Under N.J.S.A. 2C:58-3(c):

No handgun purchase permit or firearms purchaser identification card shall be issued:
(1) To any person who has been convicted of any crime, or a disorderly persons offense involving an act of domestic violence as defined in section 3 of P.L.1991, c.261 (C.2C:25-19), whether or not armed with or possessing a weapon at the time of such offense . . . .

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

No handgun purchase permit or firearms purchaser identification card shall be issued to any person who has been convicted of any crime, or a disorderly persons offense involving an act of domestic violence originally appeared on NJ Family Issues on February 7, 2012.

Notice is a basic procedural necessity to ensure that a party’s due process rights are enforced. Mettinger v. Globe Slicing Mach. Co., 153 N.J. 371, 389 (1998) (citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 656-57, 94 L. Ed. 865, 873 (1950)). “‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’” O’Connor v. Altus, 67 N.J. 106, 126 (1975) (quoting Mullane, supra, 339 U.S. at 314, 70 S. Ct. at 657, 94 L. Ed. at 873); Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003) (quoting Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 97 (App. Div. 1998), certif. denied, Davis v. Surrey Downs/Fidoreo, Inc., 158 N.J. 686 (1999)), certif. denied, 179 N.J. 309 (2004).

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections originally appeared on NJ Family Issues on February 7, 2012.

N.J.S.A. 2C:12-10(a)(1) defines a “course of conduct” necessary to constitute “stalking” to include, among other things, “directly, indirectly, or . . . by any action, method or device, or means, following, monitoring, observing, surveilling . . . a person[.]”

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

A course of conduct necessary to constitute stalking includes, among other things, directly, indirectly, or by any action, method or device, or means, following, monitoring, observing, surveilling a person originally appeared on NJ Family Issues on February 6, 2012.

Ordinary due process protections apply in the domestic violence context. H.E.S. v. J.C.S., 175 N.J. 309, 321-23 (2003). “At a minimum, due process requires that a party in a judicial hearing receive ‘notice defining the issues and an adequate opportunity to prepare and respond.’” Ibid. (quoting McKeown Brand v. Trumph Castle Hotel and Casino, 132 N.J. 546, 559 (1993)). In L.D. v. W.D., 327 N.J. Super. 1, 4 (App. Div. 1999), we explained that “it is clearly improper to base a finding of domestic violence upon acts or a course of conduct not even mentioned in the complaint.”

However, in J.D. v. M.D.F., 207 N.J. 458, 479-80 (2011), the Supreme Court observed:

Plaintiffs seeking protection under the [PDVA] often file complaints that reveal limited information about the prior history between the parties, only to expand upon that history of prior disputes when appearing in open court. And it is frequently the case that the trial court will attempt to illicit a fuller picture of the circumstances either to comply with the statutory command to consider the previous history, if any, of domestic violence, see N.J.S.A. 2C:25-29(a)(1) or to be certain of the relevant facts that may give content to otherwise ambiguous communication or behavior . . . ensuring that defendants are not deprived of their due process rights requires the trial courts to recognize both what those rights are and how they can be protected consistent with the protected goals of the act. To begin with, trial courts should use the allegations set forth in the complaint to guide their questions of plaintiffs, avoiding the sort of questions that induce plaintiff in this appeal to abandon the history revealed in the complaint in favor of entirely new accusations. That does not mean that trial courts must limit plaintiffs to the precise prior history revealed in the complaint, because the testimony might reveal that there are additional prior events that are significant to the court’s evaluation, particularly if the events are ambiguous. Rather, the court must recognize that if it allows that history to be expanded, it has permitted an amendment to the complaint and must proceed accordingly.

The Court added that some defendants know the history that the plaintiff recites and some parties will be well prepared regardless of whether the testimony technically expands upon the allegations of the complaint. Id. at 480. Some others will not and, “[i]n all cases the trial court must ensure that the defendant is afforded an adequate opportunity to be apprised of those allegations and to prepare.” Ibid.

