Defending Against False Domestic Violence Charges
Domestic violence is a serious problem not only in New Jersey but also around the country. While most claims of domestic violence are genuine, there are also plenty of false domestic violence charges, and the consequences are devastating. Loss of child custody, financial problems, and even jail time may be imposed if a person is found to have committed domestic violence, so adequately defending against the charges is crucial.Domestic Violence – New Jersey Statutory Definition
The New Jersey Prevention of Domestic Violence Act defines "domestic violence" as the occurrence of certain violent acts inflicted upon a person protected under this act by an adult or an emancipated minor. The violent acts included in the domestic violence definition include assault, harassment, burglary, stalking, sexual assault, kidnapping, homicide, and more.Temporary Restraining Orders – Domestic Violence
Domestic violence charges usually come to the attention of the person accused of domestic violence when they are served with a temporary restraining order (TRO). A TRO is obtained through an “ex parte” court proceeding, which means that the person the TRO is obtained against does not attend and usually does not know about. A TRO may prevent a defendant from returning to his or her home, as well as stay away from the plaintiff. A TRO requires a final hearing with both the plaintiff and defendant within 10 days after the TRO was granted.
A person who is falsely accused of domestic violence may seek to have the TRO dissolved by appealing the TRO and having a hearing in front of a judge. This may be a good option for some defendants who can easily prove that the domestic violence did not happen.Domestic Violence Jurisdiction
In many cases false domestic violence charges are more difficult to prove, and the defendant may consider questioning if the alleged charges qualify as “domestic violence” under the statute. The New Jersey statute defines a victim of domestic violence as any person who fits one of three situations:
- Spousal or Household Member Domestic Violence
A person who is 18 years of age or older (or an emancipated minor) and who has been subjected to domestic violence by a spouse, former spouse, or a person who is a current or former household member.
- Child In Common Domestic Violence
A person, regardless of age, has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant.
- Dating Relationship Domestic Violence
A person has been subjected to domestic violence by a person with whom the victim has had a dating relationship.
The cases of spousal relationships and children in common are relatively easy to determine, but there may be a question of whether the dating or household member relationship applies. If a defendant can show that the charges alleged do not meet the definition of domestic violence in the statute, the TRO can be dismissed.Final Hearing
If the TRO has not been dismissed within the 10 day period after it was granted, the parties will have a hearing to determine whether a final restraining order (FRO) will be granted. There, the plaintiff must prove that the defendant committed the act of violence that he or she alleged. The defendant can offer evidence that the violence did not occur, including phone records, photographs, evidence of filing previous false charges, and witnesses. A defendant can also claim self defense if he or she had to use “reasonable force” to defend against the plaintiff if he or she attacked the defendant.
If you have been falsely charged with domestic violence call the Law Offices of Peter Van Aulen at (201) 845-7400 for a free 30 minute in office consultation.Sources
N.J.S.A. 2C:25-19 – New Jersey Code of Criminal Justice - Prevention of Domestic Violence Act of 1991 - Definitions