New Jersey Prevention of Domestic Violence Act
The New Jersey Prevention of Domestic Violence Act gives the Court jurisdiction to fix an appropriate amount of temporary support at the time of entry of a restraining order.
The Court has granted such authority in order to give a victim temporary support when he/she has been required to vacate the residence or the financial provider has been ordered to vacate the residence.
In a factually interesting case, a New Jersey Court accepted jurisdiction under the Prevention of Domestic Violence Act to enter a restraining order, but refused to accept jurisdiction to enter a support order.
Under the unique facts of the case, the abuser had no contacts with New Jersey, lived in Illinois and had instituted an action for divorce in Illinois at the about the same time as the Domestic Violence action was initiated in New Jersey.
The case seems to be a very logical interpretation of the domestic violence statues, and will prevent abuses of the statue by persons attempting to circumvent the jurisdiction of a sister state by using the emergent provisions of the Prevention of Domestic Violence Act.
Shah v. Shah, Appellate Division, approved for publication November 9, 2004.
Seems strange, Why would someone who lives in Ill. file for a restraining order in NJ except to invoke the DV statues in order to get a jump on divorce litigation and potentially criminalize the accused party.
What are the Constitutional aspects of exparte' restraining orders? Does this violate the defendants 14 amendment rights?
What is to prevent a party of a divorce from filing a false domestic violence claim in order to get a jump on the litigation and what recourse does the accused have when falsely accused?
What recourse does a defendant have who has been false ly accused of domestic violence? Criminal? Civil?
WHat liability does the accusers attorney have if they encourage this behavior?
Respectfully,
You raise valid and interesting questions. I do not know of any case raising a constitutional challenge to the ex parte temporary restraining order. However, I believe the Courts would find that any constitutional issues are offset by the need for immediate relief and the accused's ability to apply for a dissolution on 48 hours notice. In New Jersey the final restraining order can only be entered upon notice and opportunity to be heard; the final order cannot be entered ex parte.
The issue as to using the prevention of Domestic violence statutes to get a "leg up" in the divorce is a more serious consideration, in my opinion.
It is naive' to believe that some persons or even attorneys (hopefully a very, very insignificant minority) would not use such egregious tactics. Such behavior should be dealt with swiftly, harshly and effectively by the Court. Sanctions should be imposed against the offending party and if the falsely accused person suffered any damages those damages should be asserted in a malicious prosecution or abuse of process claim. An attorney who engaged in such behavior should similarly be subject to sanctions/or ethical consequences.
Mr Durst,
Unfortunately, in NJ when a temporary domestic violence restraining order is issued exparte'it does indicate that the defendant has 48 hours to appeal , but provides no access for the layperson to handle such a matter. It further does not indicate how to do this unless a lawyer is engaged. By then the 48 hours has passed. Effectually, it circumvents the defendants rights to life , libery and happiness.
Additionally, it is common practice in Monmouth County NJ court vicinage to issue indefinate restraining orders (IRO) at the final restraing order hearing without a case being heard. The use of indefinate restraining orders were only ment to be issued when the defendant cannot be served or if the defendant does not appear the day of the final restraining order hearing. An indefinate restraining order carries the same effect legally as a final restraining order and can remain in effect at the descression of the attornies handling the case. It is apparent that when cases should be dismissed for frivilous and most times subjective claims of domestic violence the courts allow the constutional rights of the defendant to be ignored.
We see this most often when the local women' center is involved or when the attorney representing the male client is a stanch advocate of feminist juris prudence.
Another typical practice in Monmouth County NJ is allowing Municipal Court Judges to issues exparte' restraining orders and practice matrimonial law. There is an inherent conflict of interest here when a Municipal Judge , as in the case in Marlboro Township New Jersey , when he took it to such extremes by acting as a lawyer and a Judge on the same case.
This particular Judge encouraged his client to appear at the Marlboro Township Municipal court to claim domestic violence (2 previous claims were dismissed as baseless and without merit), post divorce based on subjective claims (while he was attempting to obtain full legal and physical custody of children, as her lawyer, in family court) then proceeded to represent the complaintant in Superior court as a lawyer at the final domestic violence hearing and lost the case.
He further went on the next day to arraign the defendant in Municipal Court playing the role now of a Municipal court Judge on the same charges that were dismissed in a higher court the day prior( where he played the role of the complaintants attorney)which had a lower burden of proof for conviction.
If Municipal Court Judges are barred from practicing criminal and / or Quazi criminal cases while on the bench, why then are they allowed to practice Family Law and act as a judge and a lawyer on the same case?
How can we as citizens and you as a respectable pervayor of the law prevent such agregious disregard of our United States and NJ State Constitution.?
Respectfull
What is the process to obtain a restraing order against someone ( your own daughter)
We cannot give legal advice over this medium. However,the general proedure is contact your local police department, Municipal Court or go to the Domestic Violence facility in your County Courthouse.
Robert J. Durst, II
If I have a restraining order against my husband, am I allowed to contact him without being in violation of the restraining order that I filed?
We are not ethically permitted to give specific advice over the internet. However,without reference to your particular case or question, the answer generally is an emphatic no. Such contact may not only be a violation of the restraining by the person making the contact, but may jeprodize the integrity of the order itself.
Can a perment restraining order be issued with out both parties be in court
If I filed a tro and went to court. I dropped the charges. Is there a criminal aspect to this order? On the paperwork it states terroritst threat and assault.