Edward R. Weinstein, Esq.

Are Threats Made Through A Third Party Domestic Violence?

Yes. Under New Jersey’s Prevention of Domestic Violence Act any threats made through a mutual friend or family member intended for the victim to hear represents harassment to this restraining order attorney. In fact, all of the lawyers at our East Brunswick, New Jersey law firm are all well versed on all aspects of what amounts to domestic violence.

In S.R. v. M.D., the parties were married in February 2012 in Jordan. The parties had fraternal twins born in June 2013.   The parties separated later in 2013. The children lived with the wife in the United States while the husband traveled between the United States and Jordan because he was not a United States citizen. The wife filed a complaint seeking a Final Restraining Order (“FRO”) against the husband under the Prevention of Domestic Violence Act of 1991 (“PDVA”) on October 2, 2015. In the complaint, the wife alleged acts of domestic violence. In the complaint, the wife claimed that the husband harassed her on September 1, 2015 and September 25, 2015 by sending threatening text messages and phone calls to the wife and her friends. The wife also claimed that the husband called her inappropriate and offensive names, threatened to take the children away, and threatened to tell welfare that the wife had made fake claims. The husband allegedly made these threats because the husband’s immigration status was revoked when the wife discovered that the husband was married to another woman in Jordan and reported the husband to the immigration authorities. In the complaint, the wife also claimed that there was a history of domestic violence. Specifically, the wife stated that the husband threatened to kill her by holding a knife to her chest on March 5, 2013. The husband also allegedly drove his car toward the wife and a friend in July of 2014, and the husband allegedly threatened to rape the wife in May 2015.

On October 14, 2015, the husband was served with the complaint. A hearing was held in the Family Part of the Superior Court of New Jersey on October 27, 2015 to determine if a FRO was necessary. At the hearing, the wife had an attorney while the husband represented himself, and the judge explained the court process to the husband. During the trial, the wife testified to the husband’s harassing conduct toward her. The wife testified that there were several harassing and threatening phone calls over the years. The wife’s classmate testified on the wife’s behalf, and stated that on one occasion the husband called the wife an offensive name and was walking around the wife’s car. The wife’s sister also testified, and stated the husband threatened to rape the wife in June 2015 while the wife and her sister were at the mall. The wife’s neighbor testified that she witnessed the husband and wife having many arguments outside the wife’s home over the past three years. The husband was able to cross-examine each of the wife’s witnesses.

The husband denied all allegations except yelling at the wife on one occasion when the police were called. The husband testified to the allegations that he was married to another woman in Jordan. The husband claimed that he divorced his first wife before marrying his current wife in 2012. However, on cross-examination, evidence was presented that showed that the husband divorced his first wife before marrying his current wife, but re-married his first wife in November 2012.

The trial judge determined that a FRO was necessary under the PDVA. The judge found the wife and her witnesses to be reliable and found that the husband did, in fact, threaten the wife. The judge applied the two-prong test from Silver v. Silver, which states that a predicate act, as defined in N.J.S.A. 2C:25-19(a), has occurred, and that a FRO is necessary to protect the victim from future harm. A predicate act is an earlier crime or offense that is similar to the crime or offense being alleged. In New Jersey, some predicate acts under N.J.S.A. 2C:25-19(a) include harassment, assault, stalking, and criminal trespass. The trial judge found, under Silver, that there was a predicate act and that a FRO was needed to protect the wife from future acts of violence.

The husband appealed the granting of the FRO and argued that he was denied his due process rights, meaning he was denied a fundamental fairness in his legal proceeding, because he was not properly informed of the claims against him. The husband also argued on appeal that the consequences of a FRO were not properly explained to him. The New Jersey Appellate Division analyzed whether the husband’s due process rights were violated. The Appellate Division held that the husband’s rights were not violated. The Appellate Division stated that the United States Constitution and the New Jersey Constitution require a defendant be given notice and a sufficient opportunity to plan and reply to claims of domestic violence, as well as the chance to have witnesses and cross-examine witnesses. The Appellate Division further noted that there is no constitutional right to an attorney for domestic violence defendants. Ultimately, the Appellate Division held that there was no violation of the husband’s due process rights.

The Appellate Division also evaluated the domestic violence claims under the two-prong test of Silver. The Appellate Division found that the husband had harassed the wife, meaning he intentionally communicated with the wife in an offensive manner, threated to harm the wife physically, or engaged in repeated and alarming conduct against the wife. The court found that the husband’s threatening and frequent phone calls and text messages, inappropriate name-calling, and physical threats qualified as harassment. The Appellate Division noted that courts may look to the totality of the situation to decide if harassment has occurred. The Appellate Division held that there was enough evidence for the trial judge to correctly conclude that the husband harassed the wife and that a FRO was necessary to protect the wife from future harm.

Please contact our office if you or a loved one is facing a situation involving domestic violence.