Domestic Violence: An Introduction
If you believe you will become a victim of domestic
violence, or that your spouse or dating partner is attempting to "bait you" into hurting him or her, the best advice I can
give is to leave your home! Do not remain in a dangerous, volatile situation. If you are in fear of returning home, go to
your nearest police precinct and seek assistance. The police will advise you as to how to obtain a restraining order.
For victims of Domestic Violence, it couldn't be more real. Victims need protection, and the State of New Jersey
and each city and town do their best to manage this complex social ill. Yet--their is a seedy underside to this relatively
new area of regulation, and that is the false accusation. In a small number of cases, a victim will file a false report to
gain the upper hand in a divorce or other family case, such as a custody or child support matter.
How can this be so? Wouldn't it be against the law for a person to mislead a police officer by accusing another person
of a criminal act that never occurred? Wouldn't lying under oath or swearing falsely in an affidavit lead to prosecutions
for perjury? Sadly, in an honorable effort to encourage victims of violence to enforce their rights, the State of New Jersey
has been unable to come up with a consistent way to punish people who file false claims. False claims can be repeated again
and again without any ramifications to the supposed victim. For the falsely accused defendant, there is no way to get reimbursed
for legal fees or to even obtain basic damages for loss of wages for days wasted in court, other than intricate procedural
techniques which exist on paper but are rarely enforced.
How to Prove Domestic Violence
In order to prove domestic violence
took place the plaintiff victim needs to show that she or he is either:
- eighteen years of age or older,
or an emancipated minor; and
- is or was married
to the defendant; or
- is dating (or has
dated) the defendant; or
- is or was recently
sharing a household with the defendant (including blood relatives); or
- has a child in common
with the defendant.
The plaintiff victim must then
prove that the defendant committed at least one of the thirteen (13) different criminal actions described in the Prevention of Domestic Violence Act, the most commonplace
being harassment and/or assault.
It sounds complicated, but it is easy to do.
Rarely will a Judge not find a legal basis, referred to in the law as "probable cause", to issue a Temporary Restraining
Order.
The Prevention of Domestic Violence
Act was not designed to prevent spouses from having arguments (even nasty ones) or to protect against issolated incidents,
although a violent act committed even once is often grounds for a final restraining order.
Just What Is a Restraining Order?
A restraining order is an order issued by a judge
to restrain a defendant from communicating with a victim (or their family or co-workers) by any means including phoning, emailing, texting
or otherwise. It may include provisions for support or temporary financial arrangements, custody and visitation of children,
forfeiture of firearms, etc.
It is extremely important to read
your temporary restraining order carefully and to follow it
to the letter! Even if you sincerely believe that you are
not guilty of commiting the alleged criminal act, a violation of a restraining order is itself a criminal act! You read that
right--if you fail to follow this court order, even if you are totally innocent of the alleged original act, you can be fined
and incarcerated! This can also lead to a permanent criminal record.
The worst thing that can happen
is to be falsely accused of violence, to later prove you are innocent, and to then be jailed because you violated that bogus
order. Don't do it!
Remember that a restraining order
does not necessarily result in a criminal record, but a violation of an existing restraining order does. And always remember
that Judges are more likely to find you credible on the witness stand if they know that you follow court orders. Credibility
goes hand in hand with obeying the law, although it certainly doesn't qualify you for special treatment under the law. Obeying
the law is just common sense. Breaking the law just makes a bad situation worse.
What is the Process after a TRO is issued?
A temporary restraining order ("TRO") usually results in a hearing being held
in the County Courthouse within three to ten days of the issuance of the TRO. The hearing is a trial with witnesses, including
anyone who saw the alleged violent act, and/or police officers who saw the "aftermath" and filed a report.
If the defendant fails to show
up for court (but he/she knows about the hearing), a Final Restraining Order is likely to be granted. However, a victim plaintiff
must still prove to the Judge that he/she is entitled to the protection of the Prevention of Domestic Violence Act, even if
the defendant doesn't show. But the Judge will only hear one side of the story, and that is never a good way to defend yourself!
A defendant must come to court to present their best defense. Once the Judge hears both sides, he/she will make a decision
as to whether a Final Restraining Order should be granted.
Either side or both sides are
entitled to be represented by attorneys. If you are wrongly accused of domestic violence, not hiring an attorney experienced
in this area of the law may prove to be a costly mistake.
If a Final Restraining Order is granted a defendant will have the right to
appeal, but it will be extremely difficult and quite costly at that point to do much about it.
Hire Richard F. Fried, Esq. for your Domestic Violence Case Because:
- He has Experience representing
clients in Domestic Violence Hearings
- He is Knowledgeable
about Restraining Orders
- He is Compassionate
towards Defendants Who are Wrongly Accused
Domestic Violence is
a terrible thing. But wrongly accusing someone of commiting this heinous act is almost as despicable as the act itself.
More Information
Read the definitions of domestic violence here: N.J.S. 2C:25-19
Domestic
Violence...learn more from the New Jersey State
Bar Foundation
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