No egregious action to warrant restraining order A.B., v.
D.M.O.,
Defendant-Appellant.
_______________________
Submitted May 20, 2020 – Decided June 8, 2020
Before Judges Koblitz and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Passaic County,
Docket No. FV-16-1688-19.
NOT FOR PUBLICATION WITHOUT THE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 i s limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4648-18T3
PER CURIAM
Defendant D.M.O. 1 appeals from the May 29, 2019 Family Part order,
granting plaintiff A.B. a final restraining order (FRO), pursuant to the
Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.
Defendant argues that plaintiff presented insufficient evidence of the predicate
acts of harassment, N.J.S.A. 2C:33-4, and cyber harassment, N.J.S.A. 2C:33-
4.1, and that plaintiff was in need of a FRO. Because the court's analysis of
the second prong of the test announced in Silver v. Silver, 387 N.J. Super. 112
(App. Div. 2006), was incomplete and failed to consider the relevant N.J.S.A.
2C:25-29(a) factors, we reverse.
Plaintiff, now seventy-two years old, and defendant, now forty-one years
old, were involved romantically for about four years, including the two years
they lived together in plaintiff's home. Plaintiff owns an estate, which
includes a farm and dog kennel business. He testified that defendant "came to
[him] when she . . . [was] going through a divorce, she had no money [and] she
had no place to go." After she "begged [him] to take her in," plaintiff allowed
defendant to rent a barn. She was a tenant there for two years, paying her rent
timely.
1
We use initials to protect the identity of victims of domestic violence and to
preserve the confidentiality of these proceedings. R. 1:38-3(d)(9) to -(10).
A-4648-18T3
2
Defendant then moved into plaintiff's house with her two children in
2017. Plaintiff testified he "tried to be a father to these children," and he
"lend[ed] [defendant] money all the time" to support her and her children.
In March 2019, they separated when plaintiff left his residence.
Recognizing that defendant's children "ha[d] to finish the school year,"
plaintiff let defendant and her children stay in his home while he lived "about a
mile up the street" with his secretary and her boyfriend. Plaintiff testified that
he was "not living in [his] house, cause [he was] afraid for [his] life with
[defendant]."
On May 8, 2019, the parties argued over defendant parking a horse
trailer in the driveway of plaintiff's home. Plaintiff took issue with defendant
"bringing the trailer to the residential area" and worried that his grass would be
ruined. When plaintiff saw defendant trying to park the trailer, he stopped on
the driveway apron to block defendant. Defendant got out of her vehicle to
ask plaintiff to move, but when he refused, she allegedly "started hollering and
screaming" and called him a "f'in piece of shit." Defendant's daughter also got
out of the vehicle and told plaintiff to leave her mom alone. Defendant told
plaintiff she was calling the police, so he moved out of the way to let her park.
A-4648-18T3
3
On May 10, 2019, plaintiff obtained a temporary restraining order (TRO)
against defendant alleging harassment and cyber harassment. In the TRO,
plaintiff stated that in addition to the trailer incident, defendant filed a false
animal abuse complaint against him with the local health department and
posted false comments on Facebook about his business, alleging that he
medicated the dogs and did not walk or feed them enough. Under the prior
history of domestic violence section on the TRO, plaintiff reported that in
March 2019, defendant touched his buttocks approximately five times without
his consent.
The FRO trial was scheduled for May 20, 2019, but on that date the
court issued a continuance order, stating that "pla[intiff's] failure to appear at
the next [trial] may result in dismissal." On May 29, 2019, plaintiff appeared
pro se while defendant was represented by counsel at trial.
Both parties testified. While defendant denied calling plaintiff a "f-in
piece of shit" or touching him without his consent, she admitted to posting
negative comments about plaintiff's dog kennel business. She explained that
she saw about "[sixty] comments" on Facebook about defendant's business, so
she "added a comment to it as well" because she "wanted people to be aware of
what [she] knew" as "a firsthand witness to everything."
A-4648-18T3
4
Plaintiff and defendant both introduced as exhibits images of these
comments, but the court did not admit them into evidence. Although plaintiff
brought his kennel manager and defendant brought her daughter to testify, the
court did not hear their testimony, concluding "it [was] not going to help the
[c]ourt make a decision."
The court issued an oral decision granting plaintiff a FRO. It
emphasized that because the parties dated and cohabitated, the PDVA was
applicable. While recognizing that harassment and cyber harassment do not
cover injury to an individual's business reputation, the court nevertheless
found that plaintiff established those predicate acts of violence because
defendant's motivation in harming plaintiff's business, "had to be for the
purpose of emotional distress" and defendant used offensive language against
him. The court determined that although plaintiff initiated this domestic
violence matter as a means to evict defendant from his home after the
dismissal of his landlord/tenant action, defendant's actions and testimony were
"concerning," particularly her apparent admission that because she and
plaintiff did not have a written agreement, she was not going to leave his home
without a satisfactory arrangement.
A-4648-18T3
5
The court noted that defendant had previously filed a domestic violence
complaint against plaintiff, but the application was denied because defendant
appeared to "us[e] [her] domestic violence complaint as a sword, and not as a
shield." Finding "serious concerns" as to defendant's intentions, motivation
and credibility in contrast to plaintiff who was "very credible[]," the court
concluded that a FRO was required to protect plaintiff from further harm or
abuse. The court also ordered defendant to vacate plaintiff's home by June 30,
2019.
"We have a strictly limited standard of review from the fact-findings of
the Family Part judge." R.L.U. v. J.P., 457 N.J. Super. 129, 134 (App. Div.
2018) (quoting N.J. Div. of Youth & Family Servs. v. I.H.C., 415 N.J. Super.
551, 577 (App. Div. 2010)). Because a Family Part judge "possess[es] special
expertise in the field of domestic relations," we defer to those factual findings.
Cesare v. Cesare, 154 N.J. 394, 412 (1998). We defer also because Family
Part judges have the "opportunity to make first-hand credibility judgments
about the witnesses who appeared on the stand." R.L.U., 457 N.J. Super. at
134. When reviewing an FRO we "grant substantial deference to the trial
court's findings of fact and the legal conclusions based upon those findings."
D.N. v. K.M., 429 N.J. Super. 592, 596 (App. Div. 2013).
