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Silver v. Silver: The Requirements of a Final Restraining Order in New Jersey

Published: September 1, 2016

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Morris NJ Restraining Order Lawyers The Prevention of Domestic Violence Act (“PDVA”) controls when the New Jersey Superior Court, Chancery Division, Family Part can enter a Final Restraining Order (“FRO”). See N.J.S.A. 2C:25-17 et seq. However, in addition to the PDVA’s requirements that must be satisfied before a Family Part judge enters a Final Restraining Order, the New Jersey Superior Court, Appellate Division in Silver v. Silver, 387 N.J. Super. 112 (2006) further clarified what a judge must find before entering a FRO.

According to Silver v. Silver, there are three things that must be assessed before a court can enter an FRO:

  1. The parties’ particular relationship with one another.
  2. The alleged predicate act of domestic violence perpetrated by the defendant.
  3. A need to protect the alleged victim.

The PDVA sets forth a basic threshold requirement before a court can formally enter an FRO: that the two parties were in a particular relationship. Specifically, the PDVA applies only when the alleged perpetrator and the alleged victim are current or former spouses, current or former household members, have a child in common or are expecting a child, or have had a dating relationship.

Protecting Victims of Domestic Violence

In addition to the necessary relationship between the plaintiff and the defendant, the New Jersey Superior Court, Appellate Division enumerated two specific requirements that must be met for a trial court to enter a Final Restraining Order:

  1. A predicate act of domestic violence as defined by the PDVA.
  2. A need to protect the victim from further abuse.

The first Silver v. Silver requirement is that the trial court must find by a preponderance of the evidence (meaning “more likely than not”) that the defendant perpetrated a predicate act of domestic violence, as defined by the PDVA. According to N.J.S.A. 2C:25-19(1) through (18), there are 18 sufficient predicate acts of domestic violence: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, stalking, criminal coercion, robbery, contempt of a domestic violence order, and any other crime involving risk of death or serious bodily injury.

In addition to the commission of a predicate act of domestic violence, the court must find that the defendant poses an immediate or future danger to the plaintiff. That is, the second Silver v. Silver requirement that must be met before a court will enter a final restraining order is that a restraining order is necessary in the first place to protect the victim. Specifically, the Appellate Division held that “the guiding standard is whether a restraining order is necessary…to protect the victim from an immediate danger or to prevent further abuse.” To support its conclusion regarding the second requirement, the court pointed to N.J.S.A. 2C:25-29(b), which states that “[i]n proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse.”

In Silver v. Silver, the trial court found that the defendant in the domestic violence case did commit actions that constituted criminal trespass and assault. In that particular case, the defendant forced herself into the plaintiff’s car and then punched him and scratched him. However, the trial court excused the defendant’s actions as those associated with a situational, marital dispute rather than an act of domestic violence. As a result, the trial court dismissed the case. The Appellate Division later found error with the trial court’s conflated analysis and held that when a trial court finds an action that falls within the purview of the PDVA, regardless of the situation, then the court must specifically assess whether or not a restraining order is needed to protect the plaintiff from an immediate or future threat of domestic violence. Accordingly, the Appellate Division remanded the matter of Silver v. Silver to the trial court for further proceedings to evaluate whether or not an FRO was necessary to protect the plaintiff.

Filed under: NJ Domestic Violence Law, Predicate Acts of Domestic Violence

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