Trenton, NJ–We’ve discussed on many occasions the massive violations of men’s and fathers’ rights that occur under the guise of fighting domestic violence. Nowhere is this more true than with restraining orders–all a woman has to do is tell a court that her husband “threatened her” or she is “in fear of him” and the court orders a restraining order booting the man out of his own home and prohibiting him from contacting his own kids.
A new New Jersey court decision is a step forward in curbing these abuses–a justice of the Superior Court of New Jersey has ruled that a key element of the New Jersey Domestic Violence Act (DVA) is unconstitutional. David Heleniak, Esq. is the attorney who represented the victorious husband in the case.
There is now a blowback against the ruling from domestic violence groups and the New Jersey Attorney General. From Restraining order picture clouded (Associated Press , 7/11/08):
Women’s rights groups and the state Attorney General’s Office are preparing to challenge a judge’s ruling that determined it’s too easy to get a restraining order in New Jersey.
The decision is not binding on any other state judge and appears headed for an ultimate ruling by the New Jersey Supreme Court. That showdown could be many months away, and the outcome could have broad impact.
Although the numbers have declined over the past five years, about 40,000 domestic violence complaints are filed annually in New Jersey. From those, roughly 30,000 temporary restraining orders are issued, with most of the rest withdrawn by the accuser. Nearly 80 percent of the complaints are filed by women.
The recent ruling by a Hudson County judge, however, threatens to make it more difficult for victims to prove they have been beaten or threatened and could scuttle the state’s Prevention of Domestic Violence Act.
State Superior Court Judge Francis B. Schultz found that some elements of the 17-year-old law are unconstitutional. Among them: a low threshold of evidence — just a “preponderance” — to get a restraining order violates due process protections. Instead, judges need “clear and convincing” evidence to issue a restraining order, Schultz said…
“If it’s allowed to stand, it certainly would be a significant problem for victims of domestic violence,” said Sandy Clark, associate director of the New Jersey Coalition for Battered Women.
“They are typically the only witnesses to the abuse. So to have to show by clear and convincing standard would certainly be challenging,” Clark said.
She considers New Jersey’s law among the best in the country, since it provides restraining orders of indefinite length, along with mandatory training for police and judges. Other states have tougher standards to obtain restraining orders, she said.
Prosecutors are also alarmed at what would happen if the ruling stands.
“You’re going to have a chilling effect. That’s the bottom line,” said Deputy Chief Assistant Essex County Prosecutor Debra Cannella, who led the office’s domestic violence unit for 11 years.
“We’re very concerned about this because elevating the standard of proof will make it more difficult for victims of domestic violence who desperately need relief,” Cannella said. “The next time that victim is assaulted, they may not come back to court because there were rebuffed.”
On the other side of the debate are groups that include fathers who maintain the domestic violence law has been unfairly used against them in divorce proceedings.
Michael Argen, president of the New Jersey Council for Children’s Rights, said that a parent will not get custody of children once a restraining order is issued.
“If this ruling continues, it would help truly battered people more, because it would limit the resources that are being used on truly frivolous cases,” Argen said…
Although the domestic violence law had been upheld on several occasions since its enactment, Schultz, who sits in Jersey City, decided that the constitutional issues raised by a divorced husband, Anibal Crespo, merited examination.
Anibal and Vivian Crespo divorced in 2001 after about 17 years of marriage, but lived in the same two-family home in North Bergen: She was on the first floor with the children; he was on the second floor with his parents.
In 2004, Vivian Crespo obtained a final restraining order from a different judge after claiming that her former husband hit her face and pulled her arms when she sought the child support money. Anibal Crespo responded that his ex-wife attacked him while he was in his car and any injury she suffered came when he closed the car window to protect himself. As a result of the restraining order, Anibal Crespo had to move.
Schultz vacated the final restraining order but kept its conditions in place pending a hearing at which the original judge is to decide whether to restore the restraint. Schultz left it for that judge to determine whether to use the preponderance standard or the “clear and convincing” threshold of evidence.
Read the full article here.