A-4648-18T3
6
We may, however, disturb the factual findings and legal conclusions of
the trial court if we are "convinced that they are so manifestly unsupported by
or inconsistent with the competent, relevant and reasonably credible evidence
as to offend the interests of justice." Cesare, 154 N.J. at 412 (quoting Rova
Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Questions of
law are reviewed de novo. R.L.U., 457 N.J. Super. at 134.
"[D]omestic violence is a term of art which defines a pattern of abusive
and controlling behavior injurious to its victims." Jutchenko v. Jutchenko, 283 N.J. Super. 17, 20 (App. Div. 1995) (quoting Peranio v. Peranio, 280 N.J.
Super. 47, 52 (App. Div. 1995)). The PDVA defines domestic violence as the
occurrence of at least one of nineteen specific offenses. N.J.S.A. 2C:25-19(a).
The court found defendant committed two such offenses.
A. Harassment.
A person commits the offense of harassment
if, with purpose to harass another, he [or she]:
a. Makes, or causes to be made, a communication or
communications anonymously or at extremely
inconvenient hours, or in offensively coarse language,
or any other manner likely to cause annoyance or
alarm;
b. Subjects another to striking, kicking, shoving, or
other offensive touching, or threatens to do so; or
A-4648-18T3
7
c. Engages in any other course of alarming conduct or
of repeatedly committed acts with purpose to alarm or
seriously annoy such other person.
[ N.J.S.A. 2C:33-4(a) to -(c).]
When determining whether a defendant acted with the purpose to harass, a
court must be mindful that "a party may mask an intent to harass with what
could otherwise be an innocent act." J.D. v. M.D.F., 207 N.J. 458, 488 (2011).
"A finding of a purpose to harass may be inferred from the evidence
presented," and a court may use "[c]ommon sense and experience" to
determine a defendant's intent. State v. Hoffman, 149 N.J. 564, 577 (1997).
Courts should consider the totality of the circumstances to determine whether
an underlying act of harassment in the context of domestic violence has
occurred. Id. at 584.
Defendant argues on appeal that even if she did call plaintiff a "f-in
piece of shit," that comment in itself does not constitute domestic violence.
Having found plaintiff more credible than defendant, the court relied upon
plaintiff's testimony to determine "it appears to be language that [defendant]
uses, and it appears to be abusive and harassing." The court emphasized that
defendant's acknowledgement that she posted negative comments about
plaintiff's business on Facebook made "plain that her intention here [was] to
A-4648-18T3
8
harass and abuse [plaintiff]. [The posts] appear[ed] not to be intended to offer
friendly warnings to people. In fact, she[] . . . complain[ed] about the
business that she testifie[d] she managed." The court found that the offensive
statement coupled with the Facebook posts, under all of the circumstances of
the parties' estrangement satisfied the elements of harassment.
The trial court found that defendant selecting this time to raise concerns
online about plaintiff's dog kennel business after being aware of the alleged
conditions for about six years, demonstrates that she acted with a purpose to
harass. The trial court found "it[] [was] more likely than not that [defendant]
engaged in behavior repeatedly by posting, and in the driveway by using rude
and offensive language."
The court acted within its discretion when determining that given "the
pride that [plaintiff] has . . . in the services that he offers [and] the pride that
he has in his reputation," that he explained took him ten years to build,
defendants' negative Facebook posts about plaintiff's business were alarming
and annoying to him, especially because plaintiff asserted that defendant's
comments were "entirely untrue." Thus, plaintiff proved harassment under
N.J.S.A. 2C:33-4 subsections (a) and (c).
A-4648-18T3
9
B. Cyber Harassment.
Cyber harassment occurs when a person, acting with a purpose to harass,
"communicat[es] in an online capacity . . . and . . . (2) knowingly sends, posts,
comments, requests, suggests, or proposes any lewd, indecent, or obscene
material to or about a person with the intent to emotionally harm a reasonable
person or place a reasonable person in fear." N.J.S.A. 2C:33-4.1(a)(2).
The court emphasized that although "there's nothing [in the statute]
about using the internet to impair someone's business reputation, only to harm
someone emotionally," it "suppose[d]" the statute could be "strain[ed] to make
the argument that [the Facebook] posts were designed to cause harm to
[plaintiff's] property, and therefore, cause him emotional harm." Because
"certainly harming a business had to be done for the purpose of emotional
distress," the court found plaintiff proved by the preponderance of the
evidence that defendant cyber harassed him.
The court, however, failed to account for the "lewd, indecent, or obscene
material" element of the statute. See id. Without a showing that defendant's
Facebook posts satisfied one of those characteristics, causing emotional harm
to plaintiff was insufficient to satisfy a finding of cyber harassment. See State
v. Carroll, 456 N.J. Super. 520, 534-35 (App. Div. 2018) (holding "the trial
A-4648-18T3
10
court erred in finding probable cause for the cyber-harassment charge"
because, despite "[t]he Facebook posts [being] indisputably coarse and
insulting," they did not constitute "lewd, indecent, or obscene material").
Insufficient evidence was presented to support the predicate offense of cyber
harassment. Only one predicate offense, however, is required to enter an FRO
and plaintiff presented sufficient credible evidence for a finding of harassment,
if not cyber harassment.
C. Need for an FRO.
When deciding whether to grant a FRO, the trial court has a "two -fold"
task. Silver, 387 N.J. Super. at 125. A court must first determine whether the
plaintiff can demonstrate by a preponderance of the evidence that the
defendant has committed a predicate act of violence under N.J.S.A. 2C:25-
19(a). Ibid. If a predicate act is established, the court must then determine
"whether a restraining order is necessary, upon an evaluation of the factors set
forth in N.J.S.A. 2C: 25-29(a)(1) to -29(a)(6), to protect the victim from an
immediate danger or to prevent further abuse." Id. at 127.
Under the second prong of Silver, a court "shall consider but not be
limited to" six factors, of which three are relevant here:
A-4648-18T3
11
(1) The previous history of domestic violence between
the plaintiff and defendant, including threats,
harassment and physical abuse;
(2) The existence of immediate danger to person or
property;
(3) The financial circumstances of the plaintiff and
defendant.
[ N.J.S.A. 2C:25-29(a)(1) to -(3).]
When addressing this prong in its oral decision, the court noted it was
"frankly struggling" to determine whether plaintiff needed a FRO. The court
explained that defendant "appear[ed] to be saying . . . [he was] using this
[domestic violence matter] as a way to evict [defendant] from [his] home," but
"[o]n the other hand, [the court found] a clear pattern of conduct by [plaintiff]
that [was] designed to cause injury, harm, emotional and otherwise to
[plaintiff]."
