Legal, Procedural, and Practical Issues in Domestic Violence Cases Involving Former Household Members
In the medical profession, the term “zebras” is used as a friendly reminder to residents and young doctors to first rule out the simplest explanations when diagnosing patients. “When you hear hoofbeats,” the saying goes, “look for a horse rather than a zebra.” Of course, any good doctor must also have the capacity to react to the unexpected, even if the proper protocol is to first rule out the commonplace. Similarly, appropriate advocacy for clients requires lawyers to utilize a similar process of deductive reasoning, particularly in an expansive area of the law such as representing clients at domestic violence hearings.
Family law practitioners regularly representing clients at final restraining order hearings (“FRO”) see many domestic violence cases involving romantic partners or former romantic partners. Borrowing the above metaphor from the medical field, these represent the traditional “horses” in this area of the law—the most common manifestation. But starting with the 1991 amendments to the Prevention of Domestic Violence Act, and continuing with case law developments in recent years, the trend has been for courts to enlarge the definition of victim. Therefore, it is increasingly likely attorneys will represent parent against child, roommate against roommate, child against parent, sibling against sibling, or the like. In fact, according to the New Jersey State Police Report Domestic Violence in New Jersey (2011), wives and ex-wives were the victims in just 18% of domestic violence arrests and those in dating relationships made up only another 14%.
When representing clients in matters where jurisdiction as a “victim” may be at issue, the first step is to remember that these types of cases---with regard to their proofs and procedures---are not entirely antithetical to those of more traditional FRO hearings. The major issues the litigants must address remain the same: proving or refuting a predicate act of domestic violence, reviewing the history of domestic violence or lack thereof, and addressing whether or not protection is necessary to prevent future harm.
This article addresses the current state of the law in cases involving “former household members.” This article will also emphasize the procedural and litigation nuances that may assist practitioners to more effectively advocate for their clients in these types of cases. The intent of this article is to frame such issues from the perspective of both plaintiff and defendant.
Pre-Coleman v. Romano
The language of the Prevention of Domestic Violence Act defines four (4) categories of victims. This article focuses on the second subset of victims, which
includes any “former household member,” [who is 18 years of age or emancipated]. In 1991, the Prevention of Domestic Violence Act was amended to include “former household members.”
Soon after the 1991 amendment enlarged the definition of victim to include former household members, courts began to chisel away at what was then perceived as overly broad language. For instance, in Jutchenko v. Jutchenko, 283 N.J. Super. 17 (App. Div. 1995), the Court found that the Prevention of Domestic Violence Act did not extend to a dispute between brothers who last resided together twenty years prior. The Court reasoned that the Legislature’s intent could not have been for a finding of domestic violence in such an instance unless it could be shown that “the alleged perpetrator’s past domestic relationship with the alleged victim provides a “special opportunity” for “abusive and controlling behavior.”
Similarly, in what may be considered the zenith of the courts’ aggressive carving out of what constitutes a victim, the Court in Sisco v. Sisco 296 N.J. Super. 245 (Ch. Div. 1996), dismissed an adult daughter’s restraining order for lack of jurisdiction when she sought a FRO against her father with whom she last resided with more than fifteen years prior. Here, the Court ordered an initial plenary hearing to address whether abusive and controlling behavior existed that would warrant the case falling within the purview of the Act. The Court reasoned that: “Family settings often give rise to long lasting acrimonious relationships…however, not every family dispute gives rise to a basis for the exercise of jurisdiction under the domestic violence statutes.”
Coleman v. Romano
The momentum of increasingly restrictive definitions of victim with regard to former household members shifted rather abruptly with the published superior court case Coleman v. Romano, 388 N.J. Super. 342 (Ch. Div. 2006). Here,the parties had long resided apart and the plaintiff was a sixty-eight year old mother seeking a FRO against her forty-five year old daughter. At the commencement of the FRO hearing, the defendant moved for a dismissal based on lack of jurisdiction.
