4.14 REMEDIES AVAILABLE UNDER THE ACT NJ

4.14 REMEDIES AVAILABLE UNDER THE ACT NJ

Following a hearing and a finding of domestic violence, the court may issue an order granting any or all of the following relief, including any relief “necessary to prevent further abuse,” pursuant to N.J.S.A. 2C:25-29b.

4.14.1 4.14.2 4.14.3 4.14.4 4.14.5 4.14.6 4.14.7 4.14.8 4.14.9 4.14.10 4.14.11 4.14.12 4.14.13 4.14.14 4.14.15

Weapons Further acts of violence Exclusive possession of residence Parenting Time and Risk Assessments Monetary compensation, including support Professional domestic violence counseling Restraints from certain locations Communication restraints Other support and personal property Temporary custody Law enforcement accompaniment No in-house restraints Any other appropriate relief, including monitoring that relief Prohibition from possessing weapons Prohibition against stalking

4.14.1 Weapons – In addition to any other provisions, any restraining order issued by the court shall bar the defendant from purchasing, owning, possessing or controlling a firearm and from receiving or retaining a firearms purchaser identification card or permit to purchase a handgun pursuant to N.J.S.A. 2C:58-3 during the period in which the restraining order is in effect, or two years whichever is greater, except that this provision shall not apply to any law enforcement officer while actually on duty, or to any member of the Armed Forces of the United States or member of the National Guard while actually on duty or traveling to or from an authorized place of duty. [N.J.S.A. 2C:25-29b, effective January 14, 2004.]

4.14.2 Further acts of violence – An order restraining the defendant from subjecting the victim to domestic violence, as defined in this act. [N.J.S.A. 2C:25-29b(1).]

4.14.3 Exclusive possession of residence – An order granting exclusive possession to the plaintiff of the residence or household regardless of whether the residence or

IV - 15household is jointly or solely owned by the parties or jointly or solely leased by the parties. This order shall not in any manner affect title or interest to any real property held by either party or both jointly. If it is not possible for the victim to remain in the residence, the court may order the defendant to pay the victim’s rent at a residence other than the one previously shared by the parties if the defendant is found to have a duty to support the victim and the victim requires alternative housing. [N.J.S.A. 2C:25-29b(2).]

4.14.4 ParentingTimeandRiskAssessments-Anorderprovidingforparentingtime.The order shall protect the safety and well-being of the plaintiff and minor children and shall specify the place and frequency of parenting time. Parenting time arrangements shall not compromise any other remedy provided by the court by requiring or encouraging contact between the plaintiff and defendant. Orders for parenting time may include a designation of a place of parenting time away from the plaintiff, the participation of a third party, or supervised parenting time. [N.J.S.A. 2C:25-29b(3).]

The court shall consider a request by a custodial parent who has been subjected to domestic violence by a person with parenting time rights to a child in the parent’s custody for an investigation or evaluation by the appropriate agency to assess the risk of harm to the child prior to the entry of a parenting time order. Any denial of such a request must be on the record and shall only be made if the judge finds the request to be arbitrary or capricious. [N.J.S.A. 2C:25-29b(3)(a).]

The custodial parent can request an assessment of risk of harm to the child or children posed by unsupervised parenting time with the defendant prior to the entry of an order for parenting time. When this request is noted as a desired form of relief on the Complaint/TRO, or when the request is made either at the emergent or final hearing, a risk assessment must be ordered unless, on the record, the judge finds the request to be arbitrary or capricious and thus denies the request.

Risk Assessment reports must be completed on the “Visitation Risk Assessment Sheet” (See Appendix 15) and may be completed by in-court professional staff person or by an outside professional. The assessment shall serve as a minimum standard for assessing the potential risk of harm to children posed by establishing a parenting time schedule with the defendant. The order for a Risk Assessment should also prompt the setting of a return date before the court in approximately three weeks. The Risk Assessment report should be completed prior to the scheduled date and provided to the parties and counsel along with a “Protective Order” pursuant to the standards adopted by the Judiciary (See Appendix 16).

