Appellate Division Strengthens Prevention of Domestic Violence Act
In a published opinion last week, the Appellate Division further strengthened the Prevention of Domestic Violence Act (PDVA) and reaffirmed the Act’s core purpose of assuring victims of domestic violence “maximum protection from abuse the law can provide.” This important decision was not altogether unsurprising given prior case law, but nevertheless reaffirms that New Jersey continues to offer strong protections to domestic violence victims.
To give some brief background, the Prevention of Domestic Violence Act in New Jersey allows a party who has a qualifying relationship with a defendant to obtain a temporary, and ultimately a final, restraining order. New Jersey’s Final Restraining Orders (FRO) offer significant protections that most states do not provide, as we are one of just two states where an FRO has no expiration. To obtain an FRO, a victim must go through a hearing where he or she needs to prove first that there was, in fact, a qualifying relationship, and then that a specific act of domestic violence took place.
Once those prerequisites are established, our statute requires the court to evaluate “the necessity” of entering an FRO, considering a number of factors. This is commonly referred to as a “Silver analysis,” based on a prior case, Silver v. Silver. In that matter, the Appellate Division stressed that because the statute requires an analysis after a predicate act has been found to occur, the simple occurrence of a predicate act does not, by itself, grant a victim an FRO. Instead, the court must consider the necessity of the same in light of the factors contained within the statute.
Both Silver and the cases that came thereafter have stressed that in cases of physical violence, a Silver analysis will be “perfunctory and self-evident.” However, that does not mean the analysis does not occur.
This brings us to the recent Appellate Division case, G.G.S. v. A.C.B. The parties in that matter were involved in a brief dating relationship,—they had gone on just a few dates— which no one disputed qualified the victim for protection under the PDVA. Following that second date, the evidence demonstrated that the defendant repeatedly pressured the plaintiff to have sex with him and ultimately sexually assaulted and choked her.
The plaintiff obtained a Temporary Restraining Order, and the hearing for a final restraining order took place over two days. The plaintiff specifically testified not only about the sexual assault, but that the parties were going to be enrolled in the same college beginning in September, that they had mutual acquaintances and similar social circles and that she had serious concerns she would see the defendant in the future. She also expressed concern that he could come to her home or workplace, as he knew both locations, and that she had stopped attending her softball practices because the defendant was present at some of them.
The court found the plaintiff very credible and determined that the defendant had committed a sexual assault against her, and suggested (although did not find) that the defendant had also committed an aggravated assault by strangling her. The court then turned to a Silver analysis. Here, the trial court said that the parties live in different towns, had no prior history before their “one-week relationship,” and also credited that the defendant had expressed remorse. The judge found the defendant “clearly had predatory tendencies,” and noted “what he did was despicable,” but nevertheless determined there was not enough proof for the victim to obtain an FRO as a result of failing the second Silver prong.
At the conclusion of the matter, the court told the defendant he had gotten a “break” in not having an FRO administered against him, and that going forward, he was to leave the victim alone.
The plaintiff appealed. The Appellate Division began by reemphasizing that the PDVA “explicitly states that one of its core purposes is to assure the victims of domestic violence the maximum protection from abuse the law can provide.” The court also reemphasized the holding of Silver and its progeny, that the drafters of the PDVA “did not intend that the commission of any [predicate act] automatically would warrant the issuance of a domestic violence order,” and thus a Silver analysis is a necessary part of determining whether an FRO is entered.
The Appellate Division held that “as a general proposition, to ensure proportionality in effectuating the protective goals of the PDVA, the greater the level of violence that is proven, the easier it is for a plaintiff to satisfy the second prong of the Silver paradigm.” Put more simply, the more serious the predicate offense, the easier it is to determine Silver is satisfied and an FRO should be issued. The Appellate Division also emphasized that the PDVA does not “set[] a high bar for domestic violence victims who have already proved by a preponderance of the evidence that they were subjected to egregious physical violence during a dating relationship.”
The Appellate Division also acknowledged two competing principles of the PDVA: that, on the one hand, in conducting a Silver analysis, courts must consider whether there is a history of domestic violence, and on the other, whether an act is so severe that a lack of history is not disqualifying. While finding that “the absence of a pattern of past domestic violence weighs against the need for an FRO,” the Appellate Division made clear this is not dispositive, as this is only one factor to consider, and thus a pattern is not always necessary.
Given these holdings, the Appellate Division ultimately reversed and remanded for entry of an FRO. While this is generally viewed as a positive case for victims, it is nevertheless worth noting that the Appellate Division’s stress of certain offenses being more or less severe may have longer-lasting consequences and should be viewed with some caution. The Appellate Division specifically held that one sufficiently egregious action may be enough to warrant an FRO for physical offenses, but not for non-physical offenses, which practitioners know can be just as serious as physical violence. This opinion may well be used in those cases where a court sees an offense as “less serious” as requiring a higher burden of proof for victims, and victims should be prepared to push back against that by emphasizing that the PDVA continues to provide maximum protections for all victims of domestic violence, not just physical assault.
Importantly, practitioners and courts alike should remain mindful that the PDVA expressly recognizes numerous non-physical offenses, including harassment and stalking, as predicate acts of domestic violence capable of satisfying the first Silver prong. The absence of physical violence does not render these offenses inherently less dangerous or less deserving of protection. Indeed, stalking and harassment often involve patterns of coercion, intimidation, surveillance and psychological control that can place victims in sustained fear and create substantial ongoing risk. As a result, courts must continue to evaluate the necessity of an FRO based on the specific facts and surrounding circumstances of each case, rather than automatically minimizing or downgrading non-violent conduct simply because it does not involve physical assault.
If you are a victim of domestic violence or are defending against an allegation of domestic violence, our attorneys at Cohen Seglias are here to help. Our family law team includes a former prosecutor, and we have significant experience in the domestic violence realm. We encourage you to reach out and schedule a consultation to see how we can assist you today.
