http://www.njfamilylawblog.com/blog/2009/01/do-attorneys-have-the-authority-to-issue-subpoenas-in-post-judgment-motion-practice.html
In the absence of definitive legal authority to the contrary and based on tradition and practice, they issue subpoenas to gather information from parties and non-parties sometimes even before any motion has been filed with the court. Examples of non-court ordered post-judgment subpoena requests include seeking tax returns, personal and business bank statements, salary information from employers, disclosure from e-bay on sales, and testimony from police officers.
An editorial in the January 2009 issue of the “New Jersey Family Lawyer” discusses this issue and advises attorneys to proceed with caution with post-judgment discovery, stating, “[i]t does not appear that there is a sufficiently clear policy in the rules precluding a post-judgment subpoena, but an alternative argument could be made, because there is silence of the rules on this issue.”
The editorial discusses in detail the Monmouth County trial court opinion in Welch v. Welch, where an attorney issued a subpoena prior to filing a post-judgment motion with the court and the evidence was excluded when the motion was heard. The editorial does not take a position, concluding that “the entire issue should be considered and addressed by the Supreme Court Family Part Practice Committee.”
Neither the opinion in Welch nor the editorial in the "New Jersey Family Lawyer" discuss the NJ Supreme Court decision in Lepis v. Lepis, 83 N.J. 139, 157 (1980) which clearly states that post-divorce discovery should only be ordered by the court once a prima facie case of changed circumstances has been made.
The right to conduct depositions, subpoena witnesses and participate in unfettered discovery as part of post-judgment motion practice would obviate the need for any prima facie case of changed circumstances to be made before financial disclosure is ordered. Attorneys who subpoena opposing parties employment records or tax returns, therefore violate the principals set forth in Lepis by not first meeting their burden of making a prima facie case of changed circumstances before seeking court ordered discovery.
After a divorce, parties have a right to privacy that must be respected in the absence of a showing of need to the court for the information. Id. (“We recognize that individuals have a legitimate interest in the confidentiality of their income tax returns.”)
My take on this is that absent a court order there is no authority for an attorney to issue a subpoena in post-judgment motion practice and those attorneys that do run the risk of sanctions for abuse of the discovery process. However, there is the need for clearer guidance on this issue in the New Jersey Court
Family law attorneys need to be more responsible when accepting cases and pursuing a client's ex. Law firms need to put controls in place to monitor their attorneys instead of focusing on their bottom line.
The liability of the divorce litigator.
http://www.divorcesource.com/NJ/ARTICLES/gruber23.html
Saturday, April 3, 2010
Friday, March 19, 2010
Judge Susan Carbon Appointed to Head Violence Against Women Office
Posted : Tue, 16 Feb 2010 17:16:51 GMT
Author : U.S. Department of Justice
Category : Press Release
News
WASHINGTON, Feb. 16 /PRNewswire-USNewswire/ -- Attorney General Eric Holder today welcomed the confirmation of Judge Susan B. Carbon of Concord, N.H., as the new Director for the Justice Department's Office on Violence Against Women. Judge Carbon was confirmed by the U.S. Senate last week
"I am pleased to welcome Judge Carbon to the Justice Department and to the Office on Violence Against Women," said Attorney General Holder. "Bringing greater public awareness and strengthening programs to fight sexual and domestic violence, dating violence and stalking is a top priority for the Department. Judge Carbon will bring strong leadership to this important office and to the Department's mission to end violence against women."
The Office on Violence Against Women (OVW) provides national leadership in developing the nation's capacity to reduce violence against women through the implementation of the Violence Against Women Act (VAWA). Created in 1995, OVW administers financial and technical assistance to communities across the country that are developing programs, policies, and practices aimed at ending sexual and domestic violence, dating violence, and stalking. Currently, OVW administers two formula grant programs and 17 discretionary grant programs, which were established under VAWA and subsequent legislation. Since its inception, OVW has awarded nearly $4 billion in grants and cooperative agreements to communities throughout the nation.
In September 2009, the Department of Justice launched a year long commemoration of the 15th anniversary of the signing of the VAWA to raise public awareness of violence against women, and to build and strengthen relationships between and among federal, state, local and Tribal law enforcement, advocacy, courts and victim services communities.