If interim parenting time is ordered during the initial three week period, and the vicinage has a court-sponsored or approved supervised visitation site, the parenting time should be supervised by an individual designated by the court or through the auspices of the supervised parenting time program and should have clear instructions regarding the arrival and departure of the victim, children and defendant

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so as not to compromise the safety of the victim in any way. Security must be available at the parenting-time site, and the individual(s) who is (are) supervising the parenting time must be advised as to the emergency procedures that must be employed if a particular parenting time session appears dangerous. If the Risk Assessment has not been completed before the return date, the court may enter an interim order to continue supervised visitation or hold the hearing to consider any additional applications or evidence that relates to the issue of parenting time.

The court shall consider suspension of the parenting time order and hold an emergency hearing upon an application made by the plaintiff certifying under oath that the defendant’s access to the child pursuant to the parenting time order has threatened the safety and well-being of the child. [N.J.S.A. 2C:25-29b(3)(b).]

Pursuant to N.J.S.A. 2C:25-29b(3)(b), a plaintiff in a domestic violence matter may, as a form of pre- or post-dispositional relief, request that an order for parenting time issued pursuant to N.J.S.A. 2C:25-29b(3) be suspended. A hearing must then be held upon the plaintiff’s application that the defendant’s continued access to the child or children pursuant to the parenting time order has threatened the safety and well-being of the child or children.

This request may be made immediately upon the entry of an order for parenting time or at any point subsequent to the entry of such an order.

4.14.5 Monetary Compensation, including Support - An order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence. The order may require the defendant to pay the victim directly, to reimburse the Victim of Crime Compensation Agency for any and all compensation paid by the Victim of Crime Compensation Agency directly to or on behalf of the victim, and require that the defendant reimburse any parties that may have compensated the victim, as the court may determine. Compensatory losses shall include, but are not limited to, loss of earnings or other support, including child or spousal support, out-of-pocket losses for injuries sustained, cost of repair or replacement of real or personal property damaged or destroyed or taken by the defendant, cost of counseling for the victim, moving or other travel expenses, reasonable attorney’s fees, court costs, and compensation for pain and suffering. Where appropriate, punitive damages may be awarded in addition to compensatory damages. [N.J.S.A. 2C:25-29b(4).]

Each county shall establish a procedure for the collection and distribution of emergent monetary relief, whether ordered by the Superior Court or Municipal Court. Special care should be taken to avoid the entry of an order that requires the victim to have contact with the defendant in order to receive money under this section. Courts. Courts should give consideration to all forms of monetary relief listed in the statute, above.

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4.14.6

4.14.7

4.14.8

4.14.9

Support may be ordered in an FRO pursuant to N.J.S.A. 2C:25-29b (4) and (10), which provides for both emergent monetary relief that includes emergency support for minor children and compensatory losses in the form of child or spousal support. An order for emergency monetary relief or child support or spousal support may be entered without prejudice to a pending dissolution case, particularly when done on an ex parte basis. Monetary compensation in the form of ongoing support utilizing the child support guidelines, where applicable, should be issued at the final hearing if the court is able to consider testimony. All child support shall be paid by income withholding from any source of funds or income.

Professional domestic violence counseling - An order requiring the defendant to receive professional domestic violence counseling from either a private or court- appointed source and, in that event, at the court’s discretion requiring the defendant to provide the court at specified intervals with documentation of attendance at the professional counseling. The court may order the defendant to pay for the professional counseling. [N.J.S.A. 2C:25-29b(5).]

This section permits the court to order the defendant into a batterers intervention program as part of the professional domestic violence counseling option. Victims shall never be ordered into counseling of any kind.

Restraintsfromcertainlocations-Anorderrestrainingthedefendantfromentering the residence, property, school, or place of employment of the victim or other family or household members of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim or other family or household members. [N.J.S.A. 2C:25-29b(6).]

A victim shall not be required to disclose any residence or place of employment nor shall the court require such disclosure on the record. The FRO should include (where appropriate) specific names and addresses identifying the locations from which the defendant is barred and the people that the defendant is restrained from contacting, communicating with, harassing, or stalking.

