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Diamond & Diamond, P.A.
NJ FAMILY LAW ATTORNEYS

HIGH-QUALITY REPRESENTATION
IN DIVORCE AND FAMILY LAW
MATTERS

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How to file a domestic violence complaint, what should be included, and why

| Jan 21, 2021 | Domestic Violence, Family Law, New Jersey Family Law |

Domestic violence is a term used to describe a pattern of abusive behavior in a relationship used by one partner to gain or maintain power and control over another partner.

In New Jersey, victims of domestic violence are entitled to specific protections, starting with the filing of a domestic violence temporary restraining order through the local police department or through the domestic violence intake office located inside of the superior courthouse in the county where you reside.

When considering whether to file a domestic violence complaint, below are the 18 different grounds available to you for filing a complaint and an overview of what each ground is designed to address:

  1. Harassment – intentional behavior designed to intimidate, scare, annoy, or alarm you. For example, excessive and unwanted text messages.
  2. Cyber harassment – behavior over the internet that is excessive and unwanted with the intent to scare, annoy, or alarm you.
  3. Criminal trespass – when someone is on your property without permission. For example, your ex comes into your home without permission and then refuses to leave, despite repeatedly asking him to do so.
  4. Stalking – when someone on more than one occasion stares at you for an extended period of time or follows you. For example, if your former partner parks her car outside of your home so that he / she can watch you constantly or follow you when going out with friends.
  5. Terroristic threats – when your partner directly threatens you for the purpose of scaring or attempting to intimidate you.
  6. Assault – when someone injures or threatens to injure you – an assault can be a single act or multiple acts.
  7. Criminal restraint – when someone keeps you in a form of restraint against your will. For example, if your partner tricks you into his car and then will not let you out of his car.
  8. False imprisonment – when someone holds you in an area that you do not want to be in.
  9. Criminal coercion – when someone tries to make you do something by threatening you.
  10. Sexual assault – the unwanted penetration by force or trickery.
  11. Criminal sexual contact – when someone forces, bullies, or threatens you into having sexual contact such as unwanted touching.
  12. Kidnapping – when someone takes you by force or threat.
  13. Lewdness – when a person exposes their private parts to someone who does not want to see them.
  14. Robbery – when someone steals, hurts or threatens to hurt you at the same time.
  15. Criminal mischief – when someone breaks your belongings on purpose.
  16. Burglary– when someone breaks into your home or hides out in your home with the intent to commit a crime in your home.
  17. Homicide – murder.
  18. Contempt of a domestic violence restraining order – if a restraining order has been entered regardless of whether it was a temporary or permanent order, and the other person violates it by contacting you.

Of the 18 grounds available to you for filing a domestic violence complaint, the most common ground that domestic violence complaints are based on is harassment. Probably 90% of all domestic violence complaints are based on harassment.

By definition, the term “Harassment” means intentional behavior designed to scare, annoy, or alarm you. For a judge to find that the behavior complained about rises to the level that warrants a final order of protection, the court’s focus is on the outrageousness of the behavior and whether the behavior complained of was intentional. For example, if your former partner has called or texted you 150 times in  3 days and you have repeatedly asked her to stop communicating with you (and you are not simultaneously texting back with her in a similar fashion) but she continues to call or text you, with the intent to scare, alarm or annoy you, this behavior may constitutes harassment under the domestic violence laws and can be a proper basis for the a judge to issue  a domestic violence final ( permanent) restraining order.

Harassment can be a single occurrence ( i.e., screaming at you non-stop for a 2 hour period of time, calling you terrible names while you repeatedly ask him/her to stop and to leave you alone ) or it can be a series of actions over an extended period of time. The critical element in a harassment complaint is that the other party’s actions are intentional and that you do not want it to continue. Once he / she has been put on notice of your objection to the behavior, if he / she continues, it may then rise to the level of actionable, and you may have recourse under the domestic violence laws.

As stated above, domestic violence can be an isolated incident or a series of bad occurrences, but not all bad actions automatically justify the grant of a domestic violence final order of protection. It’s important to understand the thought process of a judge listening to the testimony and what she is trying to determine.

  1. Was this an isolated incident that the court has confidence will not occur again. This analysis is commonly referred to as the 2nd prong of the Silver test, meaning that even if the court believes that an act of domestic violence occurred, is the victim still in fear, has the perpetrator learned his lesson and does the court have confidence that there will never be another incident. Please note that this does not apply to domestic violence claims based on actual physical violence. If he has physically struck you with the intent to cause injury or harm, there will not be any discussion or debate by the court as to whether it will happen again. It is domestic violence and will result in a restraining order being issued.
  2. What was the nature of the incident? For example, were you and he verbally arguing over the payment of specific bills during a divorce, or was your partner’s behavior intentional and designed to intimidate, alarm or cause you fear?