The court interpreted plaintiff's testimony that she would "need help to
move out" by July 1 because she "can't do it alone" to mean that plaintiff had
"no intention of leaving [plaintiff's] home" and was "going to continue to stay .
. . [and] take advantage of what [plaintiff was] permitting [her] to take
advantage of . . . by staying." This testimony "sort of capped it for [the
court]," and was the final reason why the FRO was granted.
A-4648-18T3
12
Although an FRO may be granted "in the absence of . . . a pattern [or
history of abuse] where there is 'one sufficiently egregious action,'" Silver, 387 N.J. Super. at 128 (quoting Cesare, 154 N.J. at 402), here the offense of
harassment was not sufficiently egregious. The court failed to consider the
relevant N.J.S.A. 25-29(a) factors in its decision and thus, without further
findings, its determination to issue an FRO was a misguided exercise of
discretion.
We therefore remand for the court to hold a hearing, with the parties'
participation, to determine whether an FRO is necessary after considering the
appropriate statutory and other factors. The court may choose to accept
additional testimony. We note that plaintiff did not participate in this appeal.
Having removed defendant from his premises through the domestic violence
proceedings a year ago, plaintiff may no longer believe he is in need of an
FRO.
Reversed and remanded. We do not retain jurisdiction.
A-4648-18T3
13
Wednesday, June 24, 2020
No egregious action to warrant restraining order A.B., v. D.M.O.,
Tuesday, May 26, 2020
Grandparent visitation discussed
Grandparent visitation discussed
K.D., APPROVED FOR PUBLICATION Plaintiff-Appellant, March 5, 2020 v. APPELLATE DIVISION A.S., Defendant-Respondent. __________________________Argued January 23, 2020 รข€“ Decided March 5, 2020 Before Judges Fuentes, Mayer and Enright. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FD-15-0550-19. nOT FOR PUBLICATION WITHOUT THEAPPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3543-18T4The opinion of the court was delivered by ENRIGHT, J.S.C. (temporarily assigned). In this case, we are asked to determine whether a child's biological mother, who entered an identified surrender of her parental rights to her biological mother, the child's maternal grandmother, has standing as the child's legal sibling, per N.J.S.A. 9:2-7.1, to seek visitation rights against a non- relative adoptive mother. Stated differently, do biological parents who enter an identified surrender of their children to their biological parents become their children's legal siblings? We are satisfied the answer is no. As our Supreme Court made clear in Moriarty v. Bradt, 177 N.J. 84, 114-15 (2003) and reaffirmed in Major v. Maguire, 224 N.J. 1, 6 (2016), N.J.S.A. 9:2-7.1 is subject to strict scrutiny because this statute intrudes on a parent's fundamental right to raise a child as that parent sees fit. Permitting biological parents, who knowingly and voluntarily enter identified surrenders of their parental rights, to acquire the legal rights of siblings pursuant to N.J.S.A. 9:2-7.1 would ignore the Supreme Court's admonition in Moriarty and Major, and cause needless disruption and apprehension to countless families who have opened their homes and their hearts to children in need of adoption. A-3543-18T4 2 I We summarize the salient procedural history and facts of this highly idiosyncratic and litigious case in order to give context to our legal analysis. Plaintiff K.D. appeals from the March 7, 2019 denial of her request to continue visitation with her biological son, Sam, against the wishes of his non - relative adoptive mother, defendant A.S.1 K.D. also appeals from the February 8, 2019 order granting amicus status to the Division of Child Protection and Permanency (Division). We affirm. Sam was born in 2006. He was diagnosed with Autism Spectrum Disorder with combined repetitive and expressive language disorder, developmental fine motor coordination disorder and attention deficit hyperactivity disorder. The Division removed Sam from his mother's care at age three, after he was found crying in the middle of an intersection, while K.D. was intoxicated. K.D. and Sam's biological father 2 entered into identified surrenders to allow Sam to be placed with his maternal grandmother, A.D. Once K.D.'s parental rights were terminated, along with those of Sam's biological father, 1 We use fictitious names for the child and initials for the adults to protect the privacy of the parties and the minor involved in this matter. R. 1:38-3(d)(12). 2 Sam's biological father is not involved in the instant appeal. A-3543-18T4 3 A.D. adopted Sam in March 2012. Unfortunately, A.D. passed away six weeks after adopting Sam. Carolyn, Sam's biological sister, agreed to care for him. However, this arrangement proved to be short lived. A few months after A.D.'s death, Carolyn advised the Division she was unable to care for her special needs brother on a permanent basis. She agreed to temporarily care for him until the Division found a suitable permanent placement. In May 2013, Sam was placed in A.S.'s care, where he remains. K.D. engaged in treatment for her alcoholism after her parental rights were terminated. In June 2014, K.D. filed a motion pursuant to Rule 4:50-1 to set aside her identified surrender in her guardianship action in Hudson County and to vacate the judgment of adoption granted to A.D. in Middlesex County. On January 9, 2015, the motion judge in Hudson County denied K.D.'s application to set aside her identified surrender and directed her to prosecute her application to vacate A.D.'s adoption in Middlesex County. K.D. appealed the order issued by the Hudson County judge. Sam remained in A.S.'s care during the pendency of K.D.'s appeal. Consistent with the Family Part decision in Hudson County, K.D. filed an application in Middlesex County to vacate Sam's adoption by A.D. The Family Part in Middlesex County heard and denied K.D.'s application to vacate the adoption as well as her motion for reconsideration. The Middlesex County A-3543-18T4 4 judge memorialized these decisions in orders dated February 27, 2015 and April 13, 2015, respectively. Before the Family Part judge in Middlesex County denied K.D.'s motion for reconsideration, K.D. moved before this court to supplement the record in her appeal of the order entered by Hudson County Family Part judge. In an order dated June 3, 2015, this court denied K.D.'s motion without prejudice and "temporarily remand[ed] the matter to the trial court for the limited purpose of allowing [K.D.] to file a Rule 4:50 motion in the trial court based upon [an] alternative theory of changed circumstances." This court also retained jurisdiction and directed the parties and the Hudson County Family Part judge to complete all the necessary proceedings within ninety days. The motion judge adhered to this court's directions and timeframe and after employing the two-prong test from In re Guardianship of J.N.H., 172 N.J. 440, 474-75 (2002), the judge found K.D. had presented sufficient evidence of changed circumstances. However, the motion judge also found K.D. did not prove it was in Sam's best interests to change his placement or to return him to K.D.'s care and custody. K.D. thereafter amended her notice of appeal to include this final decision by the Family Part in Hudson County and the orders issued by the Family Part in Middlesex County denying her application to vacate the adoption. A-3543-18T4 5 On June 1, 2017, this court affirmed the order entered by the Family Part judge in Hudson County that "reject[ed] [K.D.'s] challenges to the orders denying her post-judgment attempts to set aside the voluntary surrender of her parental rights in favor of [A.D.]" N.J. Div. of Child Prot. & Permanency v. K.D., Nos. A-2651-14 and A-5513-14 (App. Div. June 1, 2017) (slip op. at 