Communicationrestraints-Anorderrestrainingthedefendantfrommakingcontact with the plaintiff or others, including an order forbidding the defendant from personally or through an agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact with the victim 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 victim. [N.J.S.A. 2C:25-29b(7).]

Othersupportandpersonalproperty-Anorderrequiringthatthedefendantmakeor continue to make rent or mortgage payments on the residence occupied by the victim if the defendant is found to have a duty to support the victim or other dependent household members; provided that this issue has not been resolved or is not being litigated between the parties in another action. [N.J.S.A. 2C:25-29b(8).]

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An order granting either party temporary possession of specified property, such as an automobile, checkbook, documentation of health insurance, an identification document, a key, and other personal effects.

An order awarding emergency monetary relief, including emergency support for minor children, to the victim, and other dependents, if any. An ongoing obligation of support shall be determined at a later date pursuant to applicable law. [N.J.S.A. 2C:25-29b(10).]

The court should determine, where necessary, the issue of paternity and the duty to support. If the defendant has a duty to support, as established by a prior finding of paternity, a Certificate of Paternity, an admission of paternity, or a presumption of paternity based on marriage, the court should review the available information, apply the Child Support Guidelines if appropriate and enter a support order payable through income withholding. The order should be referenced in the FRO and entered on the two page support order form, payable and enforced through probation. In the event paternity of defendant is not established, any money paid for child support may be refunded to the defendant in accordance with applicable case law. The method by which the court determined paternity shall be indicated on the order.

If paternity has not been established, the court may order genetic testing and employ the same procedures used by the county in FD matters. In this instance the judge should enter an FRO including all of the other reliefs and restraints. This case will be “disposed” in FACTS with a standing FRO. When the results of the genetic test are received, the case should be reopened on the court’s motion for a hearing on the paternity and support issues. All proceedings are held on the FV docket before a judge.

Following the entry of an order under the FV docket, all subsequent applications between the parties involving paternity, custody, parenting time and support shall be taken and heard under the FV docket. A separate FD complaint should not be opened to address these issues. However, this section should not be construed to prevent a party from filing a dissolution complaint.

If an FRO has been entered with relief granted and there is an FD which has been filed but no orders yet entered, the FD will be dismissed and all subsequent applications/modifications (e.g., support, custody, parenting time) shall be made under the FV, so long as the FV is still in effect. If there is a pending FM, all reliefs except the restraints shall be incorporated into the FM with the restraints continuing in the FV docket and on the FRO. Subsequent applications or modifications for support, custody or parenting time should take place within the FM docket number. The FV should be reopened and modified as needed so the FM and FV are consistent.

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After support has been entered on the FV, an application to dismiss the FRO and continue the support order should be addressed pursuant to the procedures in the FD manual (section 1104) to ensure that the support continues.

In processing an FV case where there is an existing FD case, the following provisions of the FD manual should be employed. The following is what is stated in Section 1104 of the Non-Dissolution Manual, Standing/Pre-Existing FD Order Prior to an FV Case which has been approved by the Conference of Family Presiding Judges:

If there exists a previous FD order addressing custody/parenting time and/or child support, prior to the filing of a domestic violence action, that order shall be preserved under the FD docket. The FD court file must be forwarded to the judge hearing the FRO or continued TRO for review and any adjustment to the FD order to insure conflicting orders do not exist. The FD order should be referenced in the FV order to insure all affected parties, divisions and agencies are aware of the multiple orders. The FD file shall be joined to the FV file for as long as the FV case is active. For tracking purposes, a comment should placed in FACTS indicating that the FD court jacket is with the FV team. The FV team should link the cases in FACTS to so that the FD and FV cases are scheduled at the same time for any future court action.

When any party wishes to file for a modification of the FD order during the life of the domestic violence restraining order, that case must be heard by the judge hearing the current FV matter. Parties should be referred to the FV team for scheduling of their FD case while the restraining order is active. A reference to the FV restraining order should be visible on any revised FD order and provided to all entities that might be affected by the revision (i.e., parties, child support enforcement, supervised visitation).

If the FV action is dismissed the judge will determine the continued status of the FD order and note that determination on the FV dismissal order, and on a new FD order, if necessary. At that time the jacket shall be returned to the FD team and noted in FACTS case comments.

