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Seaside Heights Divorce Attorney- Reasonable Delays for a Domestic Violence Hearing

Posted by Vincent Deluca | Jan 26, 2020 | 0 Comments

A domestic violence hearing is a juggling act between the victim's right to immediate protection, and the alleged attacker's right to be heard in a meaningful manner.  New Jersey laws require that a hearing for a final restraining order (FRO) be granted within 10 days after the filing of the complaint, during which time the plaintiff is granted a temporary restraining order (TRO).  However, the defendant must be given fair notice, and the opportunity to be represented by an attorney.  To this end, there may be reasons to adjourn a hearing if either the plaintiff or defendant has a legitimate excuse such as a medical or family emergency.  

What happens, though, when a defendant request multiple adjournments in a row?  Should this be seen as an attempt to manipulate the system and exert control over the victim?  Even if the adjournment requests do not seem to be made in bad faith, is it fair to make the victim wait for several weeks or months for an FRO hearing?  These questions were addressed in the recent ruling of J.D. v. M.D.F., which was decided by the Appellate Division on July 25, 2017.  The case involved a woman who had filed a domestic violence complaint on March 15, 2016, based on allegations that her boyfriend had choked her during a party at their apartment.  An FRO hearing was scheduled for March 24, but the defendant appeared in court the next day to request an appeal of the TRO in order to retrieve his belongings.  The judge agreed to hold a hearing on this issue the following day (March 17), but the defendant advised that he had only been served with the TRO the previous day, and needed time to hire an attorney.

The defendant further asked for more time due to a medical condition, which along with the court's schedule, caused the hearing to be pushed to April 7.  Further delays resulted due to his attorney's municipal court cases, which seemed to have gotten more complicated than expected.  On the day of the hearing, the attorney continued to request a delay, even sending a letter to ask if they could hold off the proceeding for a little longer since he was on his way.  The judge went ahead and held the hearing anyway, resulting in a final restraining order being entered against the defendant.

The appeals court remanded the case back to the trial court, stating that the defendant's due process rights, including the right to counsel and meaningful notice had been violated.  While an FRO hearing should be held within 10 days, legitimate adjournments such as the ones requested by the defendant and his attorney should not have been automatically rejected since the judge had the discretion to continue the TRO during the adjournment period.  With this decision, the Appellate Division struck a fair and sensible balance between the rights of all parties involved in a domestic violence action, while continuing to extend legal protection for the victim.

About the Author

Vincent Deluca

A founding member of Villani & DeLuca and has devotes the entirety of his practice to family law. Mr. DeLuca Esq. is a trained divorce mediator and collaborative divorce attorney

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Vincent DeLuca, Esq.

As a founding partner at Villani & DeLuca, Vincent DeLuca is one of only a few Certified Matrimonial Law Attorney in Ocean County, New Jersey. Mr. DeLuca has helped many clients navigate the delicate details of their own divorce. Mr. DeLuca is also a trained divorce mediator and collaborative divorce attorney. Call today at (732) 965-3404 to speak to Mr. DeLuca or one of our experienced NJ Divorce Lawyers.

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