NJ Restraining Order Ruling Will Curb False Claims

By Michael McCormick and Glenn Sacks

Mary Ellen Schoonmaker’s recent column “I’m sure you didn’t intend to hurt her” (7/17/08) criticizes a controversial new New Jersey court ruling which raises the burden of proof for domestic violence restraining orders. Schoonmaker says the ruling will cost abused women “time…that could save lives” and laments “Anyone who thought New Jersey’s progress in protecting women against domestic violence was safe should think again.”

Schoonmaker is correct to be concerned about protecting abused women, but she misunderstands certain aspects of the restraining order issue.

Under current law, it is very easy for a woman (or sometimes a man) to allege domestic violence and get a restraining order. The standard is “preponderance of the evidence” (often conceptualized as 51%–49%), and judges almost always side with the accusing plaintiff.

Under New Jersey’s Domestic Violence Prevention Act, the accuser need not even claim actual abuse. Alleged verbal threats of violence are sufficient, even though it’s almost impossible for the accused to provide substantive contradictory evidence.

The order boots the man out of his own home and generally prohibits him from contacting his own children. In recognition of the gravity of these orders, the new decision holds the current standard of proof unconstitutional and requires the stricter “clear and convincing evidence” standard.

To Schoonmaker’s credit, unlike many advocates of easy access to restraining orders, she does recognize that the orders are sometimes misused. There is a large body of evidence to support this contention.

For example, the Family Law News, the official publication of the State Bar of California Family Law Section, recently explained:

“Protective orders are increasingly being used in family law cases to help one side jockey for an advantage in child custody…[they are] almost routinely issued by the court in family law proceedings even when there is relatively meager evidence and usually without notice to the restrained person….it is troubling that they appear to be sought more and more frequently for retaliation and litigation purposes.”

An article in the November, 2007 issue of the Illinois Bar Journal explains:

“If a parent is willing to abuse the system, it is unlikely the trial court could discover (his or her) improper motives in an Order of Protection hearing.”

These orders have become so commonplace that the Illinois Bar Journal calls them “part of the gamesmanship of divorce.”

The orders are sometimes ludicrously easy to get. For example, in 2006 a New Mexico woman even got one against New York TV host David Letterman. She claimed he was inflicting “mental cruelty” and “sleep deprivation” on her—via his TV broadcasts from 3,000 miles away! Typifying many, the Letterman judge explained, “If [applicants] make a proper pleading, then I grant it,” as if what matters is not the accused’s guilt or innocence, but instead whether the accuser knows how to fill out a form properly.

Family law attorney Bruce Pitman, who often litigates domestic violence restraining order cases in Bergen County, says:

“Anybody who practices family law sees people who abuse the restraining order process. Some create false allegations or take minor or insignificant acts and use them to remove their spouse or partner from the home for advantage in litigation. Such abuses undermine victims of real abuse and violence who seek protection.”

Schoonmaker cites the 1991 Kathleen Quagliani case as an example of a woman who could have been saved. Just a few weeks before New Jersey passed the DVPA making it easier to obtain restraining orders, Quagliani had been denied a proper order. A week later Quagliani was murdered by her husband. But would a restraining order have really saved her life?

A restraining order is only enforceable against a law–abiding man—a violent spouse intent on killing his ex is not going to obey it. Quagliani’s husband beat her to death with a baseball bat in front of their child—would he really have been deterred from doing so out of fear of violating his restraining order?

Restraining orders have become a weapon used for advantage in divorce and child custody litigation, effectively giving women the right to banish men from their homes and their children whenever they see fit. It is entirely appropriate that New Jersey require substantive evidence of abuse before granting them.