10). We also "conclude[ed] that the Middlesex [County] judge properly denied the motion to set aside the judgment of adoption." Id. at 12. In reaching this decision, we expressly held K.D. had not demonstrated that her "voluntary surrender was ineffectual to terminate her parental rights or that it is inequitable to further enforce the April 27, 2011 guardianship judgment." Ibid. Finally, although not raised as an issue in the appeal, our colleagues took an extra step to point out the following: This brings us to the October 1, 2012 order, which posthumously terminated [A.D.'s] parental rights. Although [K.D.'s] appeals in the guardianship and adoptions matters do not implicate this order, which was entered in a separate matter not before us for review, we cannot ignore the fact that this order suffers from the same disabilities found in defendant's motion to vacate the judgment of adoption. There is no evidence that notice was given to [A.D.'s] personal representative or to [K.D.], who, upon [A.D.'s] adoption of the child, had become in the eyes of the law the child's sibling. And the Division's application sought relief the court was not empowered to give: the termination of parental rights of a deceased parent. A-3543-18T4 6 The issue resolved by that court had been rendered purely academic; any debate about [A.D.'s] parental rights ended with her death. [Id. at 12-13 (emphasis added).] A.S. adopted Sam on December 3, 2018. As noted earlier, Sam began residing with his adoptive mother in May 2013, when he was six years old. He is now fourteen. Although the Family Part authorized K.D. to have limited visitation rights before A.S. adopted Sam, A.S. decided not to continue the visits after the adoption became final. K.D. filed an order to show cause on December 11, 2018, seeking to reinstate her visits over A.S.'s objection. A Family Part judge in Ocean County denied K.D.'s application for emergent relief. Although not a party in the case, the Division opposed K.D.'s application to have visitation rights to Sam and moved to intervene. The court denied the Division's motion to intervene but granted its supplemental application to appear and participate as amicus curiae. On March 7, 2019, the judge heard oral argument on K.D.'s application to reinstate regular visits with Sam and also heard A.S.'s cross-motion to dismiss. Because the parties presented documentary evidence which was outside the four corners of the factual allegations in the pleadings, the judge sua sponte decided to treat A.S.'s dismissal application as a motion for summary judgment under Rule 4:46-2(c). A-3543-18T4 7 The judge analyzed K.D.'s request for visitation under certain legal frameworks, including: her status as the child's biological mother whose parental rights had been terminated under Title 30; a legal sibling, pursuant to N.J.S.A. 9:2-7.1; and a psychological parent. See V.C. v. M.J.B., 163 N.J. 200, 223 (2000). The judge concluded that none of these analytical paradigms created the "exceptional circumstances" necessary for the court's intervention. Moriarty, 177 N.J. at 114. He further found that under any of these paradigms, K.D. failed to establish a prima facie case that visitation with Sam was necessary to avoid harm to the child. Accordingly, the judge determined there was no need for an evidentiary hearing and he denied K.D.'s request to compel visits over A.S.'s objection. K.D. filed this appeal after we denied her application for emergent review. II On appeal, K.D. argues the judge's denial of her visitation motion, without conducting a plenary hearing, constitutes error. Moreover, she contends the judge erred in allowing the Division amicus status. We disagree. We start our analysis by addressing whether K.D. became Sam's sibling "in the eyes of the law" upon A.D.'s adoption of Sam, as mentioned by our colleagues in their June 1, 2017 unpublished opinion. We are satisfied our colleagues' reference to K.D.'s sibling status is not legally binding on us based A-3543-18T4 8 on two separate grounds. First, this legal "characterization" of K.D. was indisputably dictum. Indeed, our colleagues acknowledged in their 2017 opinion that such commentary pertained "[to] a separate matter not before us for review." K.D., at 12. It is well-settled that "[d]ictum is a statement by a judge 'not necessary to the decision then being made[,]' and 'as such it is entitled to due consideration but does not invoke the principle of stare decisis.'" Bandler v. Melillo, 443 N.J. Super. 203, 210 (App. Div. 2015) (quoting Jamouneau v. Div. of Tax Appeals, 2 N.J. 325, 332 (1949)) (alteration in original). Second, as Rule 1:36-3 makes clear, "[n]o unpublished opinion shall constitute precedent or be binding upon any court." There are profound public policy ramifications to characterizing K.D. as the legal sibling of her biological son under these circumstances. We begin our discussion of this extraordinarily delicate area of law, mindful of our Supreme Court's admonition in In re D.C.: Our law recognizes the family as a bastion of autonomous privacy in which parents, presumed to act in the best interests of their children, are afforded self- determination over how those children are raised. All of the attributes of a biological family are applicable in the case of adoption; adoptive parents are free, within the same limits as biological parents, to raise their children as they see fit, including choices regarding religion, education, and association. However, the right to parental autonomy is not absolute, and a biological family may be ordered to permit third-party visitation, over its objections, where A-3543-18T4 9 it is necessary under the exercise of our parents patriae jurisdiction to avoid harm to the child. That principle governs adoptive families as well. [ 203 N.J. 545, 551-52 (2010).] As a "parent is entitled to a presumption that he or she acts in the best interests of the child, . . . the parent's determination whether to permit visitation is entitled to 'special weight.'" Major, 224 N.J. at 15 (citing Troxel v. Granville, 530 U.S. 57, 67-69 (2000)). Thus, "the need to avoid harm to the child is 'the only [S]tate interest warranting the invocation of the State's parens patriae jurisdiction to overcome the presumption in favor of a parent's decision and to force [third-party] visitation over the wishes of a fit parent[.]'" Id. at 16 (quoting Moriarty, 177 N.J. at 115) (second alteration in original). "[A]bsent a showing that the child would suffer harm if deprived of contact with [the third party], the State [can]not constitutionally infringe on parental autonomy." Ibid. (citing Moriarty, 177 N.J. at 115). When the third party does demonstrate such harm, the presumption in favor of parental decision-making is overcome, and the parent is then obliged to offer a visitation schedule that is in the child's best interest. Id. at 17. These principles are applicable to the instant matter, as "[a]ll of the attributes of a biological family are applicable in the case of adoption." D.C., 203 N.J. at 551. A-3543-18T4 10 On appeal, K.D. renews her argument that Sam will suffer harm if he is not permitted visits with her and she relies on the case of Kattermann v. Di Piazza, 151 N.J. Super. 