After an evidentiary hearing, the Coleman court found a “special opportunity” for abuse and control existed, and in the published opinion, created a six factor test in determining whether proper jurisdiction exists in cases involving former household members. The Coleman factors are: (1) the nature and duration of the prior relationship; (2) whether the past domestic relationship provides a special opportunity for abuse and controlling behavior; (3) the passage of time since the end of the relationship; (4) the extent and nature of any intervening contacts; (5) the nature of the precipitating incident; and (6) the likelihood of ongoing contact or relationship.
Post-Coleman v. Romano
The Coleman factors have since been adopted in several unpublished appellate cases and in N.G. v. J.P. 426 N.J. Super. 398 (App. Div. 2012). In N.G. v. J.P., the court found jurisdiction existed over two adult siblings who had not resided together since they were children in 1960. The Court performed a Coleman analysis and, in dicta, noted that the length of time since the parties’ resided together is merely one factor to consider, and that Jutchenko and its progeny had therefore been eroded due to an overreliance on that one factor.
The recent unpublished case of J.E.Q. v. S.F.O. 2013 N.J. Super. Unpub. Lexis 722 (App. Div. 2013), however, provides indicia that expansion of the definition of “former household members” is not without limits. Here, the trial court’s entry of a FRO was overruled for a number of reasons, including the finding of jurisdiction when the plaintiff had a dating relationship with defendant’s son but indicated at trial that the parties themselves only resided together for “a couple of weeks.”
While the Coleman factors represent the current standard in these types of cases, it’s perhaps still too early to decide whether the Coleman factors favor jurisdiction in most instances or whether the appellate cases utilizing these factors merely possess facts favorable to jurisdiction.
With the status of the law now defined, the final portion of this article will turn now to examining some of the practical and procedural issues an attorney should consider when representing clients in these types of cases.
Practical Considerations and Procedural Questions
When representing the defendant, it’s important to review the case for any jurisdictional issues. Although the current law is restrictive, objecting to jurisdiction when appropriate and pressing the Court to perform an analysis of the Coleman factors is still a vital step. Even if unsuccessful, you will begin to infer Silver v. Silver 387 N.J. Super. type arguments and demonstrate that the tenuous nature of the parties’ relationship indicates granting the FRO is unnecessary even if the predicate act occurred. The nature of the parties’ relationship will continue to be a primary factor in the outcome of the case and should not be viewed in isolation as merely an avenue to attack jurisdiction.
Although the case law shows a plenary hearing on the issue of jurisdiction may be ordered, given the time-sensitive nature of FRO hearings, the more common practice is for the defendant to verbally object to jurisdiction at the start of the FRO hearing. At that time, the Court may take evidentiary testimony similar to a 104 hearing to determine if jurisdiction is appropriate. The procedure of this mini-hearing is not wholly dissimilar from that of qualifying an expert before they are allowed to give testimony. The Court may also reserve judgment until the plaintiff rests. Defense counsel should also revisit the issue as part of a motion for directed verdict at the completion of the plaintiff’s case in chief.
Counsel for the plaintiff must be prepared to address these issues prior to the hearing. You should not assume jurisdiction and must avoid being caught off guard. Both parties should advise their clients as to possible jurisdictional issues and prepare them for such issues during trial preparation.
Although the feasibility of entry into civil restraints is often a consideration for both sides, there remain unanswered questions regarding whether such negotiations are appropriate in these types of cases, where there is likely no “FM” docket number to attach such restraints to. In practice, most practitioners will find the acceptability of civil restraints in such instances will depend on the judge you are appearing before, but practitioners should be mindful of certain restrictions.
As this area of the law’s consistent evolution demonstrates, a diligent practitioner should not assume a former household member always qualifies as a victim under the Prevention of Domestic Violence Act. Both parties should be prepared, and prepare their clients, for the types of questions that might be asked at a preliminary hearing addressing the Coleman factors. It should be noted that the factors allow for both sides to make compelling argument. Raising the issue protects the matter for a possible appeal. As the law is always changing, we like doctors must start with the “horses,” but never foreclose the possibility of “zebras.”