Domestic Violence Representation, Abridged
Lesley Renee Adams, Attorney at Law
What you don't know can hurt you, whether you are the Plaintiff or Defendant you have a very short time, as short as 10 days to protect your rights.
A Domestic Violence Complaint usually results in a Temporary Restraining Order [TRO] which is an Ex Parte Application to the Municipal or Family Court. Ex Parte means that the other side did not receive notice or have an opportunity to have the Court hear their side. The relief, obtaining a TRO, is deemed emergent and therefore because the restraints are temporary, less than ten days before the defendant receives a hearing, it is deemed appropriate, the risk of harm out weighs the violation of the Defendant's due process rights. It is the easiest way to get custody of children in New Jersey in FD (custody) or FM (divorce) cases (First Strike). Is the alleged act of domestic violence claimed just before or just after FD or FM is filed? Did the alleged act of domestic violence have anything to do with a child, was a child present, witness or additional victim of violence. Is a Risk Assessment needed?
As Counsel of Alleged Victim: Domestic Violence is quasi-criminal. As Plaintiff's attorney you must know the Elements of the Offense Charged. Those elements are defined by the criminal statutes, the difference is that the burden of proof is much lower in Family Court, it is not "beyond a reasonable doubt", it is "by a preponderance of the evidence". If the Plaintiff's attorney does not prove each element of the offense, then you, the Plaintiff will not meet your burden of proof and there will be no Final Restraining Order [FRO]. The standard of proof “by a preponderance of the evidence” is often defined as more likely than not or the 51%~52% range. By contrast, beyond a reasonable doubt is defined as 99%. If an FRO is granted, the Plaintiff is entitled to reasonable attorney fees N.J.S.A. 2C:25-29b4.
As Counsel of Alleged Aggressor: Defendant's attorney should determine if you were advised of your right to counsel? This is important if you are charged criminally at the Municipal or State level in addition to having a TRO issued. In that event you will have to defend yourself in two separate court systems. If the answer is no, and the offense has a penalty which is a consequence of magnitude then you may have to seek the issuance of an interlocutory appeal. State v. Ashford 374 N.J.Super 332. What is a consequence of magnitude? Imprisonment on Municipal Court offense, loss of driver’s license, loss of employment, immigration issues, travel restrictions, etc.? At the State level, you could be charged with a 4th ~ 1st degree offense(s). In that event, you, as the defendant can either hire two attorneys, one for the Family Court matter and the other for the Criminal Court matter or hire an attorney that can handle both. Remember, unlike a criminal case where you are constitutionally entitled to an attorney, i.e. a public defender, you are not entitled to an attorney in Family Court. Are you, the defendant, in the military or a member of law enforcement: use of duty weapon and the like are specifically permitted with some restrictions. See 2C:25-29b. If you are the Defendant and the FRO is not granted the Plaintiff does not receive counsel fees.
Domestic Violence is real, but there are those "victims" that cry domestic violence when it never occurred commit the worst kind of domestic violence. If that is what has happened to you, then you must protect yourself at all costs because the consequences to you, your children and your employment are real too. Contact an attorney for help.
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© 2013, Lesley Renee Adams, Attorney at Law