209 (App. Div. 1977) to support her request for post - adoption visits. Her argument is unavailing. As the Family Part judge aptly recognized, the Kattermann court applied a now outdated best interests standard to factual circumstances distinguishable from the case at hand. Further, as the Moriarty Court made clear, "interference with parental autonomy will be tolerated only to avoid harm to the health or welfare of a child." Moriarty, 177 N.J. at 115. Moreover, almost a decade ago, the D.C. Court confirmed the best interests standard should not be utilized in third - party, post-adoption visitation disputes, noting: the application of the best interests standard to a third party's petition for visitation is an affront to the family's right to privacy and autonomy and . . . interference with a biological or adoptive family's decision-making can only be justified on the basis of the exercise of our parens patriae jurisdiction to avoid harm to the child. [D.C., 203 N.J. at 573 (emphasis added).] Therefore, a third party seeking to compel contact with a child over an adoptive parent's wishes must meet the threshold burden of proving by a preponderance of evidence that the child will suffer harm without the contact. In fact, the moving party must demonstrate "a particular identifiable harm, A-3543-18T4 11 specific to the child." Mizrahi v. Cannon, 375 N.J. Super. 221, 234 (App. Div. 2005). As the D.C. Court confirmed, "an adoptive family is not entitled to greater protections than a biological family. Thus, to the extent that visitation by a third party may be compelled over the objections of a biological family, the same rule applies to an adoptive family." 203 N.J. at 570. Clearly, then, it is settled law that siblings by adoption have the same legal rights as biological siblings. Guided by these principles, we review the Grandparent and Sibling Visitation Statute, which provides in relevant part: A grandparent or any sibling of a child residing in this State may make application before the Superior Court, in accordance with the Rules of Court, for an order for visitation. It shall be the burden of the applicant to prove by a preponderance of the evidence that the granting of visitation is in the best interests of the child. [N.J.S.A. 9:2-7.1(a).] Accordingly, the question here is whether K.D. became Sam's legal sibling when she voluntarily agreed to surrender her parental rights to Sam's maternal grandmother. If so, she can pursue her rights as a sibling under N.J.S.A. 9:2-7.1(a). We hold that to recognize K.D. as the legal sibling of her biological son under these circumstances would violate the public policy underpinning the A-3543-18T4 12 Division's role under Title 30. We are also satisfied that the Legislature did not intend to sanction such an outcome when it adopted N.J.S.A. 9:2-7.1. N.J.S.A. 30:4C-15.1(a) allows a court to permanently sever the legal relationship between a parent and child only after the court comes to the consequential decision that a child's welfare has been or will continue to be endangered by the parental relationship and "proof of parental unfitness is clear." N.J. Div. of Youth & Fam. Servs. v. F.M., 211 N.J. 420, 447 (2012); see In re Adoption of Child by J.E.V., 442 N.J. Super. 472, 481 (App. Div. 2015) (confirming that "[a]fter the elimination of the death penalty, we can think of no legal consequence of greater magnitude than the termination of parental rights."). Here, K.D.'s decision to enter a voluntary surrender of her parental rights to her biological son in favor of the child's maternal grandmother permanently and irrevocably severed all of her legally cognizable familial rights to her son. Thus, K.D. does not fall within the class of litigants empowered to bring a summary action under N.J.S.A. 9:2-7.1. Stated differently, K.D. does not have standing to bring a visitation action in the Family Part under N.J.S.A. 9:2-7.1 because she is not her biological son's legal sibling. As we have acknowledged, "[a]n adoptive family must be given the right to grow and develop as an autonomous family, and must not be tied to the very relationship A-3543-18T4 13 that put the child in the position of being adopted." In re Adoption of a Child by W.P., 163 N.J. 158, 175 (2000). A contrary ruling would consign adoptive parents to an inferior status. Ibid.; see Mimkon v. Ford, 66 N.J. 426, 441 (1975) (Clifford, J., dissenting). Next, we acknowledge that an adoptive parent may voluntarily permit a child to maintain contact with a biological parent. See In re Guardianship of D.M.H., 161 N.J. 365 (1999). However, as the motion judge recognized, granting K.D. legal standing to bring a visitation action as a biological parent would create the functional equivalent of an open adoption. Our Supreme Court has made clear that the subject of open adoptions "represents a significant policy issue which should be addressed in separate legislation." In re Adoption of a Child by D.M.H., 135 N.J. 473, 494 (1994) (quoting Senate Judiciary Committee, Statement to Senate, Bill No. 685 (1993)). Accordingly, unless otherwise decided by the Legislature, the judiciary has no authority to compel A.S. to permit contact between K.D. and Sam based on K.D.'s biological connection to Sam or her identified surrender to Sam's maternal grandparent. For the sake of completeness, we also find no basis to disturb either the motion judge's determination that K.D. does not meet the criteria to be considered Sam's psychological parent or his decision that no evidentiary hearing was required. A-3543-18T4 14 Finally, K.D. contends the Family Part judge erred in granting the Division amicus status and improperly relied on the Division's factual assertions. Again, we disagree. Rule 1:13-9 provides that a court "shall grant the motion [for leave to appear as amicus curiae] if it is satisfied under all the circumstances that the motion is timely, the applicant's participation will assist in the resolution of an issue of public importance, and no party to the litigation will be unduly prejudiced thereby." The order must then define the permitted extent of participation of amicus. Ibid. The Division's "statutory mission is to protect the health and welfare of the children of this state." N.J. Div. of Youth & Fam. Servs. v. E.B., 137 N.J. 180, 184 (1994) (citing N.J.S.A. 30:4C-4). "Traditionally, the role of amicus curiae was to be advisory rather than adverse." In re State ex rel. Essex Cty. Prosecutor's Off., 427 N.J. Super. 1, 5 (Law Div. 2012) (citing Casey v. Male, 63 N.J. Super. 255, 258 (Cty. Ct. 1960)). However, the Third Circuit held that amicus need not be impartial, and that even when parties are very well represented, amicus "may provide important assistance to the court." Neonatology Assocs., P.A. v. Comm'r, 293 F.3d 128, 132 (3d Cir. 2002). Further, "Rule 1:13-9 has been interpreted as establishing 'a liberal standard for permitting amicus appearances.'" In re State ex rel. Essex Cty. Prosecutor's A-3543-18T4 15 Off., 427 N.J. Super. at 5 (quoting Pfizer, Inc. v. Dir., Div. of Tax'n, 23 N.J. Tax 421, 424 (Tax 2007)). Here, the judge determined the Division could participate as amicus but specified its participation was limited to "the issue of post[-]adoption visitation by a third party, inclusive of any collateral issue raised by the parties." We are satisfied he did not abuse his discretion in this regard, particularly given the Division's involvement with Sam from 2009 onward. While the Division's position was adverse to K.D.'s post-adoption application, this lone fact did not preclude the Division's involvement as amicus. Family courts have special expertise in family matters and "appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). "Therefore, an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms Resort, Inc. v. Inv'rs. Ins. Co., 65 N.J. 474, 484 (1974)) (alteration in original). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, LP v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (citations omitted). A-3543-18T4 16 Governed by these standards, we are satisfied the record amply supports the motion judge's factual findings. Considering those findings, as well as the legal principles we have highlighted, we perceive no basis to disturb the judge's decision to deny K.D. post-adoption visits without the necessity of an evidentiary hearing. To the extent we have not addressed K.D.'s remaining arguments, we find them lacking in merit. R. 2:11-3(e)(1)(E). Affirmed.
