Since passage of the New Jersey Prevention of Domestic Violence Act over two decades ago, family courts have become inundated with domestic violence cases of all shades and stripes. Since the Act established the lowest legal burden of proof (a “preponderance of the evidence” as opposed to “clear and convincing” or ”beyond a reasonable doubt”), Final Restraining Orders became relatively easy to obtain. There were, of course, reversals of some decisions but many attorneys, myself included, agreed that defendants in domestic violence cases stood at least as much chance of losing than prevailing at trial.
In recent months, legal observers have witnessed a trend by trial and appellate judges to exercise greater caution in this sensitive area of the law. In part, this recognizes the inherent distinction between domestic discord and domestic violence, the latter of which carries significant legal penalties if proven to exist. The intent of the Domestic Violence Act was to protect bona fide victims of domestic violence, not to create a remedy for all offensive conduct. Thus, even if a predicate act of domestic violence is found to exist, courts are not compelled to enter a Final Restraining Order unless there is a continuing need to protect the health and safety of the victim.
The recent trend of more critically examining the elements and public policy aspects of the Domestic Violence Act should result in more consistent decisions, a level playing field and protection of true domestic violence victims.