Edward R. Weinstein, Esq.

Does A History Of Domestic Violence Help Obtain a Restraining Order?

Yes. Once a Judge of the Family Part of the Superior Court of New Jersey finds that domestic violence happened on the day(s) in question, they shall then allow your lawyer to take testimony of any and all acts of domestic violence that have occurred in the past. Significantly, a history of domestic violence shall be taken into consideration by a judge of a New Jersey Family Court even if was never reported to the police. This is because it is sadly often that the victim of the cycle of domestic violence is afraid to reach out for help for fear of revenge at the hands of their domestic abuser. Other factors that frequently come into play for the attorneys at our law firm is the victim is afraid they may lose custody of their children or they are at the mercy of their

In S.M.E. v. A.E., husband A.E. appealed from a final restraining order entered by the Superior Court of New Jersey, Family Part of Morris County on January 3, 2016, after finding that he assaulted his wife, S.M.E. at her house, and threatened her when they were in the middle of getting a divorce. The New Jersey Appellate Division affirmed the final restraining order, for substantially the same reasons expressed in David J. Weaver’s comprehensive oral opinion that was rendered before entry of the final restraining order. Generally, just proving that that one of the predicate acts of domestic violence established in New Jersey Statute 2C:25-19(a) occurred is not enough to automatically trigger the entrance of a domestic violence restraining order. While such a determination may be self evident, the authoritative standard is whether a restraining order is needed, according to an evaluation of the factors enumerated in New Jersey Statute 2C:25-29(a)(1) to -29(a)(6), to protect the victim from immediate danger or to prevent future abuse. However, in S.M.E. v. A.E. the New Jersey Appellate Division held that when a predicate act of domestic violence is an action that inherently involves the use of physical violence and force, the decision to enter a final restraining order is most often perfunctory and self-evident. As such, the New Jersey Appellate Division deferred to the findings of the Honorable Judge Weaver, which they found to be based on substantial credible evidence in the record, and affirmed the final restraining order entered by the Family Part of Morris County.

S.M.E.’s testimony was found to be credible and consistent by Judge Weaver. The Family Part judge found that her testimony of being assaulted was supported by a photograph of a bodily bruise. Additionally, the judge also found S.M.E.’s mother’s testimony to be credible that she heard a loud crash and heard her daughter exclaiming “he’s attacking me.” Conversely, Judge Weaver found A.E.’s claim that his wife injured herself when she hit the doorknob against herself was neither credible nor was it consistent with the way the door was built, as evidenced by a photograph of the door. In consideration of the recent violent altercation, as well as previous threats over the years, the Family Part judge found that S.M.E. needed a final restraining order for her protection.

The New Jersey Appellate Division explained that in reviewing domestic violence cases, they give significant deference to the factual findings made by a Family Part judge, and these findings are binding on appeal as long as they are supported by substantial, adequate, and credible evidence. Judicial deference to the Family Part is especially warranted when the majority of the evidence is testimony and involves credibility determinations. Unlike an appellate panel, a Family Part judge gets to see witnesses firsthand and experiences a feel of the case that can never be duplicated by a mere review of the factual record. Additional deference is given to the Family Part’s factual findings because Family Part judge have a special expertise in family law matters. New Jersey Appellate Division does not second guess the exercise of a Family Part judge’s sound discretion, and will not change the factual findings and the legal conclusions that stem from them, unless the appellate panel is convinced that the same factual findings and legal conclusions are so clearly unsupported by or inconsistent with the relevant, competent and reasonably credible evidence that they offend the interests of justice.

The New Jersey Appellate Division explained that when a Family Part judge decides whether or not to enter a final restraining order under the Prevention of Domestic Violence Act, New Jersey Statute 2C:25-17 to -35, the judge has to conduct a Silver analysis and make two determinations. The Silver analysis is a two part test enumerated in the 2006 New Jersey Supreme Court case of Silver v. Silver, that must be satisfied before a judge can enter a final restraining order. According to Silver, a judge at a final restraining order hearing must: (1) determine that the victim has proved by a preponderance of the evidence, that the alleged abuser committed one or more of the predicate acts of domestic violence enumerated in New Jersey Statute 2C:25-19(a); and (2) then must determine if a final restraining order is necessary to protect the victim from future acts or threats of domestic violence. This requires a finding that the relief of a final restraining order is needed to prevent further abuse.

New Jersey Statute 2C:25-19(a) incorporates simple assault, and terroristic threats as conduct that constitutes domestic violence. The New Jersey Appellate Division explained that a Family Part judge must consider such predicate acts of domestic violence in relation to the history of the parties to better understand the totality of the circumstances of the relationship and to completely analyze the reasonableness of the victim’s continued fear of the perpetrator.

It is established law that just proving that that one of the predicate acts of domestic violence established in New Jersey Statute 2C:25-19(a) occurred is not enough to automatically trigger the entrance of a domestic violence restraining order. While such a determination may be self evident, the authoritative standard is whether a restraining order is needed, according to an evaluation of the factors enumerated in New Jersey Statute 2C:25-29(a)(1) to -29(a)(6), to protect the victim from immediate danger or to prevent future abuse.

However, the New Jersey Appellate Division found that when a predicate act of domestic violence is an action that inherently involves the use of physical violence and force, the decision to enter a final restraining order is most often perfunctory and self-evident. As such, the New Jersey Appellate Division deferred to the findings of the Honorable Judge Weaver, which they found to be based on substantial credible evidence in the record, and affirmed the final restraining order entered by the Family Part of Morris County.