Presuming that you have been placed in a setting where you feel the need for an order of protection from a former partner, family member, or dating relationship, there are two ways to file a domestic violence complaint.

  1. Contact your local police department and let an officer know that you want to file a domestic violence complaint.

Every municipality and every police department in the state of New Jersey has protocols in place to assist you in the filing of that complaint. Either the officer will come to your home to take your statement, or you will be asked to come to the police station to provide a statement, and that statement will then be used to complete a domestic violence complaint.

After completing the paperwork, that material will then be provided to the local municipal court judge for his review. That municipal court judge will then read the allegations made to decide if there is a sufficient basis to issue a temporary restraining order (standard for the issuance of a temporary restraining order is lower than the standard applied at the time of a final hearing by a superior court judge). The municipal court judge may also take testimony from you about your claims to help flesh out the reason for your request for an order of protection.

  1. Alternatively, you can go down to the superior court in the county where you live and ask to speak with a domestic violence intake officer, who will take your statement and assist you in filling out the paperwork for the filing of the complaint.

Again, that material you provided to the intake officer will then be presented to a superior court judge for her review. And, again, that judge may want to take testimony from you to help flesh out the basis for your request for an order of temporary protection.

Presuming that either the municipal court judge or the superior court judge issues a temporary restraining order in your favor, in that order, it   will set a return date before a superior court judge for you and for your former partner to appear and that a copy of that temporary restraining order will be also be given to the local police department to serve on the other party. The police department will serve a copy of that order on him / her with direction that he / she is not permitted to have any contact or communication with you while that order is in place. The other party then has to go down to the police station to be fingerprinted, and the police officers will explain to him / her the potential consequence of violating the court order.

On the return date of the temporary restraining order, the officers in the courthouse will direct you to a specific location (identified as the victims’ area) and upon entering the courthouse, the other party will be directed to a different area to wait (identified as the defendant’s area). In advance of appearing before the court, you will meet with a domestic violence intake officer and you will be given the choice of whether to dismiss your complaint voluntarily or whether you wish to go forward with a hearing before the superior court judge on your request to make the order of protection permanent.

A similar type discussion takes place with the other party, where he / she is told by the intake officer that they can either agree to the imposition of a permanent order of protection in your favor or he / she has the right to challenge the issuance of that temporary restraining order in a hearing before a superior court judge. The decision to dismiss the matter though is only given to you.

Presuming the matter is going to proceed to a hearing (another word for “trial”), the court must limit the testimony presented by you to the information contained in your complaint as to what occurred and why you need an order of protection – meaning if you forgot to tell the intake officer or the police officer about another incident or other bad actions, you cannot testify as to those claims in the trial. This is where most people make mistakes when they file domestic violence complaints.  They are either embarrassed to detail everything that has happened; they think it is unnecessary to give that information or feel rushed to get the complaint completed. If getting an order of protection is important to you, then take your time and make sure that you include everything that you feel is relevant to your fear of the other party. If you forgot to include a claim or an incident, go back to the court or to the police department before the return date of your matter and ask to amend the complaint to add the additional material. The intake officer / police officer cannot refuse to permit you to amend your complaint to include the additional material.

As a general statement, after a temporary order of protection is issued, the return date of your matter before the superior court judge is 10 days – referred to as the cooling-off period. During that period of time, the other party is not permitted to have any form of contact or communication with you nor permitted to have anyone else contact you on his behalf, and it gives you time to decide if you feel you need a final order of protection. Sometimes, the issuance of a temporary restraining order is a good wake up call for the other party to recognize that his / her behavior is unacceptable and cannot continue or that they need mental health assistance. Sometimes, you realize that they are never going to change and that an order of protection is necessary. The key though, is that you have time to decide what is best for you.

While you may not be able to afford the cost of retaining a lawyer to represent you in the hearing, the cost of a consultation with an experienced family law specialist is important to help educate you on what you need to testify to at trial.

Too many times, people seeking an order of protection lose at those trials, believing that the court system failed them when in reality, they simply did not understand what they needed to present to the court or how to present that information to the court properly. The old adage of “penny wise and dollar foolish” applies to this setting. Get educated and understanding what the court needs from you and how to present that information is critical, since losing in a domestic violence setting means that the temporary order of protection is gone.

Hopefully, there are two main takeaways from this post.  (1), when you are filling out the domestic violence complaint, you should include everything and evert reason that you feel is relevant to your fear of the other party, including all prior incidents, and (2) even if you cannot afford to hire a lawyer to represent you in the hearing, it’s worth spending the money to meet with an experienced family law specialist in advance of that hearing date to better educate you on what you will need to present to the court  and how that information needs to be presented. These 2 takeaways will hopefully allow you the best chance of obtaining a temporary or final domestic violence order of protection.