A recent unreported Appellate Division decision highlights an important component of the analysis required to determine if a Domestic Violence Restraining Order is necessary in a particular case. Court are called upon to determine when routine domestic squabbles cross the line and constitute domestic violence. When deciding if a final restraining order is warranted the judge must consider whether or not the alleged victim requires the ongoing protections available to them under the terms of a restraining order. The trial court’s decision to not enter a restraining order was based on the belief that the plaintiff’s testimony was not credible and that both parties failed to establish a legitimate need for ongoing protection. Domestic Violence is never acceptable and those who commit domestic violence should bear responsibility for their actions. However, the consequences of having an FRO entered against you can be severe so they should not be granted lightly. This case strives to achieve an appropriate balance
FAMILY LAW
20-2-8833 E.M.Y. v. D.Y., App. Div. (per curiam) (5 pp.) Plaintiff E.M.Y. appeals from the decision dismissing the Temporary Restraining Order (TRO) she obtained pursuant to the Prevention of Domestic Violence Act. The parties were married in 1985 and have two children. In March 2010, defendant D.Y. served E.M.Y. with a divorce complaint. The couple continued to live together in separate rooms in the marital home. In May 2011, both parties were granted TROs as a result of a physical altercation at their home. Each sought a Final Restraining Order (FRO). Both parties and their older son testified at trial and both parties were represented by counsel. The trial judge found neither party had met his or her burden of proof to obtain an FRO and vacated all restraints. He found plaintiff’s testimony not to be credible. The judge found both parties had entered into the other’s bedroom during the two confrontations. He found that although both parties sustained physical injuries, neither party had proven harassment or assault by a preponderance of the evidence as required for the issuance of an FRO pursuant to the Act. The judge also found that neither party could establish a legitimate protective need for an FRO. The appellate panel affirms substantially on the basis of the judge’s oral and written opinions.