Friday, April 24, 2020
Former caregiver deemed household member under DV law M.S. v. D.H.
Former caregiver deemed household member under DV law M.S. v. D.H.
Defendant appealed from the final restraining order entered against him and in favor of plaintiff. Plaintiff had hired defendant as a caregiver for plaintiff's autistic 23-year-old son, J.S., who had a history of violent outbursts. As a result, defendant lived with plaintiff and J.S. until plaintiff terminated defendant's employment. Plaintiff then filed a complaint for a restraining order against defendant, alleging defendant committed acts of harassment. Specifically, plaintiff alleged that defendant made death threats against plaintiff, demanded long-term employment contracts, and pressured plaintiff into purchasing a property. Plaintiff alleged that defendant was "weaponizing" J.S. against plaintiff by influencing J.S. to be hostile and violent towards plaintiff. Plaintiff stated that he was frightened by defendant, alleging that defendant had described himself as ex-military and had also shown plaintiff his heavily-stocked gun locker. In his defense, defendant claimed that the statements referred to his belief that plaintiff and J.S. would not be able to live together without harming each other and his threats were "benign threats" to sue for compensation for injuries he suffered from J.S.'s attacks. Defendant also presented testimony from neighbors about the positive impact defendant had on J.S. The trial court granted the FRO, noting that the parties had lived together for a year and defendant continued to care for J.S., necessitating future contact between the parties. The trial court found plaintiff's testimony about the predicate acts of harassment credible and rejected defendant's explanation for his statements. On appeal, the court affirmed entry of the FRO. The court first held that defendant, as a former live-in caregiver, qualified as a "household member" under the PDVA. The court further held that the record supported the trial court's conclusion that defendant's statements and threats to plaintiff constituted the predicate act of harassment, and that a FRO was necessary to protect plaintiff given defendant's access to weapons.
source https://www.law.com/njlawjournal/almID/1585202909NJA154818T/
Thursday, April 23, 2020
Domestic Violence Guidelines on Police Response Procedures
Domestic Violence
Guidelines on Police Response Procedures
Introduction.These general guidelines consolidate the police response procedures for domestic violence cases, including abuse and neglect of the elderly and disabled, based on State law, Court Rules, and the Domestic Violence Procedures Manual which was jointly prepared by the New Jersey Supreme Court and the Attorney General through the Division of Criminal Justice.
Original source https://www.state.nj.us/lps/dcj/agguide/dvpolrsp.htm
I. Definitions.
Domestic Violence means the occurrence of one or more of the following criminal offenses upon a person protected under the Prevention of Domestic Violence Act of 1990:
C:25-19. Definitions
As used in this act:
a. “Domestic violence” means the occurrence of one or more of the following acts inflicted upon a person protected under this act by an adult or an emancipated minor:
(1) Homicide N.J.S.2C:11-1 et seq.
(2) Assault N.J.S.2C:12-1
(3) Terroristic threats N.J.S.2C:12-3
(4) Kidnapping N.J.S.2C:13-1
(5) Criminal restraint N.J.S.2C:13-2
(6) False imprisonment N.J.S.2C:13-3
(7) Sexual assault N.J.S.2C:14-2
(8) Criminal sexual contact N.J.S.2C:14-3
(9) Lewdness N.J.S.2C:14-4
(10) Criminal mischief N.J.S.2C:17-3
(11) Burglary N.J.S.2C:18-2
(12) Criminal trespass N.J.S.2C:18-3
(13) Harassment N.J.S.2C:33-4
(14) Stalking P.L.1992, c. 209 (C.2C:12-10)
(15) Criminal coercion N.J.S.2C:13-5
(16) Robbery N.J.S.2C:15-1
(17) Contempt of a domestic violence order pursuant to subsection b. of N.J.S.2C:29-9 that constitutes a crime or disorderly persons offense
(18) Any other crime involving risk of death or serious bodily injury to a person protected under the “Prevention of Domestic Violence Act of 1991,” P.L.1991, c. 261 (C.2C:25-17 et al.)
(19) Cyber-harassment P.L.2013, c. 272 (C.2C:33–4.1)
Victim of Domestic Violence means a person protected by the domestic violence act and includes any person:
who is 18 years of age or older, or
who is an emancipated minor, and who has been subjected to domestic violence by:
spouse
former spouse
any other person who is a present or former household member, OR
who, regardless of age, has been subjected to domestic violence by a person:
with whom the victim has a child in common, or
with whom the victim anticipates having a child in common, if one of the parties is pregnant, or
who, regardless of age, has been subjected to domestic violence by a person with whom the victim has had a dating relationship.
A victim may be below the age of 18.
