Can past acts of domestic violence be considered at my FRO hearing?

New Jersey takes protecting victims of domestic violence very serious.  But in doing so, the law must also protect the due process rights of the alleged abuser.  When seeking a Temporary Restraining Order or a Final Restaining Order, the victim must identify and prove beyond a preponderance of the evidence that a predicate act of domestic violence.  As for the acts that may constitute domestic violence, that is a topic for another post.  In addition to establishing the predicate act which is the basis for the restraining order, the victim may also testify as to past acts of domestic violence regardless of whether a restraining order was obtained.
Why is testimony of past acts allowed?

Testimony of past acts of alleged domestic violence are allowed in order to provide the court with a full picture of the relationship.  It is generally accepted that domestic violence is a cycle and that a victim may not seek protection at the beginning.  Establishing this cycle is important.  Also, many DV cases rely heavily on the testimony of the parties.  Photos, recordings, witnesses, medical reports, and other similar evidence are not always available.  Reviewing the history assists the court in determining the credibility of the parties.
The proper way to use past acts

In order to use past acts, the victim must adequately identify the alleged acts in the Domestic Violence Complaint.  This requirement is broadly interpreted by difference courts, but the recent Appellate Divison decision in M.K. v.  A.K reaffirms the requirement that if the victim intends to use, and the court intends to rely upon, past allegations of domestic violence, than those allegations must be included in the Complaint.  This allows the defendant to have adequate notice of the claims so as to prepare their defense.  

In the M.K. case, the appellate court reversed the trial court’s entry of a FRO because the “plaintiff was allowed to testify extensively about prior history not included in the complaint” and the court’s reliance on this testimony resulted in a “violation of the defendant’s due process rights”.

The use of allegations of past acts of domestic violence can greatly affect the outcome of a domestic violence cases for both sides.  Whether you are the victim or the defendant, working with an experienced attorney who understands these rules can be a great benefit.

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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