Edward R. Weinstein, Esq.

Articles Posted in Restraining Orders

Over the course of my career as a divorce and family law attorney I have watched technology change many aspects of New Jersey law, especially as it pertains to New Jersey’s Prevention of Domestic Violence Act. When I started practicing in my hometown of East Brunswick, New Jersey, in 1996, many restraining order trials were most often “he said, she said” affairs as most times there were not any no witnesses or other proofs. Then technology altered many aspects of our society, including acts of domestic violence.

First, people would send harassing or threatening emails to one another.  Then texting and smartphones came into play and the game changed forever. By 2012 a survey discussed on the Today Show stated that over 90% of lawyers saw a dramatic increase in text messages being introduced as evidence in domestic violence trial. This recent case discusses how a judge of a New Jersey Family Court analyzes text messages during a restraining order trial ranging from the amount of messages, the time frame as well as the content.

In C.O. v. T.O., the parties were married and were divorcing. The New Jersey Appellate Division previously vacated a final restraining order entered by the Superior Court of New Jersey Family Part pursuant to the Prevention of Domestic Violence Act of 1990. The court supported the Family Part’s finding that T.O. committed a predicate act, which is an earlier crime or offense that is similar to the crime or offense being alleged. However, the Appellate Division sent the case back to the Family Part to be re-heard because there was no finding that a final restraining order was necessary to protect the victim from future harm or abuse. At the re-hearing by the Family Part, the judge heard testimony by the parties and reviewed the alleged predicate act. The judge reviewed the messages from T.O. to C.O., which constituted harassment under N.J.S.A. 2C:25-19(a), and found that the testimony revealed a combative relationship between the parties. The judge found that T.O.’s text messages established harassment and that a final restraining order was necessary to prevent C.O. from future harm because the parties’ divorce was going to be very hostile. The judge also found that T.O.’s conviction in March 2016 for violating the restraining order weighed in favor of supporting the need for the 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.

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This is one of the most sensitive issues that the lawyers at my law firm have faced in the past 20 years of handling final restraining order matters here in New Jersey. Long story short, we represented the victim of domestic violence in a final restraining order hearing at the Family Part, Superior Court of New Jersey, Middlesex County. Just as the trial was about to begin, the attorney for the defendant stated that she would like to video the domestic violence trial. Of course, we immediately objected (we feared that the defendant would then place this video on the Internet in a future attempt to further harass our client) and requested a conference. Back in chambers, the judge then advised both lawyers that they had one hour “over lunch break” to research the issue and prepare their respective arguments.

At that point, myself and two of the other attorneys at my office all dove in (we practice “team work” at our law firm) to help our fellow associate attorney at the court house with research of case law, statutes and any other directives that would bolster our argument. By 1:30 p.m. that afternoon, his argument prevailed and the defendant was not allowed to video the final restraining order trial.   Our client was beyond relieved.

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As an attorney who has handled countless restraining order trials, it is my legal opinion that cell phones have been a true game-changer with respect to the landscape of New Jersey’s Prevention of Domestic Violence Act. As I and the experienced attorneys ay my law firm all embrace, cell phones can contain valuable evidence in the form of text messages, e-mails, and voice-mails that can make or break a vast majority of final restraining order trials. Still there are strict rules about evidence and whether it is admissible in a New Jersey Family Court and how evidence must be presented. The recent case of E.C. v. R.H. tackled the issue of how electronic information stored on cell phones should be presented in a court of law.

BULLY

In E.C. v. R.H. , Judge Jones, Family Part of the Superior Court of New Jersey, Ocean County, explained what should happen at a final hearing when a litigant presents evidence directly from his or her phone such as texts, e-mails, social media messages, or audio/visual evidence.

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After 20 years as a family law attorney, I am well aware that it is much easier to obtain a temporary restraining order (usually done without the assistance of an attorney) versus being granted a final restraining order (which usually requires a lawyer experienced in domestic violence matters). Moreover, through out my years as an attorney I thought I had seen it all, until the first time my client failed to appear for their court date, not just once, but twice! Well, you do not need to be a lawyer to know that it is a litigant’s duty to appear in court and failure to appear may very well lead to defeat. Even an open and shut case will be put into peril by a continued nonappearance. In K.M. v. A.M., the New Jersey Appellate Division confirmed that the dismissal of the “victim’s” complaint for a final restraining order was appropriate due to multiple failures to appear at the hearing.

Middlesex County Family Court

Middlesex County Family Court

Many times, Family Part judges utilize restraining orders to protect women from their former partners. A temporary restraining order is an order issued by a judge in an attempt to keep one person from harassing another person or group of people. The temporary restraining order is only effective for a short period of time, usually lasting no more than a month at most. This is because, in most instances, only one person’s request is needed to get the order. For it to become permanent or semi-permanent, a court of law must hear from not only the party who wants someone else to leave him or her alone, but also needs to hear from the person who is accused of violence, harassment, stalking, or other potentially illegal action.