If the FV case has child support, the Probation Division should be sent copies of all modified FRO and indefinite TRO orders. If the retraining order is dismissed, the DV indicator must be updated by Family staff and a copy of the dismissed restraining order must be forwarded to Probation.

If there is a restraining order in effect and the plaintiff begins to IV - 20

receive welfare, the County Board of Social services shall be able to file a complaint for support under a new FD docket.

NOTE: Normal FACTS/ACSES data entry procedures must be completed.

End of quotation from the Non-Dissolution Manual.

It is important to note that enforcement of support obligations or emergent monetary relief can be civil or criminal. If emergent monetary relief is entered under Part I of the FRO, then enforcement is by way of criminal contempt and mandatory arrest pursuant to N.J.S.A. 2C:29-9b. (See Section VI)

4.14.10 Temporary Custody - An order awarding temporary custody of a minor child. The court shall presume that the best interests of the child are served by an award of custody to the non-abusive parent. [N.J.S.A. 2C:25-29b(11).]

Violations of orders for temporary custody issued pursuant to this section are included within the scope of N.J.S.A. 2C:29-9b, Contempt. Arrest and criminal charges are mandatory when such an order is violated.

As set forth in the statute, when making custody decisions in domestic violence cases, the court must presume that “the best interests of the child are served by an award of custody to the non-abusive parent.” This mandate reflects the policy stated in the legislative findings section, N.J.S.A. 2C:25-18, “that there is a positive correlation between spousal abuse and child abuse, and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence.”

4.14.11 Law Enforcement accompaniment - An order requiring that a law enforcement officer accompany either party to the residence or to 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. This order shall be restricted in duration. [N.J.S.A. 2C:25-29b(12).]

4.14.12 No in-house restraints - Notwithstanding any provision of 2C:25-17, et seq. to the contrary, no order issued by the Family Division of the Chancery Division of the Superior Court pursuant to 2C:25-28 or 2C:25-29 regarding emergency, temporary or final relief shall include an in-house restraining order which permits the victim and the defendant to occupy the same premises but limits the defendant’s use of that premises. [N.J.S.A. 2C:25-28.1]

In-house restraining orders are specifically prohibited.

4.14.13 Any other appropriate relief, including monitoring that relief - An order granting any other appropriate relief for the plaintiff and dependent children, provided that the

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4.15

plaintiff consents to such relief, including relief requested by the plaintiff at the final hearing, whether or not the plaintiff requested such relief at the time of the granting of the initial emergency order. [N.J.S.A. 2C:25-29b(14).]

The Plaintiff should not be denied any relief on the basis that it was not sought at the emergent hearing.

An order that requires that the defendant report to the intake unit of the Family Division of the Chancery Division of the Superior Court for monitoring of any other provision of the order. [N.J.S.A. 2C:25-29b(15).]

An order requiring the defendant to undergo a psychiatric evaluation. [N.J.S.A. 2C:25-29b(18).]

4.14.14 Prohibition from possessing weapons - In addition to the order required by this subsection prohibiting the defendant from possessing any firearm, the court may also issue an order prohibiting the defendant from possessing any other weapon enumerated in subsection r. of N.J.S.A. 2C:39-1, and ordering the 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. The judge shall state with specificity the reasons for and scope of the search and seizure authorized by the order. [N.J.S.A. 2C:25-29b(16).] See Section 5.10 for procedure.

A specific description of the weapon and its believed location should be set forth with as much detail as is known. The court must make findings on the record and state with specificity the reasons for its decision and the scope of the search. (See also Section on Weapons.)

4.14.15 Prohibition against stalking An order prohibiting the defendant from stalking or following, or threatening to harm, to stalk or to follow, the complainant or any other person named in the order in a manner that, taken in the context of past actions of the defendant, would put the complainant in reasonable fear that the defendant would cause the death or injury of the complainant or any other person. Behavior prohibited under this act includes, but is not limited to behavior prohibited under the provisions of N.J.S.A. 2C:12-10. [N.J.S.A. 2C:25-29b(17).]