Inherently Physical Violent Offenses and Non-Physically Violent Offenses in Domestic Violence

There has always been an undercurrent in domestic violence cases that, while not all domestic violence allegations involve acts of physical violence, the cases that do require slightly different treatment.  The courts have tip-toed around the notion that cases involving harassment and stalking specifically require courts to find the existence of a previous history of domestic violence, while findings of the existence of physical violence alone suffices to issue a final restraining order. The courts have strained to treat all complaints of domestic violence equally, regardless of the basis of the complaint, and apply the statutory factors equally, without noting the distinction between physically non-violent acts and acts of physical violence.  In  Silver v. Silver, 387 N.J. Super. 112 (App.Div. 2006), the court intimated a distinction between acts of domestic violence that do not involve a finding of physical violence and those that do, but stopped short of creating a separate analysis and instead created a two-prong test to be applied in all domestic violence cases regardless of the type.  

In a recent Appellate Division case, A.M.C. v. P.B., --- A 3d --- 2016 WL 6134923 (App.Div. October 21, 2016), the Appellate Division went further and seemingly held that a finding of one physical act of violence alone is a prima facie basis for the issuance of a final restraining order.  In A.M.C., the Appellate Division re-visited the Silver decision and the second prong of the Silver test, requiring a finding of whether a final restraining order is necessary to prevent further harm.  Where the predicate act is an offense that inherently involves the use of physical force and violence, the Appellate Court focused primarily on the language of the opinion that drew the distinction and indicated that the decision to issue a final restraining order “is most often perfunctory and self-evident.”  While noting that a finding of domestic violence does not require actual violence, the Appellate Division in A.M.C. states, “Physical assault falls within the category of predicate offenses listed in N.J.S.A. 2C:25–19a that inherently and unambiguously involve the use of physical violence against a victim.”

Is A.M.C. a bellwether case for the notion that where there is a finding of an act of physical violence the second prong of Silver and the application of the statutory factors are unnecessary?  

In 1991, the New Jersey Legislature enacted the Prevention of Domestic Violence Act (“PDVA”) or (“the Act”).  A victim protected under the Act may seek a final restraining order by alleging the occurrence of one or more of the following 18 criminal offenses as a “predicate act”: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, stalking, criminal coercion, robbery, contempt of a domestic violence order and any crime involving risk of death or serious bodily injury.  Although these are criminal offenses, for the purposes of establishing that a predicate act occurred under the PDVA, the victim need only utilize the civil burden of proof.

Some of the 18 enumerated criminal offenses that may form the basis for an allegation by a victim pursuant to the PDVA, set forth above, inherently include physical violence or force.  For instance, robbery, assault, criminal restraint, sexual assault and criminal sexual contact all incorporate physical violence.  At the same time, offenses such as harassment, terroristic threats and stalking do not inherently involve physical violence.

In deciding whether to grant a final restraining order, the Act further provides:

The court shall consider but not be limited to the following factors:

(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

(2) The existence of immediate danger to person or property;

(3) The financial circumstances of the plaintiff and defendant;

(4) The best interests of the victim and any child;

(5) In determining custody and visitation the protection of the victim's safety; and

(6) The existence of a verifiable order of protection from another jurisdiction.

The second prong of Silver requires the court to apply the above six factors to determine if a final restraining order is needed.   Since the enactment of the PDVA, New Jersey courts have routinely hinted that acts involving physical violence, once established, may command less scrutiny than offenses such as harassment, regarding the application of the above factors.  Or put another way, some offenses are egregious enough that, when established, require less contextualization to determine the need for a final restraining order, despite the fact that the PDVA requires the court to consider the “previous history of domestic violence” and “the existence of immediate danger.”

A.M.C. focused almost entirely on the fact that the trial judge made a finding that an assault occurred. “The trial court's order denying plaintiff a final restraining order under the PDVA, despite finding defendant physically assaulted plaintiff on two separate occasions within a three-week period, is reversed. Applying the two-prong standard we first articulated in Silver, we hold that under the uncontested material facts of this case, plaintiff was entitled to a final restraining order as a matter of law.”

The Appellate Division went back to Silver and dug up Judge Falls’ one-line statement that, where there is a finding of violence, the issuance of a final restraining order is “most often perfunctory and self-evident.” The Court throughout the opinion noted that assault is “inherently violent” and acts that are inherently violent make the determination of the issuance of a final restraining order obvious, “self-evident” and “perfunctory.” The Court strained to stick with the Silver framework but, in a de facto manner, created a separate analysis for acts of domestic violence that incorporate acts of physical violence.  

A critical reading of A.M.C. requires the conclusion that a domestic violence case where there is an actual finding of harassment as the predicate act is to be treated much differently than a case where there is a finding of assault and no prior history.  One could argue that it would be a stretch to say that “a single finding of assault according to A.M.C. requires the issuance of a final restraining order,” but it may not be a good argument to make if your client is seeking protection and a final restraining order.

 Allen J. Scazafabo, Jr. Esq., is a contributor to the Riker Danzig Family Legal Blog and is Board Certified by the New Jersey Supreme Court as a Matrimonial Law Attorney.  As a member of the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP,  Allen practices in Riker Danzig’s Morristown, New Jersey office and focuses his practice on representing clients on issues relating to divorce, equitable distribution, support, custody, domestic violence, premarital agreements and appellate matters. You can reach Allen at 973-451-8428 or