Thursday, November 15, 2012

Flash Photography: Violation of the Prevention of Domestic Violence Act?

If you see your ex taking flash pictures of you, can you request a restraining order against him or her in New Jersey?

In the 2011 New Jersey case, J.D. v. M.D.F., plaintiff argued that defendant was harassing her in violation of the Prevention of Domestic Violence Act after she saw him taking photographs outside of her home at 2 a.m.. J.D. v. M.D.F., 207 N.J. 458 (2011). The defendant claimed that the reason he was outside of plaintiff’s home taking photographs was to compile evidence that the plaintiff’s new boyfriend was staying at the residence in order to support a motion to transfer custody he was in the process of filing.

At the Final Restraining Order (“FRO”) hearing, the trial court allowed the plaintiff to describe past incidents of abuse that were not part of the original Complaint and denied the defendant the chance to prepare and respond to the allegations not in the original Complaint. The trial court granted the FRO and the appellate division affirmed.

The New Jersey Supreme Court reversed and remanded the case for a rehearing. The Court, citing to N.J.S.A. 2C:25-29b, said that even though the plaintiff presents evidence that meets the definition of harassment, courts must find that relief is necessary to prevent further abuse. Furthermore, it is the obligation of the trial court to consider the testimony and allegations in light of the statutory standards and case law–the victim’s subjective reaction alone is not enough.

With respect to the plaintiff testifying to past acts of abuse that were not in the original complaint, the Court said that allowing that testimony effectively amended the complaint. Therefore, the defendant should have a chance to respond to the allegations. If the defendant did not receive that opportunity, then in effect, the defendant would be denied his due process rights.

With respect to court’s granting a FRO, the two-prong test must be satisfied: a predicate act of domestic violence established by a preponderance of the evidence and, if satisfied, an inquiry into whether restraints are necessary to protect the victim from harm. In this case, the predicate act of violence was not established by a preponderance of the evidence.

If you are thinking of filing a restraining order in New Jersey, or have had one filed against you, you should contact an attorney. 

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

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