Restraining orders are court orders which are designed when immediate protection from an abuser is necessary.

Unfortunately, often times, parties in a deteriorating relationship seek restraining orders as an attempt to alienate parents from their children.

The New Jersey Appellate Division just gave a huge N-O to such practices, making it clear that restraining order can only be granted for "acts that cross the line into domestic violence" and not for "ordinary disputes and disagreements between family members."

Specifically, the court emphasized that a petition for a restraining order due to "harassment" must state a claim that the defendant actually "had the intent to harass" and that "a complaint of feeling harassed is insufficient to establish the offense of harassment."

The parties are identified in the court record only as D.M.Z., Plaintiff-Respondent (woman) and C.J.H., JR.,  Defendant-Appellant (man).

The parties were previously in a dating relationship and are co-parents of two teenage children, a son and a daughter.

On June 10, 2022, plaintiff filed a complaint against defendant alleging he had committed acts of domestic violence against her, specifically "terroristic threats and harassment," and seeking injunctive relief pursuant to the Prevention of Domestic Violence Act (PDVA) - i.e. a restraining order.

In the complaint, plaintiff asserted that defendant had "responded to her daughter's softball game" and "threatened [her] when [she] refused to talk to [him]." She reported defendant "stated 'he was gonna f__k me up' and he will 'f__k me up out here.'" She further reported defendant "called her names, made disparaging remarks about her body, and threatened to physically harm her in front of their daughter."

She noted "previous reports for harassment/no arrest" and "previous dismissed TRO/FRO" as prior history of domestic violence. 

Based on plaintiff's complaint, the local police department granted her an immediate temporary restraining order (TRO) on June 11, 2022.

On June 29, 2022, a Family Part judge sitting in Camden County conducted a final hearing, during which both parties appeared pro se and testified.

Plaintiff testified defendant called her from their daughter's softball game, which was down the street from her residence. He wanted to discuss taking their son to Canada for the summer, to which she said, "absolutely not." After defendant kept "pushing the issue," she told him, "Your life is in disarray and you should worry about that," and hung up on him. Defendant called her again and she did not answer. She arrived at the softball game shortly thereafter. Defendant tried to talk to her again about taking their son to Canada and she told him twice, "I don't want to talk to you."

She testified: 

So, as I'm walking away with my daughter, he started, like, an argument basically, calling me names and saying, I don't give a f__k, I'm taking him to Canada. I'm going to get a court order, it can be enforced. And just basically harassing me. So, then now, I'm—you know, we're arguing with each other in public at a softball field. Our daughter is crying. He started saying, I will f__k you up out here. B__h, I will f__k you up. I don't know who the f__k you think you are. Threatening bodily harm to me. And in the video, you can see me saying, come on, we're getting pizza, like trying to continue to walk away, and he is continuing his tirade.

Plaintiff estimated the encounter lasted five minutes, and then defendant drove way. She filed for and was granted the TRO at the local police station that evening.

In response to the court's question whether she had "problems with the defendant in the past," plaintiff answered, "Problems such as this. Conflict of parenting issues." She further testified defendant threatened her with bodily harm in the past and harmed her twice before: eleven years prior, defendant pulled her out of bed by her hair and dragged her to the living room; and on another occasion, he "pushed [her] down a flight of steps" but she caught herself before she fell. 

Plaintiff explained her reasons for seeking the FRO: 

I'm just afraid of what he does because he's very erratic, and he - that is why I'm afraid. Like, I would have never - when I said I didn't want to talk to him, I would have thought he would just leave me alone. But I never know what he's going to do. Is he going to show up at my house, is he not going to show up? Is he going - I don't know. And I'd rather just live my life in peace.

The Defendant responded that he called plaintiff from the softball field: So I said, you know, I'd like him to work an internship, plus I want to send him to Canada for two weeks. And she tells me, someone who lives in their grandma's basement shouldn't be trying to call the shots. So, I'm like - like, why the F are you talking to me like that? I don't - you know, where I live doesn't matter. So, she hangs up on me.

Defendant testified he tried to speak with plaintiff at the softball field but plaintiff rebuffed him. He said his comments were precipitated by plaintiff's cursing at him, calling him a "b__h" in front of their daughter and other spectators at the game, and saying he was not a good father and was not in his kids' lives.