J.D. teaches that if the trial court permits a plaintiff to amend a complaint, the court should also liberally grant adjournments requested by the defense in order to meet those allegations.

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

It is clearly improper to base a finding of domestic violence upon acts or a course of conduct not even mentioned in the complaint originally appeared on NJ Family Issues on February 6, 2012.

Although the PDVA does not define “household member,” several cases had addressed the meaning of this term. In South v. North, 304 N.J. Super. 104, 116 (Ch. Div. 1997), the father of the plaintiff’s grandson was considered a household member. The plaintiff lived with her adult daughter and grandson; the father of the child and the daughter were engaged. Id. at 107. In Storch v. Sauerhoff, 334 N.J. Super. 226, 233, 235 (Ch. Div. 2000), a stepchild and stepfather, who lived on the same block were considered household members, even though they had not resided in the same house for nineteen years. In Hamilton v. Ali, 350 N.J. Super. 479, 480 (Ch. Div. 2001), college students living in a nine-person dormitory suite were considered household members. The court noted that sharing four bedrooms, a bathroom, and a common area constituted a “family-like setting.” Id. at 486.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Who is a household member originally appeared on NJ Family Issues on February 2, 2012.

Under the Prevention of Domestic Violence Act, “acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse and in light of whether immediate danger to the person or property is present. N.J.S.A. 2C:25-29a(1) and (2).” Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). Therefore, the commission of one of the predicate acts of domestic violence set forth in N.J.S.A. 2C:25-19(a) does not “automatically mandate[] the issuance of a domestic violence restraining order.” Silver v. Silver, 387 N.J. Super. 112, 123 (App. Div. 2006) (quoting Kamen v. Eagen, 322 N.J. Super. 222, 227 (App. Div. 1999)). Rather, the court must make a discretionary determination based on the predicate act of domestic violence, any prior history of domestic violence, and any other relevant circumstances, as to “whether a domestic violence restraining order is necessary to protect plaintiff from immediate danger or further acts of domestic violence.” Id. at 128.

Appellate review of such a determination is limited to deciding whether it constituted an abuse of discretion. Cesare v. Cesare, 154 N.J. 394, 416 (1998).

NOTE: My legal and mediation services are offered to clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

The court must make a discretionary determination based on the predicate act of domestic violence, any prior history of domestic violence, and any other relevant circumstances, as to “whether a domestic violence restraining order is necessary to protect plaintiff from immediate danger or further acts of domestic violence originally appeared on NJ Family Issues on January 30, 2012.

N.J.S.A. 2C:33-4(a) provides, in pertinent part:

[a] person commits a petty disorderly persons offense if, with purpose to harass another, he
a. Makes or causes to be made, a communication or communications anonymously or at extremely inconvenient hours or in offensively coarse language, or any other manner likely to cause annoyance or alarm[.]

The statute requires proof of a “purpose to harass”.

Our Supreme Court recently stated that a trial court must exercise care in distinguishing between ordinary disputes and irritations common in a domestic relationship and those actions that cross the line into domestic violence. J.D. v. M.D.F., 207 N.J. 458, 475-76 (2011). In that case, the defendant passed the plaintiff’s home in the early morning with a purpose to document her cohabitation with another man, which the defendant intended to support an effort to secure custody of the parties’ children. The Court concluded that the defendant’s actions did not constitute harassment.

Similarly, in L.M.F. v. J.A.F., 421 N.J. Super. 523 (App. Div. 2011), the court reversed a finding of harassment when the trial court failed to find that the defendant’s former spouse had a purpose to harass. Id. at 534-36. He repeatedly sent text messages to his former wife in order to obtain information about their daughter’s welfare and academic performance. Ibid.

NOTE: My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.

A trial court must exercise care in distinguishing between ordinary disputes and irritations common in a domestic relationship and those actions that cross the line into domestic violence originally appeared on NJ Family Issues on January 30, 2012.

