Final Restraining Orders and Adverse Inferences (Part 3)

by Fred Sisto | Jan 9, 2025 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

The Appellate Division concluded with the following in relevant part: The State of New Jersey Domestic Violence Procedures Manual issued under the authority of the Supreme Court and the Attorney General acknowledges courts are permitted to “proceed with the FRO hearing and may enter an FRO without an appearance by the defendant.” State of N.J. Domestic Violence Procedures Manual, Defendant (non-appearance) at 54 (2022).

We are mindful of the New Jersey Legislature’s long-standing support for victims of domestic violence. See Brennan v. Orban (1996) (“We believe there is no such thing as an act of domestic violence that is not serious. Every action of recent Legislatures has been intended to underscore the serious nature of the domestic violence problem in our society.”); State v. Kelly (1984). Nothing in our conclusion today impacts a domestic violence victim’s ability or statutory right to obtain an FRO in the absence of a defendant’s testimony, and accords with the Legislature’s laudable broad, remedial purpose in enacting the statute. Moreover, our holding does not prevent a trial court in an FRO hearing from noting the plaintiff’s testimony is uncontroverted when assessing plaintiff’s credibility.

The matter is reversed and remanded for a new FRO hearing in conformity with this opinion. Because the judge who heard the matter has already engaged in weighing some of the evidence, the hearing shall take place before a different judge. See N.J. Div. of Youth & Family Servs. v. A.W. (1986); see also Freedman v. Freedman (App. Div. 2023) (first citing J.L. v. J.F. (App. Div. 1999); and then citing P.T. v. M.S., (App. Div. 1999)).

The FRO dated July 12, 2023 is vacated and the amended TRO dated July 10, 2023 is reinstated pending a new FRO hearing. We take no position regarding the outcome of the FRO hearing.

The trial court’s decision is reversed and the case is remanded. We do not retain jurisdiction.

In holding that a trial court can base its decision, at least in part, on the plaintiff’s testimony being uncontroverted, the Appellate Division demonstrates how a defendant’s decision not to testify can still work against him or her. There is little practical difference between noting the plaintiff’s “uncontroverted” testimony and drawing a negative inference from the defendant’s decision to not testify.

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