Domestic Violence & Due Process Rights

By: Charles F. Vuotto, Jr., Esq.

The Appellate Division recently published a decision in A.A.R. v. J.R.C.[1]  making it clear that procedural due process requires judges, before domestic violence trial, to inform defendants both of the serious consequences resulting from the entry of a final restraining order (FRO) and their right to retain legal counsel.  This column suggests that domestic violence complaints served upon defendants include a specific rider advising them of their rights and the possible ramifications of the entry of an FRO. Further, it is suggested that trial judges read to defendants from a pre-approved script provided by the Administrative Offices of the Courts (AOC)summarizing those rights and ramifications before commencement of a domestic violence trial.

In A.A.R. v. J.R.C., the defendant appealed from an April 14, 2021 FRO based on the predicate act of assault.  The underlying facts concerning the alleged domestic violence are not relevant to this column.  What is important is that neither party was represented by counsel at trial.  At the beginning of the FRO hearing, the judge asked defendant if he was ready to proceed with trial, and the defendant answered in the affirmative.  The trial judge did not inform defendant of his right to retain counsel, or of the serious consequences that could ensue if an FRO was entered against him prior to trial.  The trial judge entered an FRO at the conclusion of the trial.  It was at this point that the trial judge detailed the consequences of the FRO, including the fact that defendant’s fingerprints and photographs would be included in the New Jersey Domestic Violence Registry.  As the judge imposed those consequences, defendant stated, “I feel like…[a]t this point, I’m going to need a lawyer[.]” The trial judge, however, denied defendant’s request because he “already heard the case.”  The appeal followed.

In ruling upon the defendant’s appeal, the Appellate Court held that:

“The right to seek counsel is an important due process right that affords defendants a meaningful opportunity to defend against a complaint in domestic violence matters[.]’ D.N., 429 N.J. Super. at 606. In that regard, we held that due process does not require the appointment of counsel for indigent defendants in a domestic violence proceeding seeking an FRO. Ibid. Nevertheless, due process does require that a defendant understands that he or she has a right to retain legal counsel and receives a reasonable opportunity to retain an attorney. Ibid.”[2]

In addition to the foregoing, the Appellate Court made it clear that,

“Relatedly, we conclude that due process also requires trial courts to apprise domestic violence defendants, in advance of trial, of the serious consequences should an FRO be entered against them.” Id.

Quoting from Peterson v. Peterson,[3] the Court noted that:

“Once [an FRO] is entered, a defendant is subject[ed] to fingerprinting, N.J.S.A. 53:1-15, and the Administrative Office of the Courts maintains a central registry of all persons who have had domestic violence restraining orders entered against them, N.J.S.A. 2C:25-34. Violation of a restraining order constitutes contempt, and a second or subsequent non-indictable domestic violence contempt offense requires a minimum term of thirty days imprisonment. N.J.S.A. 2C:25-30. The issuing court may also impose a number of other wide-reaching sanctions impairing a defendant’s interests in liberty and freedom in order “to prevent further abuse.” N.J.S.A. 2C:25-29(b).”[4]

In addition to the foregoing, the Appellate Court in A.A.R. v. J.R.C. noted that, “Furthermore, familial relationships may be fundamentally altered when a restraining order is in effect. Chernesky v. Fedorczyk, 346 N.J. Super. 34, 40, 786 A.2d 881 (App. Div. 2001).”[5]

The Appellate Court in A.A.R. v. J.R.C. noted the trial judge failed to inform Defendant in advance of trial that he had a right to retain legal counsel and that failure alone would have required reversal.  In addition, it was not until after the issuance of the FRO did the trial judge  inform the Defendant of the significant consequences of the entry of an FRO including placement on a domestic abuser registry . The Appellate Court concluded by noting that in any event, advising any Defendant of their right to retain counsel without also explaining legal exposures is simply an empty platitude.

Although this author believes it was likely an innocent oversight by the trial judge in A.A.R. v. J.R.C. and most judges do give such advisement of the right to counsel and possibly the serious ramification stemming from the issuance of an FRO prior to the commencement of a  domestic violence trial, it is herein suggested that a notice be appended to all domestic violence complaints expressly advising defendants of their right to counsel and  the serious ramifications stemming from the entry of an FRO. A shorter version in the form of an AOC-pre-approved script should be created for trial judges to read to defendants prior to the commencement of any domestic violence trial. A suggestion of the proposed notice and script are annexed to this column.

RIDER

PROPOSED NOTICE TO DEFENDANTS AND SCRIPT FOR TRIAL JUDGES

           ****NOTICE****

You have been served with a Complaint under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. §§2C:25-17 to 2C:25-35. Procedural due process requires that you be informed prior to the domestic violence trial both of the serious consequences resulting from the entry of Final Restraining Order (FRO) and of your right to obtain legal counsel.

It is recommended that you consider consulting with a qualified New Jersey attorney with experience in Domestic Violence matters. You have the right to consult with an attorney of your choosing.