Defendant testified: 

I said, I will f__k you up out here. You don't want to see me in court. I'll squash you with my wallet. You'll hear from my lawyer. At no point did I approach her.

Twice more during the hearing, defendant reiterated he did not mean he was going to physically harm plaintiff, but rather he would get his attorney and "smash her" with his wallet in court. 

Disputing the necessity of the FRO, defendant argued plaintiff was not afraid of him because she continued to text him the evening after the incident.

Defendant also denied committing any prior acts of domestic violence, instead testifying plaintiff had hit him and broke the skin, which resulted in his obtaining an FRO against her. 

The judge then ruled, "I make a finding that on this particular occasion, there was a substantial threat of violence made that would be by the preponderance or greater weight of the evidence considered terroristic threats. Under those circumstances, I'm going to issue a final restraining order."

On August 16, 2022, the court issued a supplemental oral decision on the record with additional findings of fact and conclusions of law to more specifically address the two prongs of Silver v. Silver: whether defendant committed an act of violence and whether an FRO should issue. The court reiterated it had found defendant made "a specific terroristic statement . . . that he was going to f--k [plaintiff] up and he would f--k up out here," and those statements were "terroristic threats, substantial harassment, that gave the plaintiff concern and being harmed by the acts of the defendant."

The court then noted it was "mindful that there is some lacking proofs here" regarding prong two of Silver. Relying on Cesare v. Cesare and McGowan v. O'Rourke, the court found the predicate acts to be sufficiently egregious to warrant the issuance of an FRO, and therefore found prong two of Silver had been met.

The defendant, now represented by Attorney Rachel L. Baxter Esq. of The Law Office of Rajeh A. Saadeh, LLC, appealed this decision.

In a written ruling just released, Judges Gooden Brown and Puglisi agreed and vacated the FRO:

Under the first prong of Silver, the judge must determine whether plaintiff proved, by a preponderance of the credible evidence, that defendant committed one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a).

Plaintiff here alleged defendant committed acts of terroristic threats and harassment.

A person is guilty of terroristic threats "if he threatens to commit any crime of violence with the purpose to terrorize another" or "if he threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out." N.J.S.A. 2C:12-3(a)-(b). Although not specifically noted in the record, we infer the court found defendant had committed terroristic threats under the first section, since there was no threat to kill plaintiff.

"In the domestic violence context, an act of terroristic threats requires that (1) the abuser threatened the victim; (2) the abuser intended to threaten the victim; and (3) 'a reasonable person would have believed the threat.'" State v. Dispoto. In ruling plaintiff had established the predicate act of terroristic threats, the judge stated, "I make a finding that on this particular occasion, there was a substantial threat of violence made that would be by the preponderance or greater weight of the evidence considered terroristic threats."

In addition to misstating the elements of the statute as a "substantial threat of violence," the court did not address the second or third prongs: whether the threat was made with the purpose to terrorize another and whether a reasonable person would have believed the threat. The court's reasons in the supplemental decision further compound the problem by finding defendant's statements "gave the plaintiff concern," when the analysis must be objective, not subjective. Because the court's decision did not establish plaintiff proved the requisite elements of terroristic threats, the finding cannot stand.

A person is guilty of harassment if, with purpose to harass another, he: 

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm; 

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person. 

[N.J.S.A. 2C:33-4.]

Again, although not clear from the record, we infer the judge found defendant violated section (a) of the statute because the conduct involved a statement to plaintiff made in offensively coarse language. As with the offense of terroristic threats, an element of harassment is that a defendant had the intent to harass. See State v. Hoffman. A plaintiff's complaint of feeling harassed is insufficient to establish the offense of harassment. This is particularly critical where allegations of harassment arise from a familial dispute, where a judge must "distinguish between ordinary disputes and disagreements between family members and those acts that cross the line into domestic violence." R.G. v. R.G.

Because the court's decision did not establish plaintiff proved the requisite elements of harassment, the finding cannot stand.

Accordingly, the Appellate Division panel reversed the FRO, reinstated the TRO, and remanded the matter back to the Family Part "for further proceedings consistent with this opinion."

Judge Lisa A. Puglisi was serving in the Criminal Division in the Ocean Vicinage. As previously reported here on FAA News, to alleviate the desperate shortage of judges in the Appellate Division, effective August 1, 2023, two Superior Court judges, including Judge Puglisi, were temporarily appointed to the higher court.

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