Predicate Acts of Domestic Violence Involving Physical Force Will Almost Always Lead to an Issuance of an FRO

K.B. v. A.R.

Docket No. A-0493-19T1

Decided November 30, 2020

Submitted by New Jersey Family Law Firm, Hark and Hark.

In a recent unpublished decision the Appellate Division reversed a trial court’s denial of a Temporary Restraining Order (TRO), as a predicate act that involves violence is almost certain grounds to grant a Final Restraining Order (FRO).

In K.B., the parties were friends for approximately six years and would often meet at the bar where plaintiff worked as a bartender. Defendant is about twenty years older than plaintiff. In July 2019, defendant moved into plaintiff’s one – bedroom apartment in order to help her with her expenses. Plaintiff testified that the parties have never had a romantic relationship, and the living arrangement was a temporary one. Plaintiff slept on the bed in her bedroom, and defendant slept on a reclining chair in the living room.

On the evening of August 9, 2019, plaintiff and defendant were drinking and using cocaine with plaintiff’s father and a friend. At some point during the evening, defendant went into the bedroom and fell asleep in plaintiff’s bed.

Around 6:00 a.m. on the morning of August 10, plaintiff went into her bedroom, found defendant asleep, and got into the opposite side of the bed. Plaintiff did not ask defendant to move because her father and the friend were sleeping in the living room, and defendant would have had to sleep on the floor.

At approximately 2:00 p.m., plaintiff awoke to find that defendant had pulled her pants down as she was sleeping on her stomach and had penetrated her vagina with his penis. Plaintiff testified that she initially “froze.” However, when defendant began making sounds indicating he was about to ejaculate, she “snapped back to reality” and pushed defendant off of her. Plaintiff then wrapped herself in a blanket and fell back asleep.

When plaintiff awoke a few hours later, she found defendant “still in the room with” her, and she “freaked out.” She hit defendant “a lot, cried, [and] yelled.” She told defendant to leave the apartment, and he complied.

At trial, plaintiff reported that a few days before the sexual assault, defendant had masturbated in front of her and touched her with his erect penis while he did so. Defendant also offered to give plaintiff money and a tanning salon membership if she would “give him a taste.” Plaintiff refused.

Plaintiff was granted a Temporary Restraining Order (TRO) based on her allegations.  The Trial Court denied an FRO, finding that because defendant no longer lived in the area, plaintiff failed to demonstrate that a restraining order was necessary.

Plaintiff appealed. The Appellate Division found that the trial court had failed to consider the great weight of the evidence. It is nearly self-evidence that an FRO is necessary to protect the victim when a predicate act of domestic violence that inherently involves the use of physical force and violence.  The Trial Court found plaintiff’s testimony credible with regard to the sexual assault.  This, along with testimony regarding prior acts of domestic violence including physical violence, was more than enough to demonstrate a need for an FRO.  The mere fact the defendant no longer lived in the area was not enough to overcome the evidence of violence on part of the defendant. The Appellate Division reversed the decision and granted an FRO in favor of the plaintiff.

The key takeaway in this case is that predicate acts of domestic violence involving physical force will almost always lead to an issuance of an FRO. To receive an FRO in New Jersey, the plaintiff must show by a preponderance of the evidence that a predicate act of domestic violence occurred, and if one or more did occur, that the restraining order is necessary for plaintiff’s protection.   This case basically states that if the predicate act involves violence, it becomes self-evident that the restraints are necessary and plaintiff need not show more than the act occurring. 

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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We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing domestic violence charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Salem counties.

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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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