The issuance of an FRO has serious consequences to the personal and professional lives of those who are found to have committed an act of domestic violence, which the New Jersey legislature has characterized as a serious crime against society. The following list represents some but not all of the serious consequences you may face if an FRO is entered against you:

1. The Court shall grant Plaintiff any relief necessary to prevent further abuse.
2. You may be restrained from entering your residence and/or property, school, or place of employment of the Plaintiff or of other family or household members of the Plaintiff.
3. You may be required to stay away from any specified place that is named in the Order and is frequented by the Plaintiff or other family or household members.
4. The FRO can prohibit you from stalking or following, or threatening to harm, to stalk or follow, the Plaintiff or any other person named in the order in a manner that taken in the context of your past actions, would put the Plaintiff in reasonable fear that you would cause the death or injury of the Plaintiff or any other person.
5. You may be restrained from contacting the Plaintiff or others, including an order forbidding you from personally or through an agent initiating any communication likely to cause annoyance or alarm. Such an order can extend to the Plaintiff or other family members, or their employers, employees or fellow workers or others with whom communication would be likely to cause annoyance or alarm to the Plaintiff.
6. An order can be entered granting exclusive possession to the Plaintiff of the residence or household regardless of whether the residence or household is jointly or solely owned by you and the Plaintiff or jointly or solely leased by the parties. The FRO may order you to pay the Plaintiff’s rent out of residence other than the one previously shared by you if you are found to have a duty to support the Plaintiff and the Plaintiff requires alternative housing.
7. The Court can order a temporary custody award of a minor child. Please note that the Court is required by statute to presume that the best interests of the child are served by an award of custody to the non-abusive parent.
8. An order may be entered providing for parenting time. This may include an order directing supervision of you during your parenting time with your children. Investigations concerning custody and parenting time may be ordered. The Court may order an appropriate agency to assess the risk of harm to the child prior to the entry of a parenting time order in your favor.
9. You will be barred from purchasing, owning, possessing or controlling a firearm and from receiving or retaining a firearm’s purchaser identification card or permit to purchase a handgun pursuant to J.S.A. 2C:58-3 during the period in which the Restraining Order is in effect or two years, whichever is greater.
10. The court can order a search for and seizure of any firearm or other weapon at any location where the Judge has reasonable cause to believe the weapon is located.

You may be ordered to make or continue to make rent or mortgage payments on the residence occupied by the Plaintiff if you are found to have a duty to support the Plaintiff or other dependent household members.

11. You may be ordered to pay the Plaintiff monetary compensation for losses suffered as a direct result of the act of domestic violence including attorney’s fees and costs and/or lost wages.
12. The Plaintiff may be awarded emergency monetary relief, including emergency support for minor children, to the Plaintiff and other dependents, if any.
13. The Court may enter an order granting any other appropriate relief for the Plaintiff and dependent children provided that the Plaintiff consents to such relief, including the relief requested by the Plaintiff after final hearing, whether or not the Plaintiff requested such relief at the time of the granting of the initial emergency order.
14. You may be ordered to received professional domestic violence counselling from either a private source or a source appointed by the Court and, in that event, you may be required to provide the Court at specified intervals with documentation of attendance at the professional counselling. You may be ordered to pay for this counselling.
15. You may be ordered to undergo a psychiatric evaluation.
16. The FRO may grant either party temporary possession of specified personal property, such as an automobile, a checkbook, documentation of health insurance, an identification document, a key, and other personal effects.
17. The Court can enter an order requiring that a law enforcement officer accompany either party to the residence or any shared business premises to supervise the removal of personal belongings in order to ensure the personal safety of the Plaintiff when a Restraining Order has been issued.
18. The Court may enter an order that requires you to report to the Intake Unit of the Family Part of the Chancery Division of the Superior Court for monitoring or any other provision of the Order.
19. The Court may enter an order directing the possession of any animal owned, possessed, leased, kept or held by either party or a minor child residing in the residence. Please note that if you have abused or threaten to abuse such animal, there shall be a presumption that possession of the animal shall be awarded to the non-abusive party.
20. You are subject to fingerprinting pursuant to J.S.A. 53:1-15.
21. You will be included on a central registry maintained by the Administrative Office of the Courts of all persons who have had domestic violence restraining orders entered against them. ( J.S.A. §2C:25-34)
22. If you are a licensed professional, an FRO may create negative ramifications with the applicable licensing board.
23. There are severe penalties for violating a Restraining Order. Violation of a Restraining Order constitutes contempt, and a second or subsequent non-indictable domestic violence contempt offense requires a minimum term of 30 days imprisonment. (See J.S.A. §2C:25-30)
24. Lastly, familiar relationships may be fundamentally altered when a Restraining Order is in effect.

[1] A.A.R. v. J.R.C., No.-2804-20, 2022 N.J. Super. LEXIS 51 (App. Div. April 25, 2022)

[2] A.A.R. v. J.R.C., 2022 N.J. Super. LEXIS 51 at pages 3, 4.

[3] 374 N.J. Super. 116, 124, 863 A.2d 1059 (App. Div. 2005)

[4] A.A.R. v. J.R.C., 2022 N.J. Super. LEXIS 51 at pages 4, 5.

[5] Id.