Edward R. Weinstein, Esq.

May I Obtain a Restraining Order Against My Own Adult Child?

As an experienced trial attorney, I am well aware that New Jersey’s Prevention of Domestic Violence Act allows a victim to obtain a temporary or final restraining order against a “household member.” However, while most lawyers understand this to include what is commonly known as “elder abuse,” I have found that far too many folks do not have a full appreciation of who has standing (i.e., the ability to seek a retraining order) under New Jersey’s domestic violence laws. However, the Honorable Lawrence R. Jones, recently specifically confirmed that that Prevention of Domestic Violence Act specifically includes victims of elder abuse at the hands of their own adult child.

Elder

In the very recent Ocean County Superior Court case of J.C. v. B.S., set the record straight on elder abuse in New Jersey. This case of first impression held that public policy allows victims of elder abuse to use the Domestic Violence Act to seek protection, and obtain restraining orders against their abusers.

In J.C. v. B.S., the Ocean County Superior Court explored the connection between New Jersey’s Prevention of Domestic Violence Act and elder abuse. The court found that some senior citizen’s might be particularly vulnerable to abuse due to their advanced age and physical limitations. Unfortunately, under certain circumstances this abuse could come from their own family members living under the same roof. Moreover, elder abuse does not have to be actual physical abuse, as emotional abuse can be just as, if not more harmful than physical abuse in certain circumstances. Chronic use of obscenities by an adult child toward their senior parent, may be substantial enough to constitute harassment and domestic violence under the two-pronged test of Silver v. Silver. Such verbal use of obscenities can be even more pervasive and harmful when done in the parent’s own home. In J.C. v. B.S., an adult son’s continued use of shocking verbal obscenities and profanities towards his elderly, physically compromised mother, in her own home, along with other conduct, constituted unacceptable harassment. Under the totality of the circumstances, and the Silver, the court found that the son’s actions warranted the issuance of a domestic violence restraining order that removed him from his mother’s home.

The elderly mother, referred to as J.C., was a seventy-three year old senior citizen. Not only had she already suffered two mini-strokes, she also recently had two back operations and a hip replacement. Physically, she was frail, and had difficulty walking. Regardless, she still bravely lived independently in her own home with a friend. She had generously allowed her adult son to stay with her at her house. The son had no ownership interest in his mother’s home, nor did he have any formal lease agreement or tenancy arrangement with his mother.

The mother filed a domestic violence complaint against her adult son. She sought a final restraining order to remove him from her home on the grounds of ongoing harassment on an almost daily basis. The mother’s credible testimony revealed that her son would constantly refer to her as a “bitch”, “whore”, “cunt”, and other disrespectful expletives and obscenities referring to her female anatomy. The mother testified that his son’s outburst were usually connected to his use of alcohol. In addition, the mother testified that her son would constantly and forcefully poke her and on one occasion almost caused her to fall down. On another recent occasion he put his hands around her throat. She understandably felt threatened and harassed by his disrespectful and menacing conduct. When she would try to call the police, he would obstruct her way and grab her phone. An eyewitness who was familiar with both mother and son testified that she personally heard B.S. call his mother such obscenities such as “cunt”, “bitch”, and “loser”.

On August 26, 2015, J.C. finally managed to call the police. She sought help after B.S. came home drunk and again began verbally abusing her and berating her with filthy language. The court granted the mother’s request for a temporary restraining order and also scheduled the issue for a final hearing. During the final hearing the mother acted introverted and quiet. She appeared to be upset at having to resort to court in the first place. Conversely, the son acted hostile, and verbally aggressive at court. Even though he admitted to using obscene language towards his mother in the past, he stated that he did not do so on a regular basis. He also contended that his mother was mean and aggressive towards him, and allegedly chased him around the house. However, he could not clearly explain how or why she “chased” him, or how she could even physically do so after two back operations, a hip replacement, and two mini-strokes. Furthermore, he failed to credibly prove that he was in any type of actual fear of his mother. Furthermore, he could not present any reason as to why a grown adult would voluntarily and indefinitely stay at his mother’s house if that same mother was abusive towards him. His only explanation of the living arrangement was that he and his mother were helping each other out. Needless to say the court did not find his argument very credible.

At the end of the hearing, the judge found that the mother’s testimony was significantly more credible than her son’s testimony. The judge also found that the son had in fact been verbally harassing his mother on an ongoing basis through constant verbal obscenities. Moreover, the son acted with hostility and with an intent to harass. This was evidenced by his inappropriate physical conduct towards his mother at her house, including repeated poking, placing his hands around her neck, and obstructing her attempts to call the police. Therefore the court found that the son’s conduct constituted domestic violence sufficient to warrant a restraining order.

The court stated that there was a clear need for special protection of the elderly against abuse and domestic violence. There is no specific language in New Jersey’s Domestic Violence Act that creates a special category for “elder abuse”. The court reasoned that when an elderly parent is the target of abuse from an adult “child” who is living in the senior’s home, there is a need to protect that elder from familial abuse. As a general mater, it is fundamentally abhorrent for an adult child to physically or verbally abuse and harass a parent, especially an elderly one. Such behavior is repugnant to the basic nature of civility and respect rightfully given to elders as a part of human decency. A substantial part of the abuse was the use of verbal profanities. When based primarily upon the alleged use profanities, a court can decide to grant a restraining order, depending on the factual circumstances.

The present matter the judge found that the son acted in a way that was objectively socially unacceptable, and crossed into the realm of harassment and domestic violence. New Jersey Statute 2C:25-19 includes harassment as a form of domestic violence. Harassment is defined as any “communication with purpose to harass, in offensively coarse language or any other many likely to cause annoyance or alarm”. The degree and frequency of the abuse demonstrated the son’s hostility towards his mother with purpose to cause emotional upset pain and injury to her own self-esteem. No reasonable person, senior or otherwise, would tolerate his type of behavior in their own home, particularly when the adult child is living with the parent. The underlying protection of the Domestic Violence Act is the right to be left along. People also have a right to feel safe in their own home.

The court noted that in the 2006 case of Silver v. Silver, the New Jersey Appellate Division established a two-pronged analysis to determine where to enter a final restraining order. First the court must determine if a predicate act of domestic violence has occurred. Then the court must decide if there is any immediate danger to the person. The son’s conduct in the court room clearly reflected a person hostile towards his mother. In consideration of all the above reasons the court granted the final restraining order to prevent the son from entering into the mothers home.

If you or a loved one is the victim of elder abuse, please contact my office today so we may get to work to protect the elderly.