The domestic violence assailant must be over the age of 18 or emancipated at the time of the offense. See Paragraph C3 below for criteria for determining whether a person is emancipated.
Note:
The Prevention of Domestic Violence Act does not define a victim of domestic violence by age, physical or psychological condition or sex.
AN UNEMANCIPATED MINOR WHO COMMITS AN ACT OF DOMESTIC VIOLENCE MAY NOT BE PROSECUTED AS A DOMESTIC VIOLENCE DEFENDANT BUT CAN BE PROSECUTED UNDER THE JUVENILE DELINQUENCY LAWS. THE ENTRY OF PRE- OR POST-DISPOSITIONAL RESTRAINTS CAN ALSO BE CONSIDERED.
A minor is considered emancipated from his or her parents when the minor:
has been married;
has entered military service;
has a child or is pregnant; or
has been previously declared by a court or an administrative agency to be emancipated.
II. Mandatory Arrest.A police officer must arrest and take into custody a domestic violence suspect and must sign the criminal complaint against that person if
The victim exhibits signs of injury caused by an act of domestic violence. N.J.S.A. 2C:25-21a(1).
The word, "exhibits," is to be liberally construed to mean any indication that a victim has suffered bodily injury, which shall include physical pain or any impairment of physical condition. Probable cause to arrest also may be established when the police officer observes manifestations of an internal injury suffered by the victim.
Where the victim exhibits no visible sign of injury, but states that an injury has occurred, the officer should consider other relevant factors in determining whether there is probable cause to make an arrest.
In determining which party in a domestic violence incident is the victim where both parties exhibit signs of injury, the officer should consider:
the comparative extent of injuries suffered;
the history of domestic violence between the parties, if any, or
other relevant factors.
Police shall follow standard procedures in rendering or summoning emergency treatment of the victim, if required.
There is probable cause to believe that the terms of a no contact court order have been violated. If the victim does not have a copy of the court order, the officer may verify the existence of an order with the appropriate law enforcement agency.
A warrant is in effect.
There is probable cause to believe that a weapon as defined in N.J.S.A. 2C:39-1r has been involved in the commission of an act of domestic violence.
III. Discretionary Arrest.A police officer may arrest a person or may sign a criminal complaint against that person, or may do both, where there is probable cause to believe that an act of domestic violence has been committed but none of the conditions in Section II. above applies.
IV. Seizure of Weapons.
Seizure of a Weapon for Safekeeping.
A police officer who has probable cause to believe that an act of domestic violence has been committed may:
Question all persons present to determine whether there are weapons, as defined in N.J.S.A. 2C:39- 1r, on the premises.
If an officer sees or learns that a weapon is present within the premises of a domestic violence incident and reasonably believes that the weapon would expose the victim to a risk of serious bodily injury, the officer should attempt to gain possession of the weapon.
If the weapon is in plain view, the officer should seize the weapon.
If the weapon is not in plain view but is located within the premises jointly possessed by both the domestic violence assailant and the domestic violence victim, the officer should obtain the consent, preferably in writing, of the domestic violence victim to search for and to seize the weapon.
If the weapon is not located within the premises jointly possessed by the domestic violence victim and assailant but is located upon other premises, the officer should attempt to obtain possession of the weapon from the possessor of the weapon, either the domestic violence assailant or a third party, by a voluntary surrender of the weapon.
If the domestic violence assailant or the possessor of the weapon refuses to surrender the weapon or to allow the officer to enter the premises to search for the named weapon, the officer should obtain a Domestic Violence Warrant for the Search and Seizure of Weapons. [See Appendix 13]
Seizure of a Weapon Pursuant to Court Order.
If a domestic violence victim obtains a court order directing that the domestic violence assailant surrender a named weapon, the officer should demand that the person surrender the named weapon.
If the domestic violence assailant or the possessor of the weapon refuses to surrender the weapon, the officer should
inform the person that the court order authorizes a search and seizure of the premises for the named weapon, and
arrest the person, if the person refuses to surrender the named weapon, for failing to comply with the court order, N.J.S.A. 2C:29- 9, and
conduct a search of the named premises for the named weapon.
The officer must append an inventory of seized weapons to the domestic violence offense report.
Weapons seized by a police officer must be promptly delivered to the county prosecutor along with a copy of the domestic violence offense report and, where applicable, the domestic violence complaint and temporary restraining order.
V. Domestic Violence Complaint.
Notice.When a police officer responds to a call of a domestic violence incident, the officer must give and explain to the victim the domestic violence notice of rights which advises the victim of available court action. N.J.S.A. 2C:25-23. The victim may file
A domestic violence complaint alleging the defendant committed an act of domestic violence and asking for court assistance to prevent its recurrence by asking for a temporary restraining court order (TRO) or other relief;
A criminal complaint alleging the defendant committed a criminal act. See Section II. Mandatory Arrest above when a police officer must sign the criminal complaint;
Both of the above.
Jurisdiction for filing domestic violence complaint by the victim.
During regular court hours,
The victim should be transported or directed to the Family Part of the Superior Court.
Where transportation of the victim to the Superior Court is not feasible, the officer should telephone the designated court by telephone for an emergent temporary restraining order in accordance with established procedure.
On weekends, holidays and other times when the court is closed.
The victim may file the domestic violence complaint before a municipal court judge specifically assigned to accept these complaints.
The victim may file a domestic violence complaint:
where the alleged act of domestic violence occurred.
where the defendant resides, or
where the victim resides or is sheltered.
Jurisdiction for filing criminal complaint by the victim in connection with filing domestic violence complaint.
A criminal complaint may be filed against the defendant in locations indicated in Paragraph B3 above.
A criminal complaint filed pursuant to Paragraph C.1 above shall be investigated and prosecuted in the jurisdiction where the offense is alleged to have occurred.
A domestic violence complaint may be filed pursuant to the provisions of Paragraph B above.
Jurisdiction for filing a criminal complaint but no accompanying domestic violence complaint.
During normal court hours, the victim may file a criminal complaint with the municipal court or police department where the alleged act occurred in accordance with departmental procedure.
On weekends, holidays and other times when the court is closed, the victim may file a criminal complaint with the law enforcement agency where the alleged act occurred.
If the police officer believes that a no-contact order should be issued, the officer should inform the court of the circumstances justifying such request when the criminal complaint is being processed and bail is about to be set. The officer should include in the domestic violence offense report the reasons for the request and the court's disposition of the request.
