The Appellate Division opinion of A.M.C. v. P.B, released for publication on October 21, 2016 finds that a Trial Court misapplied the two-prong test for determining whether the issuance of Final Restraining Order is necessary (set forth in the landmark domestic violence case Silver v. Silver which requires in its second prong that the Court find that a domestic violence restraining order is necessary to protect a victim from future abuse). The Trial Court had found that the defendant had perpetrated acts of domestic violence, in this case, the assault of the victim on two separate occasions in a three- week period, including a physical assault that took place to prevent the victim from leaving the marital residence. But then determined that a Final Restraining Order was not necessary because it was not necessary to protect the victim from further acts of domestic violence because they believed that the parties’ relationship had ended when the victim left the marital residence because there were no children of the relationship and the fact that the defendant had no violated the TRO (which had not been served upon him) after the victim left the marital residence.
When I was in college I conducted an oral history of the Holocaust. I interviewed women and men who had survived the most unthinkable and unspeakable things. The overwhelming and amazing lesson was not what they had tragically endured, but how they had endured it. How their spirits had survived when maybe others had given up hope. Resilience. Resilience is defined as essentially the ability to get back up when you get knocked down. And in study after study researchers have come to learn that resilience is the single biggest predictor of future success.
Last year’s change in the Prevention of Domestic Violence Act (“PDVA”) and two recent New Jersey cases are expanding what can be considered an “act of domestic violence,” for purposes of obtaining a Temporary and Final Restraining Order. In 2015 the New Jersey legislature amended the PDVA to include a defendant’s violation of a no contact provision of a restraining order as an act of domestic violence. This provision of the PDVA was intelligently analyzed by Judge L.R. Jones (Ocean County) for the first time in the recent case of DS v. BC (unreported August 2016). In this case, the Court indicated that a “knowing violation of a restraining order,” meets the first prong of Silver v. Silver (whether the victim has “proved by a preponderance of the evidence that one or more acts of domestic violence have taken place”) and then laid out a thoughtful analysis of this new provision of the PDVA.