A Restraining Order Should Not Be Based on a Judge’s Personal Beliefs

It is unfortunate that many divorcing couples experience domestic violence, whether leading up to the decision to divorce or after the process has been commenced. When the couple decides to reside in the marital home pending the final dissolution of the marriage or the sale of the home, the close contact may create further opportunities for violence. It is important for the person who has been abused to have access to the court system in order to get the protection that he or she needs. However, it also is critical that judges apply the law rather than rely on personal feelings, in order to ensure that everyone’s rights are protected.

A recent case in New Jersey involved a couple who was going through a divorce, but living together in the same home pending the sale of that home. In C.C. v. R.C., No. A-5504-13T3 (August 19, 2015), there was alleged to be an incident of violence in the marital home, where R.C. assaulted C.C., and C.C. went to court to obtain a restraining order against R.C. In order to obtain a restraining order, the party must demonstrate that there was a predicate act. See Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 through 35. In addition to testifying about the assault that formed the predicate act necessary for the issuance of the restraining order, C.C. also testified about R.C.’s prior acts of domestic violence. The trial court judge issued a Final Restraining Order (FRO) based on the prior acts of R.C., as well as his personal views on a couple living together while working towards a divorce, which he did not believe to be a good idea.

In reaching a decision to overturn the holding of the trial court judge, the New Jersey Superior Court, Appellate Division, held that the judge should not have based the issuance of the FRO on the prior acts rather than the predicate act of the current incident. In addition, the Appellate Division stated that the judge should not have based his decision, in whole or in part, on his personal beliefs. The Appellate Division found that there are very specific requirements for the issuance of a FRO and the basis for the issuance of one in this case was not proper. The case was remanded back to the trial court for a determination of whether the predicate act was sufficient to form the basis for the issuance of the FRO.

Domestic violence never should be tolerated, but the current case makes it clear that the courts must follow the law rather than their personal opinions.

The Bronzino Law Firm Advocates for Its Clients Throughout and After Divorce

New Jersey Family Law Attorney Peter J. Bronzino works hard on behalf of his clients from the beginning of the process through necessary actions after the Judgment of Divorce has been entered. The Bronzino Law Firm is located in Brick, New Jersey. We serve clients in Monmouth County, Ocean County, and the surrounding area. If you have questions about obtaining a divorce in New Jersey, enforcing parental rights, or modifying a previously entered order, schedule a free consultation by calling us toll free at (732) 812-3102.