Important, Good New Jersey Decision on Restraining Orders

Jersey City, NJ–A single justice of the Superior Court of New Jersey has ruled that a key element of the New Jersey Domestic Violence Act (DVA) is unconstitutional.

In law, lives are shattered or saved based on the meanings of words. In this case, the difference between “preponderance of the evidence’ and “clear and convincing evidence’ may determine whether Mr. Anibal Crespo of New Jersey gets to live a normal life or instead permanently loses his home and his relationship with his children.

Mr. Crespo, in a typical restraining order proceeding, was kicked out of his home and largely separated from his children in a typical “he said, she said’ dispute concerning alleged domestic violence. The court, as it almost always does, issued the restraining order and made it final based on “a preponderance of the evidence.’ But another judge has now found that the proper legal standard of proof should have been “clear and convincing evidence.’

“Preponderance of the evidence’ simply means that the matter seems more likely than not, 51 percent to 49 percent. Under this standard of proof, almost any “he said, she said’ situation will be decided in favor of the plaintiff, unless the complaint is obviously fraudulent or is off-the-wall. In fact, under the “preponderance of the evidence’ standard, even off-the-wall complaints often result in restraining orders. For instance, remember the lady in New Mexico who successfully obtained a restraining order against television late show host David Letterman in New York because his shows allegedly contained coded messages that harassed her.

Under a standard that would demand “clear and convincing evidence,’ the complainant has a higher hill to climb to prove her case. This is as it should be, at least in cases in which the two parties share a home, assets or children.

In arguing for the higher standard of proof, the New Jersey Supreme Court relied on the Due Process Clause of the 14th Amendment, a United States Supreme Court decision in Mathews v. Eldridge, 424 U.S. 319, 335, 96, S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976), and a New Jersey Supreme Court decision In re Polk License Revocation, 90 N.J. 550, 562 (1982).

The Superior Court also found that the DVA was unconstitutional in that it dictates numerous details about how the courts will operate. The decision pointed especially to the requirement that the restraining order hearing occur within ten days. The court pointed out that it is unconstitutional for the legislature to tell the courts how to operate.

The difference between “preponderance of the evidence’ and “clear and convincing evidence’ may seem like just so many words, like Twiddle Dum versus Twiddle Dee, but actually have the potential to make a big difference. Whether or not they do make a big difference will depend on subsequent actions of the courts. This ruling, unfortunately, is not binding on any court in New Jersey or elsewhere.

Who was the true aggressor in whatever happened between Anibal and Vivian Crespo? So often in such cases, the law ignores evidence that the woman was the true aggressor. Although the present ruling does not attempt to review what actually happened, a June 24 article in the N.J. Law Journal suggests that Vivian could be at fault. The article states that her arms were injured when he caused her arms to be trapped “in the electric windows of his car when she tried to talk to him about unpaid child support.’  To be trapped in the windows of his car, her arms had to be extended into his car. If this report is accurate, she almost certainly had to be the one initiating physical contact, and he may well have been trying to get her to remove her arms from his personal space, and/or to protect himself from her. Other interpretations are also possible, and further information must be awaited as this case gains public attention.

Of course, the decision also contained many elements which we do not like. It is in the nature of courts that they usually move cautiously, one step at a time. This decision is a step in the right decision, even if it is far from perfect.

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