parties were married in 2006 and have three daughters: twins A.C. and T.C. (Tina), born in 2008; and R.C., born in 2011. The parties separated on December 1, 2015, when plaintiff filed her first domestic violence complaint against defendant and was issued a temporary restraining order (TRO). Plaintiff claimed defendant struck her in the head after she refused his sexual advances, causing injuries to her eardrum and jaw that required medical attention.
On December 8, 2015, represented by their respective attorneys in a nondissolution action, the parties entered into a civil consent order that: dissolved the TRO; imposed civil restraints; awarded primary residential custody to plaintiff; and addressed defendant’s parenting time and financial obligations. The provision pertaining to civil restraints prohibited contact except for communication directly involving the children through email or text messages.
Plaintiff filed her second domestic violence complaint and was issued another TRO on January 19, 2016. The next day, defendant filed for divorce. Following trial in February 2016, a Family Part judge dismissed plaintiff’s complaint and dissolved the TRO.
Thereafter, multiple orders were issued in the Family Part dissolution matter modifying the terms of the parties’ separation and parenting time. Notably, on March 7, 2017, the parties were directed to communicate only through the Our Family Wizard (OFW) computer application regarding the health, welfare, and well-being of their children. Defendant was also required to pick up the children curbside.
On July 2, 2019, defendant parked in the driveway of the marital home and repeatedly rang the doorbell when he picked up the children, in violation of prior orders requiring him to do so curbside. Later that evening, defendant called 9-1-1, claiming plaintiff took away Tina’s cellphone and the child was afraid “in case of an emergency” while in plaintiff’s care. On July 14, 15, and 19, defendant violated the March 7, 2017 order that limited the parties’ contact through OFW by repeatedly texting plaintiff and calling the landline.
According to plaintiff, on July 23, 2019, after returning the children to the marital home, defendant remained in his parked car, blocking the driveway, for a half hour. By his own admission, defendant failed to return the children to plaintiff at the conclusion of his parenting time on July 30, 2019. Plaintiff contacted the police for assistance but was told “it’s a civil matter and [she] need[ed] to go back to court.” Police nonetheless contacted defendant, who said he kept the children due to “safety concerns.” On July 31, 2019, defendant dropped off the children at the Bible camp they attended and where plaintiff worked.
Plaintiff filed a TRO again, to which the Judge entered an FRO after trial, finding Defendant’s conduct coupled with the history of domestic violence constituted harassment and warranted restraints to prevent further conduct. The Judge made credibility findings in favor of plaintiff, claiming she answered questions directly, did not avoid questions, and her emotions were consistent with what she was going through at the time. The Judge did not find Defendant credible, as he avoided questions, was combative during cross examination and his story was contradictory to the evidence on several occasions.
Defendant appealed the FRO, arguing these were just marital and custody issues, not harassment. The Appellate Division disagreed and affirmed the ruling, noting that the family court’s credibility and factual findings are to be undisturbed so long as the findings are supported but the substantial credible evidence, to which they were.
The key takeaway in this case is a trial Court must make specific findings for domestic violence matters. First, they must make findings as to the statutory factors of each of the predicate acts alleged by the plaintiff. The Judge must also make explicit credibility findings when there are disputed facts. The judge must also rely on sufficient facts from the record to support legal conclusions as to grant or deny an FRO.
Remember, restraining order cases are all about credibility. Once credibility is determined, it is fairly simple to determine whether an FRO will be granted. Make sure you hire an experienced attorney for your domestic violence matter to bolster your credibility and get you the desired result.
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