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Attorney David Heleniak just made an important advance against a terrible problem--restraining orders based on false domestic violence charges being used as custody maneuvers in divorce. First some background from my Newark Star-Ledger column Restraining Orders Can Be Straitjackets On Justice (7/28/08):
Women"s advocates and the state Attorney General's office are criticizing a new court ruling which will make it harder for women to get restraining orders against their male partners. Star-Ledger columnist Fran Wood, in her recent op-ed "Don't soften protection for women,' called New Jersey"s Domestic Violence Prevention Act "one of the best statutes in the country,' and said the new ruling could "diminish the ability of domestic violence victims to get the protection they need.' Certainly abused women need protection and support, but there are many troubling aspects of the DVPA"s restraining order provisions that merit judicial and/or legislative redress. Under the DVPA, it is very easy for a woman to allege domestic violence and get a restraining order (aka "protection order'). New Jersey issues 30,000 restraining orders annually, and men are targeted in 4/5ths of them. The standard is "preponderance of the evidence' (often conceptualized as 51%-49%), and judges almost always side with the accusing plaintiff. Under the DVPA, the accuser need not even claim actual abuse. Alleged verbal threats of violence are sufficient, even though it"s almost impossible for the accused to provide substantive contradictory evidence. The restraining order boots the man out of his own home and generally prohibits him from contacting his own children. Men are cut off from their possessions and property, and some end up in homeless shelters. Yet most have never even had a chance to defend themselves in court. In recognition of the gravity of these orders, the Hudson County judge, Francis B. Schultz, found the current standard of proof unconstitutional, however, and required the stricter "clear and convincing evidence" standard in the case before him. His ruling was not binding on other judges, but will likely be appealed, which could lead to a decision with a broader impact... Opponents of the ruling point to the relatively rare instances where men have killed their female partners as evidence of why the current law should stand. While these cases are heart-wrenching, they do not constitute a viable argument against the new ruling. For one, the new ruling does not eliminate restraining orders, but merely requires a proper evidence standard for their issuance. Moreover, it is highly questionable whether restraining orders protect genuinely abused women. A violent spouse intent on killing his ex is not going to be deterred from doing so out of fear of violating his restraining order. In many domestic violence killings, a restraining order was already in place. In general, a restraining order is only enforceable against a law-abiding, non-violent man. Jane Hanson, executive director of Partners for Women and Justice in Montclair, argues that Superior Court Judge Francis B. Schultz is wrong in ruling that the DVPA violates parents" "fundamental' right to "be with or maintain their relationship with their children.' Yet when a restraining order is issued, fathers can be (and sometimes are) arrested for calling their own children on the phone or going to their Little League games. Moreover, by removing the father from the home, a custody precedent is set with mom as primary caregiver and dad as occasional visitor--a precedent which harms fathers" ability to gain joint custody of their children in divorce proceedings. Wood calls the current law on restraining orders "an efficient system.' We disagree. Yes, the system is efficient in separating men from their children and their homes. However, it is hardly efficient in delivering justice.
Unfortunately, the New Jersey Appellate Division overturned the decision over the summer. According to Heleniak:
In Crespo v. Crespo, the New Jersey Appellate Division overturned the June 18, 2008 ruling of Francis Schultz, who vacated the final restraining order (FRO) entered against defendant Anibal Crespo. Judge Schultz vacated the FRO entered pursuant to the Prevention of Domestic Violence Act because the standard of proof provided by the Act, the preponderance of evidence standard as opposed to the clear-and-convincing standard, violated the defendant's right to due process. (He also noted that the Act's "practice and procedure" components violate the separation of powers doctrine, but this finding had no affect on his decision to vacate the FRO and will not be discussed here.) Characterizing the competing private interests at stake as "victims' interests in being protected from domestic violence against defendants' liberty interests in being free to say what they wish and go where they please," and describing the governmental interest at stake as "interest in eliminating domestic violence and in affording immediate and effective protection to victims of domestic violence," the Appellate Division concluded that the relevant case law does not require "a burden of persuasion that more effectively eliminated the chance of a mistaken adjudication at the steep price of permitting countless more meritorious claims to be lost at the hands of the clear-and-convincing standard." Lawrence Lustberg, who submitted an amicus brief on behalf of the New Jersey Coalition for Battered Women, told the New Jersey Law Journal he was pleased that in addition to overturning Judge Schultz"s decision, "the court performed a full due process rights analysis." They did nothing of the sort. In footnote seven of their decision, the court stated: "Defendant has also argued that the Act improperly converts what is a criminal prosecution into a civil proceeding, damages his reputation, and interferes with his right to raise his children, to speak freely with his wife and children, and to enjoy the marital home. We find these arguments to have insufficient merit to warrant discussion in a written opinion." The rights of defendants shrugged off in that statement were obviously not taken into account when the panel weighed the competing interests in their standard of proof analysis. Likewise, they missed an important point of the defendant's Second Amendment argument, which is that defendants should not be deprived of a fundamental right as the result of a summary hearing in front a family court judge who is likely to be biased against them and mandated to apply the mere preponderance standard. The panel left open the issues of whether the lack of notice and the right to counsel could be grounds to vacate an FRO, but decided in the case before it the record did not indicate prejudice and therefore those grounds were inapplicable. It embraced the trial level decision Depos v. Depos, which held that defendants do not have a right to discovery in FRO hearings. Finally, on the issue of jury trials, it ruled that because an FRO action is at root an action in equity, the right to a jury does not attach. Because the case involves significant Constitutional issues, there is a good chance the New Jersey Supreme Court will take it.
Fortunately, Heleniak's prediction has come true. We congratulate him, wish him luck, and will keep readers informed of his progress.

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