Civil Restraints Without a Court: Is It Time to Expand the Family Part’s Jurisdiction?
When a victim obtains a Temporary Restraining Order pursuant to the Prevention Against Domestic Violence Act, the parties have three options: the victim can choose to dismiss the restraining order with no further protections; he or she can choose to obtain a Final Restraining Order (FRO); or the parties can enter into “civil restraints.” Civil restraints, in its simplest form, is an agreement reached between the parties to leave each other alone or at least limit contact. That agreement can take many forms–it can be incredibly detailed and specific, or it can be broad and generic. Many attorneys frequently recommend their clients enter into civil restraints because it provides a “sure thing”–it will provide assurances to both parties, rather than the risk of a trial where a court may, or may not, issue an FRO.
While civil restraints agreements have a lot of benefits, there is a significant drawback that was thrown into the spotlight recently by the Appellate Division. If the parties have a child in common or are married, these agreements can take the form of consent orders that can be enforced in the Family Division, either through a divorce docket or a non-dissolution (non-divorce child support/custody) docket. However, when there is not an underlying marriage or child in common, these agreements are effectively a contract that, if one party violates, the question becomes: how do you enforce it?
In the recently published decision D.V. v. S.L., the court addressed the other end of this question: when a party seeks to challenge the validity or enforceability of an agreement, how can they seek to do that? S.L. obtained a temporary restraining order against D.V. in late 2023. The parties were never married, had no children together and were no longer living together. In January 2024, the TRO was dismissed, and the parties entered into a civil restraints agreement.
Following the civil restraints agreement, D.V. decided he did not want to be bound by it anymore, and he filed an action in family court to set aside the agreement. The Family Division found that it did not have jurisdiction over the matter, and D.V. then filed a similar application in the Law Division, which also dismissed D.V.’s application for the same purported reason, claiming it did not have jurisdiction over the matter.
This, of course, created a vacuum not only for D.V. but also for S.L. Who had the power to determine if there was a basis to set aside the agreement, as D.V. requested? Alternatively, if D.V. violated the agreement, who had the power to enforce that agreement? The decisions by the Family and Law Parts created a vacuum, and D.V. ultimately appealed the Law Division determination.
The Appellate Division reversed and remanded the matter to the Law Division, confirming that the Law Division does have the jurisdiction to enforce and/or set aside agreements reached between two parties. The Appellate Division stressed the presumption that a party has a right of access to the court, and therefore determined this matter should presume in the Law Division. At the end of the decision, however, the Appellate Division noted that the Law Division Judge had said the Family Division “may have more expertise to deal with the subject matters at issue.” In a footnote, the Appellate Division recommended “that one or more appropriate Supreme Court Committee(s) address this jurisdictional issue going forward.”
The recommendation by the Appellate Division is well-founded, and family law attorneys have always advised clients that not all civil restraints can be memorialized in a consent order. While the Appellate Division clearly agrees with that advice, one has to wonder: is that accurate advice?
New Jersey Court Rule 5:1-2(a) governs what matters can be heard in the Family Part, and it provides that “[a]ll actions in which the principal claim is unique to and arises out of a family or family-type relationship” are subject to the Family Part’s jurisdiction. That, of course, begs the question: what, exactly, is a “family-type” relationship?
S.L. could only have obtained a restraining order if the parties at any time were married, lived together, had a dating relationship or had a child in common. Since the parties in this case were not married or had a child in common, they clearly at one point lived together or had a dating relationship. Is that truly not enough for a “family-type” relationship? Maybe it’s not in some cases, and the Appellate Division is right to consider whether the Family Part’s jurisdiction should be expanded. But in fact-specific circumstances, it may well be that the matter should be in the Family Part, and litigants should be prepared to argue that they had a “family-type” relationship that entitles them to jurisdiction in the family court. Just because the courts have decided (for now) that litigants can only have their agreement memorialized in a consent order under limited circumstances does not mean the court has it right.
Perhaps the most troubling aspect of D.V. is not the ultimate jurisdictional ruling, but the procedural journey necessary to reach it. A litigant sought judicial review of a contract imposing significant restrictions on his conduct. He was turned away by both the Family Part and the Law Division, and that should never happen. That is an extraordinary expenditure of time and resources simply to determine which court may hear a dispute. The issue is not whether the litigant’s challenge to the agreement will ultimately succeed. The agreement may prove enforceable in whole or in part, and the opposing party may have valid defenses. Those are questions for the court adjudicating the merits. The issue is that parties should not have to litigate their way through multiple divisions of the Superior Court simply to identify a forum capable of hearing their claims.
The Appellate Division has now provided guidance that should prevent the precise procedural impasse encountered in D.V. from recurring. But the decision also presents an opportunity to consider whether the existing allocation of jurisdiction best serves litigants and the administration of justice. Civil restraint agreements are a familiar and important part of New Jersey family law practice. Their interpretation and enforceability should be governed by a clear, predictable procedural framework, and hopefully soon they will all be governed where those agreements so often originate: in the Family Part.
If you have any questions or are seeking legal counsel to receive a civil restraint agreement, reach out to our Family Law Group.
