NJ APPELLATE DIVISION: RESTRAINING ORDERS ARE FOR ACTUAL DOMESTIC VIOLENCE, NOT FOR ORDINARY DISPUTES BETWEEN FAMILY MEMBERS

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

Established case law of Silver v. Silver requires that Final Restraining Orders may only be granted when courts find by a preponderance of the evidence (meaning “more likely than not”) that the defendant perpetrated a predicate act of domestic violence as defined by the Prevention of Domestic Violence Act. Additionally, the court must find that the defendant poses an immediate or future danger to the plaintiff and that a restraining order is necessary in the first place to protect the victim.

Unfortunately, oftentimes, spouses of a deteriorating marriage file for a restraining order simply as a way to gain leverage in beginning a divorce process, as restraining orders can force the spouse to vacate the marital home and lose custody of their children.

The New Jersey Appellate Division just gave a huge N-O to such practices, making it clear that that's not the purpose of a restraining order - which can only be granted with cause.

In a strongly worded opinion, the New Jersey Appellate Division has just vacated a FRO issued by the Family Part in M.Y. v. S.K., emphasizing the critical need to distinguish between “ordinary domestic contretemps” and actionable domestic violence under the Prevention of Domestic Violence Act (PDVA).

The appellate court reversed the FRO in full, citing the trial judge's failure to apply the required legal framework under Silver v. Silver, including a complete absence of findings that a restraining order was necessary to “protect the victim from an immediate danger or to prevent further abuse.” The court also criticized the judge for denying the defendant his right to cross-examine the plaintiff and for conducting the proceedings in a manner that demonstrated “palpable disdain” for both litigants.

Writing per curiam, the court reiterated that the PDVA “is intended to assist those who are truly the victims of domestic violence,” not to address routine family discord. Quoting prior precedent, the decision reminds trial judges to “exercise care to distinguish between ordinary disputes and disagreements between family members and those acts that cross the line into domestic violence.” (R.G. v. R.G., 449 N.J. Super. 208, 225 (App. Div. 2017)).

At the heart of the case were emails sent by the defendant, S.K., to the plaintiff, M.Y., which the trial court characterized as abusive and threatening. However, the Appellate Division held that no findings were made by the trial judge showing the defendant acted with the required “purpose to harass,” as required under N.J.S.A. 2C:33-4. Moreover, the judge “engaged in no principled analysis” of whether a restraining order was needed under the factors listed in N.J.S.A. 2C:25-29(a).

The appellate panel further found that the trial judge demonstrated bias, noting disparaging comments made from the bench about the litigants and the judge’s refusal to allow proper argument or evidence. The case is remanded for a new trial before a different judge.

Attorney Louis J. Keleher of The Tormey Law Firm, representing the defendant, successfully argued for reversal. The plaintiff did not file a responding brief on appeal.

This decision adds to a growing line of cases (such as here, here, here, and here on FAA News) where appellate courts remind trial judges of the constitutional and procedural safeguards required in domestic violence proceedings - particularly the importance of distinguishing serious threats from the heated rhetoric of family discord.

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