The domestic violence system in New Jersey is intended to help legitimate victims obtain the protections they need and deserve from domestic offenders. It is, however, all too common to see the New Jersey domestic violence statute (N.J.S.A. 2C:25-17, et seq.) abused and misused by litigants who do not genuinely need protection and instead seek a restraining order for some improper purpose (for example, gaining an advantage in divorce litigation). The recent unreported (and therefore nonprecedential) Appellate Division decision in A.J.C. v. G.A.C. is a cautionary tale for any litigant looking to misuse the domestic violence statute, as the Court makes clear that you should not expect to maintain your restraining order if you are not legitimately concerned for your safety or fearful of the alleged abuser.
In A.J.C., the parties were involved in an eight-month dating relationship. The plaintiff obtained a final restraining order (“FRO”) against the defendant in 2013 on the grounds of harassment and assault. In 2016, the defendant moved for a Carfagno hearing seeking to vacate the FRO contending in part that plaintiff was not afraid of defendant, and that the parties had engaged in sexual intercourse after the FRO was entered. The defendant introduced a recording from one of their post-FRO sexual encounters, which made clear that the plaintiff was not fearful of the defendant and viewed the FRO against defendant as a “loaded weapon…that I can pull and point at you at any time…No, the FRO is like a gun.” The trial court dismissed the FRO following a 15-day trial and the plaintiff appealed.
Interestingly, the plaintiff maintained on appeal that the protection of the restraining order was still needed despite having maintained a sexual relationship with the defendant following entry of the FRO. The Appellate Division affirmed the trial court’s dismissal of the FRO, relying upon the recording produced by the defendant and the plaintiff’s objective lack of fear. The Appellate Division concluded in part that “the explicit sexual encounter memorialized in the recording directly contradicted plaintiff’s assertion that [plaintiff] objectively feared the defendant.”
This decision demonstrates that the domestic violence system in New Jersey is intended to be used a shield to protect victims, and not as a sword (or a “gun”). Although this is an unreported and unpublished case, it appears to be one in which justice was served.
Thomas Roberto, Esq. is a shareholder and partner with ALBFRM in Southern New Jersey. Domestic Violence cases are very serious matters with long-lasting consequences. Seeking out an attorney with experience in these matters as well as the many other family law issues that arise out of Domestic Violence cases is critical. Contact our Haddonfield office today to schedule a consultation should you find yourself in this difficult situation.
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