Guide to "Family Law" in New Jersey

Paul G. Kostro, Esq.

 

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Who is a Perpetrator of Domestic Violence?

  1. In a Domestic Violence matter, the Trial Judge must make a finding of guilt (or lack of proof thereof) under the criminal laws, albeit by a civil preponderance standard. Cesare v. Cesare, 302 N.J. Super. 57, 66-67 (App. Div. 1997), rev'd on other grounds, 154 N.J. 394, 400-01 (1998).

    If the Defendant is accused of reckless conduct, in deciding whether the defendant had acted recklessly, the correct source for a definition of "recklessly" is found in N.J.S.A. 2C:2-2b(3).

    See Pamula v. Torelli, Appellate Division, Docket No. A-6567-03T2, Decided October 12, 2005, Unpublished.


  2. Law Lessons from Stinson v. Stinson (App. Div.; Docket No. A-1946-04T1; Decided October 20, 2005, Unpublished):

    It constitutes a fundamental violation of due process to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint. J.F. v. B.K., 308 N.J. Super. 387 (App. Div. 1998).

    However, Domestic violence is a term of art which describes a pattern of abusive and controlling behavior which injures its victim. Bittner v. Harleysville Insurance Co., 338 N.J. Super. 447, 454 (App. Div. 2001) (quoting Corrente v. Corrente, 281 N.J. Super. 243, 246 (App. Div. 1995)). Accordingly, in determining whether an act of domestic violence has been committed, the court shall include in its consideration whether there has been any previous history of domestic violence between the parties, N.J.S.A. 2C:25-29a(1), whether any immediate danger to the victim exists, N.J.S.A. 2C:25-29a(2), and what is in the best interests of the victim, N.J.S.A. 2C:25-29a(4). Bittner v. Harleysville Insurance Co., 338 N.J. Super. 447, 454 (App. Div. 2001). N.J.S.A. 2C:25-29(a) does not mandate that a trial court incorporate all of those factors, . . . however, the Act does require that acts claimed by a plaintiff to be domestic violence . . . be evaluated in light of the previous history of violence between the parties. Cesare v. Cesare, 154 N.J. 394, 401-02 (1998) (quoting Peranio v. Peranio, 280 N.J. Super. 47, 54, (App. Div. 1995); accord Corrente, 281 N.J. Super. at 248).

    Thus, it is appropriate for the court to find that an act of domestic violence had occurred solely on the testimony concerning the complaint before the court; and to also allow testimony relating to prior incidents that corroborated this decision.


  3. Law Lessons from CONTURSO v. CONTURSO (App. Div., A-3929-04T5, March 24, 2006, not approved for publication): Under N.J.S.A. 2C:12-3(a) [terroristic threat], "[a] person is guilty of a crime of the third degree if he threatens [threat to shoot the wife if she sought custody of the parties’ daughter] to commit any crime of violence with the purpose of terrorizing another."


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