Did the judge ordered a restraining order even though there were no act of domestic violence?
Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
If you answer “yes” to any of these questions call my office so we can represent you on appeal. If you are worried about the judge finalizing a temporary restraining order and you have a hearing coming up and are concerned about all of the issues in the case call my office so we can represent you!
In this case a Superior Court trial judge found that although there were no acts of domestic violence proven the court used its “equitable power” as a judge and considered prior events between the parties to order a final restraining. This appellate court judge relied solely on P.J.G. v. P.S.S., 297 N.J. Super. 468 (App. Div. 1997)( See Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006)) to overturn the trial judge’s decision. In that case, the parties filed cross complaints pursuant to the Act, alleging the other engaged in assaultive conduct. After a joint hearing on both matters, the judge found P.S.S. (Paul) sustained his claim against P.J.G. (Patricia); he entered a final restraining order. In Patricia’s action against Paul, the judge found Patricia was unable to prove Paul committed an act of domestic violence but he entered restraints against Paul notwithstanding. On appeal a different panel overturned the Order for the FRO and remanded for dismissal of her complaint against Paul finding: “unless a finding is made that the person charged with conduct violative of the Act has committed an act of domestic violence, the court lacks a jurisdictional basis to enter a final restraining order.” Id. at 471.
This appellate panel ruled the same way! Essentially, this court was reiterating the direction to all the trial judges to not enter orders a final restraint between parties unless acts of domestic violence are proven by a preponderance of the evidence under the New Jersey’s Prevention from the Domestic Violence Act. In other words, if the party’s do not produce competent and credible evidence satisfying the preponderance of the evidence standard, the judge can’t make findings of domestic violence. Additionally, the court can not merely review the prior relationship between the parties, prior acts of domestic violence, and use it’s equitable powers to order a final restraining order. In other words, the complaining party must be prove act of domestic violence for a restraining order to be issued.