Victim/Witness Notification Form [See Appendix 1]
When either a criminal or domestic violence complaint is signed, a Victim/Witness Notification Form is to be completed by the person assisting the victim, either the police officer or a member of the court staff.
The victim should be informed that for the victim's protection, the prosecutor or the court must have the ability to contact the victim on short notice to inform the victim about the defendant's
impending release from custody, or
application to reduce bail.
The victim should be provided with the telephone number of the
Victim Witness Unit of the Prosecutor's Office when a criminal complaint or domestic violence contempt complaint is signed, or
Family Division Case Management Office/Domestic Violence Unit when a domestic violence complaint is signed.
The victim should be instructed to contact the appropriate office to provide new telephone numbers if the victim changes telephone numbers from the numbers listed on the Victim/Witness Notification Form.
Procedure for filing Reports.
A copy of the domestic violence offense report must be attached to all criminal complaints and to the civil domestic violence complaint when these documents are forwarded to the appropriate court.
VI. Emergent Temporary Restraining Court Orders.
Where a police officer determines that an immediate court order is necessary to protect the victim from further acts of domestic violence or the victim requests an immediate court order, the officer shall contact the designated judge by telephone, radio or other means of electronic communication. The officer should:
Assist the victim in preparing a statement to be made to the judge.
Explain that the judge will place the person under oath and will ask questions about the incident.
If the judge issues a temporary restraining order, the police officer will be instructed to enter the judge's authorization on a prescribed form.
The officer also will be instructed to print the judge's name on the temporary restraining order.
The officer will then be instructed to serve the restraining order upon the alleged offender.
VII. Service of Temporary Restraining Order (no-contact order)
When the victim obtains a no-contact court order but the defendant had not been arrested by police and is present at the scene, the officer should:
Escort the victim to his or her home.
Read the conditions of the court order to the defendant if the defendant is present.
Order the defendant to vacate the premises.
Give the defendant a reasonable period of time to gather personal belongings, unless the court order includes specific limits on time or duration.
Arrest the defendant if required by the court order or if defendant refuses to comply with the order.
Where a court order had been issued but was not served upon the defendant because the defendant could not then be located but the defendant is now at the scene, police should follow Paragraphs A.2-5 above.
When a temporary or final restraining order is issued that requires service outside the issuing county,
The restraining order, along with the complaint and any other relevant documents (e.g. search warrant, etc.) must immediately be brought or faxed to the sheriff's department in the issuing county.
The sheriff's department in the issuing county must similarly bring or fax the order and related documents to the sheriff's department in the county of the defendant's residence or business.
The sheriff's department in the receiving county, pursuant to local policy, will either
execute service on the defendant or
will immediately bring or fax the order and related documents to the police department in the municipality in which the defendant resides or works so that it can execute service accordingly.
The return of service should then be faxed back to the sheriff's department in the issuing county, which in turn must immediately deliver or fax the return of service to the Family Division in the issuing county.
When the service of a restraining order results in the seizure of weapons,
The weapons inventory should be attached to the return of service that is brought or faxed back to the issuing county.
The weapons themselves, along with any licenses, I.D. cards, or other paperwork or documentation shall be secured by the prosecutor in the seizing county for storage. At such time that the seized property is needed by the prosecutor or Family Division in the issuing county, the prosecutor in the seizing county shall forward same.
Once service on the defendant is attempted, successfully or unsuccessfully, the return of service portion of the TRO (located on the back of the last page of the multipart TRO form) must be filled out by the police or sheriff's department and immediately returned to the Family Division prior to the scheduled final hearing date.
VIII. Court Order Violations.
Where a police officer determines that a party has violated an existing restraining order either by committing a new act of domestic violence or by violating the terms of a court order, the officer must
Arrest and transport the defendant to the police station.
Sign a criminal contempt charge concerning the incident on a complaint-warrant (CDR-2).
The officer should sign a criminal complaint for all related criminal offenses. (The criminal charges should be listed on the same criminal complaint form that contain the contempt charge.)
Telephone, communicate in person or by facsimile with the appropriate judge or bail unit and request bail be set on the contempt charge.
During regular court hours, bail should be set by the emergent duty Superior Court judge that day.
On weekends, holidays and other times when the court is closed, bail should be set by the designated emergent duty Superior Court judge except in those counties where a municipal court judge has been authorized to set bail for non-indictable contempt charges by the assignment judge.
When bail is set by a judge when the courts are closed, the officer shall arrange to have the clerk of the Family Part notified on the next working day of the new complaint, the amount of bail, the defendant's whereabouts and all other necessary details.
If a municipal court judge set the bail, the arresting officer shall notify the clerk of that municipal court of this information.
If the defendant is unable to post bail, take appropriate steps to have the defendant incarcerated at police headquarters or the county jail.
Where the officer deems there is no probable cause to arrest or sign a criminal complaint against the defendant for a violation of no contact court order, the officer must advise the victim of the procedure for completing and signing a
criminal complaint alleging a violation of the court order.
During regular court hours, the officer should advise the victim that the complaint must be filed with the Family Part of the Chancery Division of Superior Court.
On weekends, holidays and other hours when the court is closed.
the officer should transport or arrange for transportation to have the victim taken to headquarters to sign the complaint;
the alleged offender shall be charged with contempt of a domestic violence court order, N.J.S.A. 2C:29-9. The victim must sign the complaint. A complaint-warrant (CDR-2) must be prepared;
the officer in charge shall follow standard police procedure in arranging to have a court set bail.
civil complaint against the defendant for violations of a court order pertaining to support or monetary compensation, custody, visitation or counseling. The victim should be referred to the Family Division Case Management Office to pursue this civil enforcement of the court order.
IX. Criminal Offenses Against the Elderly and Disabled.
Where an elderly or disabled person is subjected to a criminal offense listed as an act of domestic violence, police shall follow the appropriate procedure listed above.
Where the actions or omissions against an elderly or disabled person do not meet the domestic violence conditions, police may file appropriate criminal charges against the offender.
A person may be charged with Endangering the Welfare of the Elderly or Disabled, N.J.S.A. 2C:24-8, if the person has:
a legal duty to care for or has assumed continuing responsibility for the care of a person who is:
60 years of age or older, or
emotionally, psychologically or physically disabled, and
the person unreasonably neglects or fails to permit to be done
any act necessary for the physical or mental health of the elderly or disabled person.
Original source https://www.state.nj.us/lps/dcj/agguide/dvpolrsp.htm
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