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New Jersey Court on Predicate Acts of Domestic Violence


It is well-established that domestic violence is a vastly underreported crime. Analysis published in the Journal of Epidemiology and Community Health made reference to “the iceberg” of domestic violence, wherein about 25 percent of women experience some form of intimate partner violence throughout their lifetimes, but most of those cases are unreported. Typically, only the most severe incidents of violence are reported to authorities.

That brings us to the case of I.E.A. v. M.A., an appeal over denial of a final restraining order (FRO) to the New Jersey Superior Court, Appellate Division. Central to the case was the fact that plaintiff had not reported previous acts of domestic violence to a certain person. The lower court had denied plaintiff’s application for a final restraining order against defendant and dismissed her complaint and an amended restraining order. The appellate court vacated the lower court’s order, reinstated the complaint and temporary restraining order and remanded for a new trial.

According to court records, the couple’s marriage was arranged in another country. Husband/defendant is a U.S. citizen, while plaintiff is a citizen of the other country. Soon after the wedding, the husband went back to New Jersey, leaving his pregnant wife in their native land. She gave birth to their child, who had special needs, and later joined her husband in New Jersey on a temporary visa.

Within one year, plaintiff filed a complaint and application for a temporary restraining order against her husband, alleging assault, terroristic threats and harassment as “predicate acts of domestic violence.”

As our family law attorneys can explain, obtaining a temporary restraining order or a final restraining order requires proof of certain grounds. Among these is that defendant committed a “predicate act of violence.” The burden of proof is on the person asking for the TRO or FRO.

The lower court issued a temporary restraining order (TRO). In an amended complaint, plaintiff alleged defendant attacked her when she questioned him about not attending a relative’s funeral. Another time, she alleged he beat her after she had henna applied to her hands as part of a religious observation. Another time, she said she jokingly struck his behind and he responded by hitting, shoving and kicking her. A few days later, he threatened her with a belt and choked her. In one encounter, she initially thought he was joking, but soon realized he was serious and meant her harm.

After revealing the abuse to a neighbor, plaintiff said defendant granted her permission to return to her home country but would not allow her to take their son. With the help of a neighbor, she moved into a domestic violence shelter. When she returned for her belongings, she requested police presence. Defendant reportedly did not initially respond to police requests to open the door. When he finally did, he proceeded to call his wife numerous names and accused her and her mother of being prostitutes. As noted by the neighbor (a native of the same country as plaintiff and defendant) such accusations could lead to shunning, isolation and poor treatment in their community.

At trial, defendant denied plaintiff’s allegations, noting in one instance, “He could not have been angry with plaintiff because it was a religious holiday and people are happy on religious holidays.” He did admit to threatening to hit her if she didn’t stop asking questions. He also said he regularly hit her on the top of the head and bit her.

He testified that he didn’t care much what the plaintiff did, yet he often yelled in court while giving testimony about the plaintiff. Further, testimony from a close friend of the defendant said the plaintiff had never told her about the abuse. She added she wasn’t aware of any problems at all with domestic violence in their native country – even though court records in another case indicated she herself was a victim.

The lower court chose to deny plaintiff’s application for a full restraining order (FRO), finding she had not established by preponderance of the evidence that defendant had committed the predicate acts of assault, terroristic threats or harassment. The court failed to discuss the statutory elements of the predicate acts of domestic violence that were alleged or make an explicit credibility finding of either party.

The trial court judge did explain that the plaintiff’s testimony of defendant slapping her when she asked for diapers and juice indicated the defendant would have been “totally irrational” – and the judge did not observe the defendant to be totally irrational. Further, when the plaintiff testified she thought her husband was joking when he first slapped, the judge found this a “very peculiar description.” The judge also thought it “odd” that plaintiff confided to her neighbor, “a complete stranger” about the abuse. He speculated that the plaintiff sought an FRO to secure an unspecified advantage as to her immigration status, citing her testimony that if she returned to her native country – without her son – it would be her husband’s right by law to refuse to allow her to return to New Jersey. As a non- U.S. citizen, she would have little recourse. None of this, the judge held, established predicate acts of violence necessary to issue an FRO.

On appeal, plaintiff argued the trial court erred by improperly applying the Prevention of Domestic Violence Act by not telling a specific person about the abuse and ignoring witness testimony. She further argued the trial court improperly disregarded plaintiff’s witness and failed to properly apply the statutory definition of harassment to the situation.

In its reversal, the appellate court noted no precedent requiring domestic violence victims to disclose abuse to a certain person to establish a predicate act of abuse under the PDVA. Further, failure to disclose abuse to someone doesn’t mean the victim isn’t credible.

As our Monmouth County domestic violence lawyers know, there are many reasons why victims of abuse do not open up about what they’ve endured. Cultural and religious norms, such as those at issue here, can be a major factor. Further, domestic violence and abuse does not need to be constant and uninterrupted in order to warrant protection for the victim. Victims do not need to prove they were in fear each waking minute to prove predicate acts necessary for the court to issue an FRO.

If you are a victim of domestic violence seeking a temporary restraining order or final restraining order in New Jersey, our compassionate, experienced family law attorneys can help.

Call Rozin|Golinder Law, LLC today at (732) 810-0034 for a free and confidential
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