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Tue. Jun 25th, 2019

Legal Protections for Domestic Violence Victims in New Jersey

According to statistics from the National Coalition Against Domestic Violence, every minute in the United States an average of 20 people experience physical violence by an intimate partner, amounting to more than 10 million people every year.

Approximately 1 in 4 women and 1 in 9 men experience severe intimate partner physical violence, sexual violence and/or stalking . In intimate relationships, physical violence is often accompanied by emotionally abusive and controlling behavior as part of a systematic pattern of dominance and control. This is commonly referred to as  “domestic violence”.

Domestic violence can occur in any community and can happen to anyone regardless of age, socio-economic status, sexual orientation, gender, race, religion, or nationality. Domestic violence can cause long lasting psychological trauma, physical injury, or even death.

Learn about about New Jersey domestic violence law in the this interview with guest Carol Weissman, Senior Staff Attorney at Northeast New Jersey Legal Services.

JC: First, can you tell us how domestic violence is defined according to New Jersey law?

CW: In New Jersey law, domestic violence addresses physical, emotional, psychological and/or sexual abuse that happens in a domestic relationship. So you want to distinguish this from relationships that may happen with strangers or neighbors or just acquaintances which you might know.

It specifically addresses a situation that might apply between a spouse and a former spouse, household members who are currently living together or who have lived together in the past, anyone who is in a dating relationship, people who have a child in common, or an elderly or disabled person who may have been abused by a caregiver, in which case you don’t need that domestic relationship, the point is that the caregiver may be the abuser.

Domestic violence law in New Jersey addresses the issues of power and control in relationships between partners of any proclivity; husband/wife, same sex, any relationship.

JC: What is the first thing that someone should do if they have experienced an incident of domestic violence?

CW: The very first thing that’s important in any issue of domestic violence is safety. So, even before any legal action is taken, it’s very important for the victim to be safe. If the victim is presently in a situation where they are in the same location as the abuser and they can’t get to a phone to dial 911, then they should try to get to a safe room.

If they can safely leave the premises, they should do so, and then call 911.  The critical thing is to secure the victim’s safety and the safety of any children that might be in the environment. Then, after the victim is in a safe location, they should immediately call 911 if the immediate danger is there, and the abuser is still in their presence.

If the abuser has left the location where the abuse occurred, they can call 911 even if the abuser just left. Or the victim of domestic violence can proceed to get a restraining order.

JC: Are there circumstances where the victim of domestic violence can stay in the residence and get a restraining order that would prohibit the abuser from being there?

CW:  Absolutely, that’s absolutely the definition of a restraining order. Initially, what would happen is the victim is going to apply for a Temporary Restraining Order (TRO). There is absolutely no requirement that the victim must leave the home. Sometimes abusers will tell victims “You have to leave” or “You can’t get me out”.  That’s totally not true. Once a victim of domestic violence gets a restraining order they will have the ability to remain at the premises provided that they think it would be safe. There is no requirement that they have to flee or should flee. But, again, the main priority as far as domestic violence victims are concerned is to make sure they are safe.

Once the victim gets the restraining order, Temporary Restraining Order to start, they can go back to their residence and if the abuser tries to come back, the victim can indicate to the abuser that they are not allowed to be there, even if the abuser was not yet served with the TRO.  If the abuser does not leave, the victim can call the police, and the police will remove the abuser once the victim gets the Temporary Restraining Order.

There will be a trial and a hearing to determine whether the Temporary Restraining Order will be permanent. But until that trial has occurred, the restraining order will remain in place and the abuser will not be allowed to come back to the premises, and at that point, the victim will have the premises in a safe sense.

JC: How does a victim of domestic violence go about getting a restraining order?

CW: There are a couple of ways that a victim of domestic violence can get a restraining order, and it really depends upon when the incident of domestic violence occurs. If a person wants to get a restraining order and its during the business hours of the court, usually between 8:30 am and 3:30 pm in New Jersey, the victim can go to the courthouse in the county where the victim lives, where the victim has had to flee to, where the incident of domestic violence occurred or where the abuser is living. Most often what you see is that the victim is living in the county where the domestic violence occurred, so that would be the county courthouse where the victim usually goes to get a restraining order.

If it’s an emergent situation that has happened during the day, the police were involved, and for some reason it’s impossible for the victim to get to the courthouse, there are means by which they can get the restraining order through the police and the municipal courts. If the domestic violence happens after business hours or on a weekend or holiday, then the restraining order is going to be through the municipality or town where the abuse occurred.

It is important for victims to know that if they do apply for a Temporary Restraining Order through their local police department and the police department contacts a local municipal court judge, if that municipal court judge denies their request for a restraining order, the victim has the automatic right to go to the County Court the next business day to appeal to the County Superior Court judge and restate the facts to get the restraining order granted.

JC: Is a police report always necessary to get a restraining order against a perpetrator of domestic violence?

