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AOC Adopts Plan for Uniformity in Court Handling of Domestic Violence |
By Tim O'Brien
New Jersey Law Journal, April 3, 2000
One of a judge's toughest calls is deciding when to remove from the home a husband accused of domestic violence. The system for protecting victims is far from perfect, varying widely from judge to judge, town to town, and county to county. Not surprisingly, judges are often second-guessed and reversed.
Now, the Administrative Office of the Courts, armed with federal funds; is doing something about that. The AOC has enlisted Superior Court Judge Graham Ross; the presiding Family Part judge for Somerset, Hunterdon and Warren counties, to spend the next 12 months visiting every county to bring consistency to the machinery that deals with domestic violence.
Ross will review the flow of cases from the complaint through the initial ex parte hearing for a temporary restraining, order, and then through the hearing before a Superior Court judge for a final restraint.
"I'm going to go to every county, not to be critical or to be a bean counter, but to seek uniformity," says Ross, the presiding Family Part judge in Vicinage 13 for 11 years.
Ross says he will observe everything, including: the intake process; police procedure; the handling of 911 calls; the handling of the forms filled out by victims; initial hearings conducted by hearing officers; the size, competency, training and adequacy of staff; the physical waiting facilities; and, of course, the Superior Court hearing to determine whether the temporary restraining order will become final.
Ross will spend two to three days a week on his county rounds, aided by AOC Administrative Specialist Krista Kelly, who just resigned as a domestic violence counselor with the Camden County Prosecutor's Office and who previously was a legal advocate in the court system for a Burlington County women's shelter.
The creation of this review program, the latest of many such court endeavors to improve the system by developing guide, lines and manuals for judges and staff, is driven by several factors. First, the Appellate Division has reversed a fair number of domestic violence decisions, and some of those reversals have showcased the inconsistencies.
"I'm impressed with this move, in part because there have been too many cases in the Appellate Division, and many appellate reversals." says Gary Skoloff, a partner with Livingston's Skoloff & Wolfe and longtime editor-in-chief of the American Bar Association's Family Law Magazine.
Second, the state has been pushing toward a statewide uniform court system since the constitutional amendment approved in 1995 that shifted the cost of court staff from the counties to the state. "Now that all those county employees became state employees, the obligation for more efficiency and uniformity, and of having the same quality and style of justice in. all counties, is important to achieve," says John McCarthy, director of the AOC's Office of Trial Court Services.
Third, legislators are pressing for domestic violence reforms, based on recommendations of the 1998 Task Force on Domestic Violence. Fourteen bills .have been introduced; four of those have been signed by the governor.
One of the new laws requires all family law judges to undergo domestic violence training annually, rather than biannually, as has been the case. Ross says a training conference is tentatively set for sometime this fall. Another requires that any defendant hit with a final restraining order in family court be fingerprinted and photographed, even if no criminal complaint has been made. The other two laws strengthen training for the police and provide enforcement of orders that domestic violence defendants undergo counseling.
The project Ross is heading is being funded by a grant from the federal Violence Against Women's Act through the state Attorney General's Office.
Bar Supports Move
Mark Biel, chairman of the State Bar Association's Family Law Section, applauds the AOC's action and agrees there are many inconsistencies among judges in deciding domestic violence complaints Biel, a name partner with the Atlantic City firm of Mairone, Biel, Zlotnick & Feinberg, says that in spite of recent case law, disparities remain among judges.
He refers to a pair of Appellate Division rulings written by Virginia Long, who last year was elevated to the state Supreme Court.
In Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995), Long's panel reversed a judge's restraining order, ruling that domestic violence orders should be issued only after an evaluation of a couple's history. Long wrote, "The domestic violence law was intended to address matters of consequence, not ordinary domestic contretemps such as this.
In Peranio v. Peranio, 280 N.J. Super. 47 (App. Div. 1995), Long's panel reversed another lower court judge who granted a final restraining order to a separated wife because her husband told her, after discovering she had disposed of some of his property, "I'll bury you." Long wrote that such a single statement did not constitute harassment under the Prevention of Domestic Violence Act; repeated acts of alarming conduct were required for a final restraint.
Biel says he believes that notwithstanding Peranio and Corrente, too many judges continue to lean toward the victim at the final hearing. "I can't recall a case that was ever reversed in which the trial judge denies a final restraint, says Biel.
Others point to the Appellate Division's rebuke this past January of Superior Court Judge James Citta in Ocean County. A unanimous appeals panel, in L.D. v. W.D. Jr., A-3274-98T1, found that Citta had improperly extracted testimony from the wife to buttress a complaint that on its face did not charge alarming or harassing conduct. "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 ... which are not even alleged in the complaint," wrote Judge James Ciancia.
Linda Piff, who represented the husband in L.D. and had his final restraining order reversed, says that the inconsistencies among judges often deal with the harassment charges. Piff, a Wall Township solo practitioner, says she sees a difference between domestic violence rulings on final restraining orders between Ocean and Monmouth counties.
Woodbridge solo practitioner John Paone Jr. notes that the harassment provision, as a cause of action, was not in the original domestic violence act but added later. He suggests that Ross' project could lead to a modification of the law, and he points out the difficulty of gaining uniformity in domestic violence cases, they are so fact- and case-specific that it will not be easy to develop guidelines," says Paone.
To be sure, though, with the constantly high numbers of domestic violence charges filed - Paone says the AOC reports 55,000 complaints annually - Ross' mission will be watched closely by the family bar. Paone says one of the biggest complaints among the family bar is the misuse of domestic violence complaints by spouses "to gain or to get a leg up on the divorce."
Ross says he fully appreciates the opinions of some, including fathers' rights groups, who believe the system is manipulated, but is quick to add that "the system is victim-driven" under the law. The victim is a women in 84 percent to 95 percent of the cases, depending on which set of statistics are used, he says.
He explains that a TRO is almost always granted by a hearing officer on an ex parte basis as a protection to the victim, who need not tell her or his batterer that a complaint was made.
Ross emphasizes that the AOC's goal in his yearlong visits is to examine every aspect of the process, including whether interpreters are available for languages other than Spanish.
McCarthy Says Ross will make recommendations on the best practices in all aspects of the process judicial, law enforcement, staffing, case flow and facilities. Ross will meet with each of the local Domestic Violence Working Groups, which include the key players in the system. His recommendations will go to the Judicial Council, which is headed by Chief Justice Deborah Poritz and includes the AOC director and the chairmen of all the conferences of presiding judges in the civil, criminal, chancery and family courts.
Some groundwork already has been done. A number of similar visitation committees have been working in all the court divisions to produce guidelines and manuals.
In fact, former Union County Superior Court Judge John Callahan has been serving on recall to head a visitation committee investigating how child abuse and neglect matters, as well as parental fights terminations, are handled.
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