The Government’s attachment of the GPS device to a vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted.

This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360.

The Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165, 176; Soldal v. Cook County, 506 U. S. 56, 64. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705 — post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring — do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position.

The Government’s alternative argument — that if the attachment and use of the device was a search, it was a reasonable one — was forfeited because it was not raised below.

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

The Government’s attachment of the GPS device to a vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment originally appeared on NJ Family Issues on January 23, 2012.

The Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, lists the types of relief the court may include in a final restraining order, N.J.S.A. 2C:25-29b. As to barring a defendant from places, the statute provides that a defendant may be restrained:

from entering the residence, property, school, or place of employment of the victim or of other family or household members of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim or other family or household members.

[N.J.S.A. 2C:25-29b(6).]

In Finamore v. Aronson, supra, 382 N.J. Super. at 520, we stated that “[t]he specific relief[] necessary to protect the victim must be distinctly described in the final restraining order.”

To establish a disorderly persons contempt of court, the State was required to prove that defendant “knowingly” violated the restraining order. N.J.S.A. 2C:29-9b; see State v. L.C., 283 N.J. Super. 441, 447 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996).

The evidence must allow at least a reasonable inference that a defendant charged with violating a restraining order knew his conduct would bring about a prohibited result. See N.J.S.A. 2C:2-2b(2); ^[1] cf. State v. Breakiron, 108 N.J. 591, 605-06 (1987) (inferences drawn from evidence to prove knowledge element in homicide prosecution); State v. Moore, 330 N.J. Super. 535, 544 (App. Div.) (inference permissible that the defendant knew car in which he was riding was being driven without consent of the owner), certif. denied, 165 N.J. 531 (2000).

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

1. N.J.S.A. 2C:2-2b(2) states in part: “A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence.”

To establish a disorderly persons contempt of court, the State was required to prove that defendant knowingly violated the restraining order originally appeared on NJ Family Issues on January 23, 2012.

Under N.J.S.A. 2C:25-29d, a final domestic violence restraining order may be dissolved or modified upon “good cause shown” and only if the same judge who entered the order considers the application or a complete record of the hearing on which the order was based is made available to the court. In Kanaszka v. Kunen, 313 N.J. Super. 600, 606-07 (App. Div. 1998), we stated that a transcript of the prior proceeding must be provided on a motion heard by a different judge from the one who entered the order, and it is advisable to provide a transcript in all cases.

When a transcript cannot be produced through no fault of the defendant, due process still requires that the court consider the merits of the motion.

In Kanaszka, supra, 313 N.J. Super. at 607, the court expressed accord with the analysis set forth in Carfagno v. Carfagno, 288 N.J. Super. 424, (Ch. Div. 1995), addressing the merits of a motion to dissolve a restraining order. The court in Carfagno listed the following relevant factors:
(1) whether the victim consents to lifting the order;
(2) the victim’s fear of the defendant, viewed objectively;
(3) the nature of the current relationship between the parties;
(4) any contempt convictions for violations of the order;
(5) alcohol or drug involvement;
(6) evidence of other acts of violence by the defendant against the victim or others;
(7) the defendant’s participation in domestic violence counseling;
(8) the age and health of the defendant;
(9) the good faith of the victim in opposing the motion;
(10) any orders of protection for the victim entered in another jurisdiction; and
(11) any other factors that may be relevant to a showing of good cause to dissolve or modify the order.
Id. at 434-35.

In Kanaszka, supra, 313 N.J. Super. at 608, the court held that a plenary hearing is not required for every motion to dissolve a restraining order. In the absence of a specific request, the court conclude that the Family Part did not commit plain error in relying on the parties’ written submissions and the arguments of counsel.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

A final domestic violence restraining order may be dissolved or modified upon good cause shown and only if the same judge who entered the order considers the application or a complete record of the hearing on which the order was based is made available to the court originally appeared on NJ Family Issues on January 8, 2012.