At what point does 'alarming' behavior warrant protection in Domestic Violence cases
Would you believe that of the near 65,000 complaints of domestic violence reported in New Jersey each, almost half of them are under claims of harassment?
Due to the exceedingly high number of complaints, the state's courts are cautioning litigants of wasting resources - as well as hurting the plight of actual plight of true domestic violence victims by potentially alleging false claims.
Here, our own Jeremy Price weighs in on the severity of frivolous harassment claims:
1) State of NJ v. D.G.M. 439 N.J. Super. 630 (App. Div. 2015)
Issue: Can the act of sitting near and briefly filming a domestic violence victim constitute a violation of a "no contact or communication" provision of a Final Restraining Order (FRO)?
Holding: Yes. HOWEVER, the defendant in this case should not have been convicted for this violation under the doctrine of lenity, as he was entitled to a fair warning of prohibited conduct before he could be found to have knowingly violated the FRO.
Discussion: Both parents attended child's soccer game. The former ex-wife had the FRO against the ex-husband. The husband took 100 seconds of video using his cell phone, of which, only three (3) seconds showed the ex-wife. The court said that this ex-husband should not have been convicted because he had no reasonable basis to know that this was prohibited contact. However, all future individuals who act in this way should be convicted.
2) O.P v. L.G.-P., 440 N.J. Super. 146 (App. Div. 2015)
Issue: May a trial court enforce a provision within a Property Settlement Agreement ("PSA") which requires mediation and frequent contact between parties, when a FRO prohibiting contact between the parties was entered after the entry of the PSA?
Holding: No. When parties agree to mediation at the time of divorce, they do not anticipate the subsequent entry of an FRO. For reasons of safety, and to conform with public policy in NJ, mediation should not be ordered after a subsequent FRO has been entered.
Discussion: The entry of an FRO after a divorce settlement can impact many issues in the agreement. What if the parties want to mediate even though there is a FRO? The best method to handle this is to have the victim go to court and "amend" the FRO to permit mediation for specific purposes and reasons, and preferably to take place at the court house.
3) In the vast majority of domestic violence cases no request for attorney's fees is made by plaintiff's attorney upon the court finding in plaintiff's favor. This is a terrible mistake. A victim's attorney's fees in a domestic violence case that results in the entry of a final restraining order are considered damages. This differentiates an "award of counsel fees" in other, "normal" family actions, under R. 5:3-5(c), R. 4:42-9(a) or R. 1:10-3. These rules do not provide a "mandatory" right. They provide the "discretion" of the court based on a wide variety of factors. Counsel fee in a domestic violence action, however, are an expense created by the act of violence and there is no discretion of the court. When I represent a plaintiff and I anticipate a trial on the issue of the FRO, I bring a form "certification of attorney's fees" with me that I can fill out at the conclusion of the case with my time and fees so that I can submit them to the court. The court may ask the defendant if he wants to reschedule the case for another hearing on the issue of attorney's fees. However, I usually represent to the court and the adverse party at that time that an additional hearing will increase my attorney's fees. Sometimes we finalize the issue at the conclusion of the trial and there are times when we go back on another day to discuss the award and payment terms of my fees.