Thursday, October 18, 2012

Requirements of a restraining order in New Jersey

In the 2011 New Jersey case, S.M.K v. C.R., the plaintiff sought a restraining order against the defendant a year after their year-long relationship ended. S.M.K. v. C.R., 2011 WL 4596059. Immediately after their break-up, the defendant began texting, emailing and showing up at the plaintiff’s home. Plaintiff filed for a restraining order alleging harassment.

A little over one year after the parties broke up, defendant went to plaintiff’s home and, when no one answered the door, defendant left a note on plaintiff’s car. After finding this note, plaintiff went to the local police station and signed a complaint under the Prevention of Domestic Violence Act (“Act”), N.J.S.A. 2C:25-19(a), against defendant for trespass as well as harassment. According to the Act, a victim of domestic violence includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship. A day after filing the complaint, plaintiff obtained a temporary restraining order (“TRO”). 

At trial, plaintiff could not produce the texts mentioned in the complaint filed and described as “nasty.” About four months after the break-up, plaintiff wrote to defendant asking defendant to stop “emailing, calling, [and] coming to my home.” Four months after that, defendant tried to contact plaintiff on Facebook to congratulate her about her engagement. Five months after that, defendant asked plaintiff’s fiancé to become Facebook friends, as plaintiff had blocked defendant.

The trial court’s decision stated that although plaintiff had proved the predicate act of criminal trespass, the judge found that defendant had not committed any acts of harassment and a restraining order was not necessary to protect plaintiff from immediate danger. The judge said that defendant’s communications were not threatening, or threatening violent action, toward the plaintiff and granted defendant’s motion for a directed verdict, dismissed the case and dissolved the TRO.

The Appellate Court agreed with the trial court judge that a domestic violence restraining order was not necessary for plaintiff’s protection and, further, that plaintiff had not established legal entitlement to relief. Even though a predicate act to harassment was proved, plaintiff could not prevail unless she made a showing that an Final Restraining Order was necessary for her protection and, even though defendant’s attempts to contact her were unwanted and annoying, the actions did not establish a need to protect plaintiff according to the Act. These cases tend to be extremely fact specific and courts generally require credible proof before entering a restraining order against an individual. 

By the same token, in a case that boils down to a he said/she said, a court could err on the side of protecting the alleged victim. Therefore, filing or defending against a restraining order should never be taken lightly.

If you have questions about possible harassment or the need for a restraining order, or if a restraining order has been filed against you, you should contact an attorney to discuss your options.

Written by Allyson Lutley, law clerk to Law Offices of Linda A. Kerns, LLC.  Edited by Elizabeth A. Bokermann, associate attorney.

1 comment:

Anonymous said...

thanks for sharing..