CW: No. It is not necessary that the domestic violence have been reported to the police. You can get it just upon the testimony of the victim. However, if there is a police report, the victim should be aware that if they want use information from the police report to get a restraining order in court, the police report can not be admitted into evidence unless the officer is there to testify.

If the victim has an attorney, the attorney can subpoena the police report and the police officer who wrote the report to testify in court.  If the victim is self-represented, they can usually go through the Ombudsman of their County Courthouse to help them complete the subpoena.

JC: Does the perpetrator of domestic violence get arrested and go to jail?

CW: Sometimes. Its important to know that the context that we are talking about right now is getting a domestic violence restraining order through the Superior Court of New Jersey.  To get technical for a minute, that’s a civil action. There are nineteen different predicate acts that can be the basis for the entry of a restraining order. Some examples are assault, terroristic threats, harassment, false imprisonment, criminal trespass, and cyber harassment, to name a few.

Those same acts also have a criminal parallel where there can be charges in the criminal courts against the abuser. What will happen typically is that, for example, there will be an assault, the police will be called and will assess the situation to determine whether an arrest should be made. It is mandatory for the police to make an arrest if they see any marks on the victim, if there is an outstanding warrant for the abuser, or if there is a weapon involved. It is a mandatory arrest regardless of whether or not the victim wants the abuser arrested.

Then what is going to happen, is that there will be two parallel paths the case will take. The abuser will be charged criminally and the victim will have the opportunity to get a restraining order in civil court. So there could be two parallel cases going on at the same time related to the same incident of domestic violence; the civil case for the restraining order in civil court initiated by the victim of the domestic violence, and the criminal case in criminal court where the victim is a witness and charges are brought by the prosecutor.

A lot of times, victims don’t understand that there are two separate proceedings and the victim doesn’t control whether the criminal proceedings go forward or not, that’s the prosecutor’s decision. But domestic violence victims do decide whether or not they want to go to trial to get a final restraining order or seek some other relief.

JC: In your experience assisting the victims of domestic violence, what are some of the most common obstacles victims encounter when trying to protect themselves and what can they do to overcome them?

CW:  One thing that is really important for people to know is that domestic violence cuts across all different levels of society. It doesn’t matter where you are on the economic scale, what your background is or where you come from. Domestic violence is all about power and control. Sometimes the hardest thing for a victim to do is acknowledge that they are being abused and realize that they need help and that there is help for them out there.

It is often very difficult for many domestic violence victims to get the courage to get a restraining order against their abuser. To help make that decision, there are a lot of really good counseling agencies, organizations and hotline numbers that are out there, different ones in every county.

Finances are a really big factor also. A lot of times the abuser has been the financial provider for the family and the abused victim will lose access to those resources. And that does become difficult, because the victim may ask for financial relief even in the Temporary Restraining Order, but then they need to figure out how they are going to survive financially going forward.

If a Final Restraining Order is granted, the court may order different forms of relief to the victim such as possession of the residence, relief to pay rent, or perhaps to pay child support. Depending on the circumstances, sometimes there can be financial assistance through other agencies such as the Board of Social Services.

And then there are issues of how one is going to deal with other life issues as a single individual. If someone has children for example, how do they work out child care?  Again, that’s where some other agencies can help victims of domestic violence in their lives going forward.

Also, victims need to learn how to psychologically get over the cycle of violence and how do deal with issues of power and control in relationships so the person can have healthy relationships in the future. Counseling can help with that.

And sometimes there are family and friend factors at play, and peer pressure. Very often victims of domestic violence seem to think that its something they can’t share with their friends or family members, or they feel pressured by friends and family to stay with their abuser. So, that’s another hurdle. Getting beyond those issues can be a challenge. But once domestic violence victims get over those initial hurdles, they can move forward and start rebuilding their lives.

JC: What assistance does New Jersey Legal Services provide to victims of domestic violence?

CW:  I work at Northeast New Jersey Legal Services which serves Bergen, Passaic and Hudson counties. We are part of the greater group of New Jersey Legal Services providing free legal services throughout the entire state. We serve the population that cannot afford legal counsel. The qualifications are on a case by case basis.

If an individual is in a domestic violence situation and they want to know what their rights are, we can provide legal advice. If it gets to the next level where the victim has already obtained the restraining order, we can assess their case to see if we can represent them in court to get them relief, whether that’s going to be getting a Final Restraining Order, or any other relief, such as custody, child support, possession of a residence, or any relief for possible damages.

To see if you qualify for free legal assistance, contact New Jersey Legal Services statewide hotline at 1-888-576-5529.

More Domestic Violence Resources:

National Domestic Violence Hotline: 1-800-799-7233, (TTY) 1-800-787-3224

Call 211 to find out about local domestic violence hotlines and shelters, or click here.

The information on this website is intended as general legal information only and should not form the basis of legal advice of any kind. Individuals seeking specific legal advice should consult a lawyer.

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