Defendant must be advised of right to hire an attorney

Defendant must be advised of right to hire an attorney

A.R.,

          Plaintiff-Respondent,

v.

A.C.,

     Defendant-Appellant.
______________________________

                    Argued February 4, 2019 – Decided February 27, 2019

                    Before Judges Fasciale and Gooden Brown.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Middlesex County,
                    Docket No. FV-12-1050-18.

          NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2395-17T1



PER CURIAM
       Defendant appeals from a January 16, 2018 final restraining order (FRO)

entered in favor of plaintiff (his ex-girlfriend) under the Prevention of Domestic

Violence Act (PDVA),  N.J.S.A. 2C:25-17 to -35. We reverse, remand, and in

fairness to the judge who entered the FRO, we direct that a different judge

conduct a new FRO hearing.

      Defendant argues that the FRO judge failed to advise him of the

consequences of proceeding pro se. Before the hearing began, the following

exchange between the judge and defendant took place:

            Q: Do you understand that by proceeding today, you are
            waiving your right to a lawyer and [you are] acting as
            your own lawyer?

            A: Yes.

At a minimum, defendant contends that the judge should have informed him that

if he entered an FRO, defendant's name would appear in the central registry

under the PDVA. Defendant's other argument is that there was no evidence to

satisfy the second prong of Silver v. Silver,  387 N.J. Super. 112, 126-27 (App.

Div. 2006). Consequently, he seeks a new hearing.

      We have previously said that an FRO "is not merely an injunction entered

in favor of one private litigant against the other." J.S. v. D.S.,  448 N.J. Super.
 17, 22 (App. Div. 2016). Courts "have consistently recognized that the issuance


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 of an FRO 'has serious consequences to the personal and professional lives of

those who are found guilty of what the Legislature has characterized as a serious

crime against society.'" Franklin v. Sloskey,  385 N.J. Super. 534, 541 (App.

Div. 2006) (quoting Bresocnik v. Gallegos,  367 N.J. Super. 178, 181 (App. Div.

2004)); see also  N.J.S.A. 2C:25-18. "Once a final restraining order is entered,

a defendant is subject to fingerprinting,  N.J.S.A. 53:1-15, and the

Administrative Office of the Courts [(AOC)] maintains a central registry of all

persons who have had domestic violence restraining orders entered against them,

N.J.S.A. 2C:25-34." Franklin,  385 N.J. Super. at 541 (quoting Peterson v.

Peterson,  374 N.J. Super. 116, 124 (App. Div. 2005)); see also D.N. v. K.M.,

 216 N.J. 587, 593 (2014) (Albin, J., dissenting) (cataloging the consequences

under  N.J.S.A. 2C:25-29(b) resulting from entry of a domestic violence FRO).

      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. v. K.M.,  429 N.J. Super. 592, 606 (App. Div. 2013).

Although due process does not require the appointment of counsel for indigent

defendants in a domestic violence proceeding who are opposing a request for an

FRO, fundamental fairness requires that a defendant understands that he or she




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 has a right to retain legal counsel, and that a defendant is afforded a reasonable

opportunity to retain an attorney. Ibid.

      In D.N., we concluded that D.N. relinquished her right to seek counsel

because the judge "adequately questioned [her] regarding her decision to decline

the opportunity to obtain legal representation." Id. at 607. In that case, the judge

asked D.N. (1) whether she wanted the opportunity to obtain counsel, pointing

out that the opposing party was represented; (2) whether she understood what

would happen if a final restraining order was entered; and (3) whether she knew

that she might be subject to civil penalties and other consequences. Ibid. The

judge also advised D.N. that she could request an adjournment to consult with

an attorney or further prepare for the final hearing. Ibid. Given that advice, we

held that D.N.'s waiver of her right to seek counsel was clear and knowing.

      Defendant should have been likewise informed. In fairness to the FRO

judge, and because he made credibility findings, we direct that a different judge

conduct the new hearing on remand.

      Reversed and remanded. We do not retain jurisdiction.