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Violating a Restraining Order
What are contempt proceedings?
In many cases, a restraining order simply is written in an unfeasible manner. In most instances, divorced couples still have to raise their children together even when a restraining order bars them from having any contact with each other. When the parties are married, a Family Court will issue a restraining order if there is a finding of domestic violence. However, the Family Court almost always will still permit the parties to communicate about issues that concern the raising of the children. Unfortunately, a restraining order that permits the parties to communicate with regard to the raising of the children often creates more problems than it solves. In my experience, quite frequently a former wife uses a restraining order as a weapon against her former husband. Unfortunately, the use of restraining is one of the most abused areas of matrimonial law.
If there is a violation of a restraining order, then the violation is handled in the Family Court, as long as the contempt charge is only a disorderly persons offense. If the violation is more severe such as an assault or battery, then the contempt charge is a fourth degree offense, and the violation of the restraining order is heard in the Criminal Part, Law Division of the Superior Court.
In summary, violations under the contempt statute can be either a petty disorderly persons offense or a fourth degree crime. If the contempt charges are disorderly persons offenses, then the violation of the restraining order is heard exclusively in the Family Court. If the contempt charge is an indictable fourth degree offense, then the case is heard in the criminal courts. There has to be some type of physical violence for a contempt case to be heard in the criminal courts.
My wife threatens to file a contempt complaint against me whenever I don't pay my child support obligations on time? How can I protect myself?
In many cases, a Family Court will issue a restraining order, but permit the parties to communicate with regard to the raising of the children. In this type of scenario, the restraining order is often used by former wives as a weapon against their former husbands. It is important to emphasize that if the scope of communication is that the defendant merely has contact with the victim, problems with visitation, attendance at counseling, or making payments as ordered then this is not deemed to constitute a violation of any restraining order.
Most courts realize that there is a tremendous amount of abuse with regard contempt offenses when the parties are former spouses. Therefore, when the parties are former spouses or are separated, then in only the most extreme cases will the court find a contempt violation.
An interesting case is State v. Wilmouth, 302 N.J. 20 (App. Div. 1997). Here, the Appellate Division found that a father is not guilty of contempt for violation of a domestic violence order when he inquires of the mother as to whether he will pick up the child for visitation the next day, despite the final restraining order prohibiting contact between the parties. The court held that this was a trivial, non-actionable event.
In this case, the father made an oral statement to the child's mother "in which she described as a hostile manner and gruff voice, am I going to see her tomorrow?" There was testimony that there was prior communications as to visitation arrangements between the father and the mother previously by telephone.
The Appellate Court noted that "we are further of the view that the prosecutor as a matter of prosecutorial discretion, clearly has the right had he chosen to exercise it, not to prosecute this matter," and further states:
"The Domestic Violence Act affords critically needed protections in appropriate situations. It was not intended to attempt to regulate and adjudicate every loss of temper, angry word, or quarrel between persons connected by familial relationship."
In summary, if a divorced father is charged with violating a restraining order then he should focus his defense on the Wilmouth case. A defendant can explain to the court that it is impossible to raise children unless there is some type of communication with a former spouse. Moreover, a defendant should emphasize that even in a perfect marriage there is still always some discord and arguments over raising the children.
What is the standard of proof to find a defendant guilty of violating a restraining order?
The standard of proof in contempt charges is "beyond a reasonable doubt" rather than the standard of "preponderance of the evidence." The State must also prove that the defendant "knowingly and purposefully" intended to violate the restraining order.
I have reconciled with my wife and we are now living together once again. Can my wife still file a contempt complaint against me if we start fighting again?
In my experience this type of scenario occurs all too frequently. At the original domestic violence hearing, the parties seem to hate each other just like a heated Yankee and Red Sox rivalry. Quite to my surprise, I routinely receive phone calls from my clients that they reconcile with their spouse or girlfriend even after a restraining order was issued. There is no logic or rational thinking in the arena of family law. The sooner a person or family law practitioner grasps this concept, then the easier time he/she will have in the Family Courts.
The law is split if there is a reconciliation by the parties and if there is still an existing restraining order. In the case of Mohamed v. Mohamed, 232 N.J. Super. 474 (App. Div. 1989), the court held that a defendant could not be held in contempt for the violation of a restraining order where there was a reconciliation with the plaintiff.
Alternatively, there is legal authority that holds that a reconciliation does not void a restraining order. Illustrative is the case of State v. L.C., 283 N.J. Super. 441 (App. Div. 1995). Here, the parties reconciled without formally dismissing the temporary restraining order. The plaintiff was forbidden from having any contact with the plaintiff. The couple was not living together and the temporary restraining order was issued after the defendant had words with the plaintiff's mother. After the issuance of the temporary restraining order, the plaintiff and the defendant moved back in with each other, had multiple acts of sexual intercourse, and went to Jamaica together. Despite the parties reconciliation, the restraining order was still formally in-place. The court ultimately held that the reconciliation between the parties did not void the restraining order so as to serve as a defense to a charge of contempt for violating same.
What are the enhanced penalties for a second contempt offense?
In many cases, contempt charges are filed routinely and become a way of life for divorced spouses. There is an enhanced penalty for a second domestic violence contempt offense. A person found guilty of a second domestic violence charge must serve a thirty-day jail term. The thirty-day jail term is mandatory, and it is not discretionary.
The best defense for a second contempt offense is to emphasize that "you can't kill the goose who lays the golden egg." Unfortunately, after a bitter divorce many people are simply emotionally destroyed. They can't control their anger, rage, and disappointment. In my opinion, the courts should incorporate more family counseling and therapy to address domestic violence offenses and contempt charges. I always try to emphasize to a former wife who is filing a contempt charge for a second offense, that her former husband will lose his job if he is convicted. I will further explain to the former wife that a conviction for a second offense carries a mandatory 30 day jail term. In my experience it is always advisable to obtain a few adjournments in a second offense contempt charge case. I always advise a former husband to cure any child support arrears and to pay any missed alimony payments. Moreover, I always advise my clients to pay any miscellaneous medical or dental bill for their children.
The bottom line is that a former wife will be much more inclined to drop a complaint for a second contempt offense if she believes that the former husband is adequately supporting her and the children. Alternatively, if the former husband is a deadbeat, then most former wives are only too eager to convict their former husband, and to see him sent to the "County."
New Jersey is an equitable distribution state, meaning that the division of property in a divorce is to be done fairly, not necessarily equally. The court can take into consideration any factor it deems relevant when dividing property, but it must consider certain factors, such as how long the couple was married and the age and health of both spouses, the income or property brought to the marriage by each spouse, the standard of living that was achieved during the marriage, and the extent to which one spouse may have deferred career goals, among others.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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