Prior history of Domestic Violence not proper basis to issue a restraining order

When a victim of domestic violence is seeking a restraining order, NJ courts are required to examine the acts or acts which prompted the request for a temporary restraining order as well as the past history of domestic violence, if any exists.  The prior acts do not have to have resulted in a restraining order.  Analysis of both the present and past acts often results in a difficult balancing test for the court and confusion for the alleged victim. 

In this recent decision the court once again states that the prior acts – even if credible – are an incorrect basis to issue a restraining order if the current, or predicate, act is not found to be an act of domestic violence. If you are on either side of a domestic violence matter it is important that you retain an attorney who understands the proper use of prior acts.

20-2-7859 D.M. v. L.R., App. Div. (per curiam) (5 pp.) Defendant appeals from a final restraining order entered against her pursuant to the Prevention of Domestic Violence Act. Defendant argues that the trial court erred in adjudicating a domestic violence complaint by focusing on the “past history” between the parties and not addressing the actions alleged in the complaint. The appellate panel agrees and reverses. The trial judge did not make any finding that the complained-of events actually occurred or that, if they did, whether such acts amounted to harassment requiring the issuance of a final restraining order. When the court found that defendant committed domestic violence based upon a violation of a prior “consent agreement” between the parties, the court essentially converted the hearing into one on acts of domestic violence not alleged in the complaint, depriving defendant of her right to due process. The judge’s determination was conclusory and not anchored in specific findings of fact which would have supported the finding that a final restraining order was necessary.

About Sandy Durst

Sandy Durst, Esq., is the founding partner of The Durst Firm where he heads the Family Law Department. Individuals facing a divorce benefit from the combination of legal skill, common sense and compassion that Sandy brings to each and every matter. Each case is given the personalized attention it deserves.
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