Judge Susan Carbon was first appointed to the bench in 1991, and has served as Supervisory Judge of the New Hampshire Judicial Branch Family Division from 1996 until 2010. She is a member of the Governor's Commission on Domestic and Sexual Violence and chaired New Hampshire's Domestic Violence Fatality Review Committee. Judge Carbon also served as President of the National Council of Juvenile and Family Court Judges (NCJFCJ) from 2007 to 2008.
SOURCE U.S. Department of Justice
CONGRATULATIONS JUDGE CARBON. HOPEFULLY YOUR BACKGROUND WITH THE FAMILY COURTS WILL HELP STEM THE TIDE OF STALKING THROUGH THE FAMILY COURTS. I HAVE HAD 23 MOTIONS FILED AGAINST ME OVER THE PAST 12 YEARS. THAT IS 22 MOTIONS TOO MANY.
Author : U.S. Department of Justice
Category : Press Release
News
WASHINGTON, Feb. 16 /PRNewswire-USNewswire/ -- Attorney General Eric Holder today welcomed the confirmation of Judge Susan B. Carbon of Concord, N.H., as the new Director for the Justice Department's Office on Violence Against Women. Judge Carbon was confirmed by the U.S. Senate last week
"I am pleased to welcome Judge Carbon to the Justice Department and to the Office on Violence Against Women," said Attorney General Holder. "Bringing greater public awareness and strengthening programs to fight sexual and domestic violence, dating violence and stalking is a top priority for the Department. Judge Carbon will bring strong leadership to this important office and to the Department's mission to end violence against women."
The Office on Violence Against Women (OVW) provides national leadership in developing the nation's capacity to reduce violence against women through the implementation of the Violence Against Women Act (VAWA). Created in 1995, OVW administers financial and technical assistance to communities across the country that are developing programs, policies, and practices aimed at ending sexual and domestic violence, dating violence, and stalking. Currently, OVW administers two formula grant programs and 17 discretionary grant programs, which were established under VAWA and subsequent legislation. Since its inception, OVW has awarded nearly $4 billion in grants and cooperative agreements to communities throughout the nation.
In September 2009, the Department of Justice launched a year long commemoration of the 15th anniversary of the signing of the VAWA to raise public awareness of violence against women, and to build and strengthen relationships between and among federal, state, local and Tribal law enforcement, advocacy, courts and victim services communities.
Judge Susan Carbon was first appointed to the bench in 1991, and has served as Supervisory Judge of the New Hampshire Judicial Branch Family Division from 1996 until 2010. She is a member of the Governor's Commission on Domestic and Sexual Violence and chaired New Hampshire's Domestic Violence Fatality Review Committee. Judge Carbon also served as President of the National Council of Juvenile and Family Court Judges (NCJFCJ) from 2007 to 2008.
SOURCE U.S. Department of Justice
CONGRATULATIONS JUDGE CARBON. HOPEFULLY YOUR BACKGROUND WITH THE FAMILY COURTS WILL HELP STEM THE TIDE OF STALKING THROUGH THE FAMILY COURTS. I HAVE HAD 23 MOTIONS FILED AGAINST ME OVER THE PAST 12 YEARS. THAT IS 22 MOTIONS TOO MANY.
Saturday, January 16, 2010
NJ stalker commits suicide January 2010
How stunned am I to write this entry..... I was brought into the Prosecutors Office yesterday and told that the man who admitted to stalking me and placing threatening calls to me and who was facing federal prosecution committed suicide instead of facing the consequences for his actions. I am shocked and saddened for the family's loss but as you all know i have struggled seeking justice for over a decade. My humblest and heartfelt thanks go out to FBI Agent RJ Gallagher - this was a ten year case; it stopped and started and you didn't fail me. Sergeant Ross Yenisey - words will never describe my sincere appreciation for all your help over the past 4 years. You initiated crafting the NJ law to help me. You wrote it inserting all of the critical parts relating to my case. You never doubted me. You encouraged me to keep fighting and you aided me in my fight for justice. You deserved your promotion. The fight for justice is not over...... somehow this man gained access to my American Express card and in one of his messages left on my voicemail clearly told me "You lying ______................ I've got your cell phone number and that's not all I have you are going to get yours". The next day someone in NYC is using my Amex card repeatedly. Justice is coming........
Sunday, December 13, 2009
Tuesday, December 1, 2009
NJ Courts Directive ; Co-Occurring Child Abuse and Domestic Violence - Operational Guidance
This is an excellent attempt to help address stalking through the courts; the use of the family court system by the wealthy ex as a weapon to inflict pain and carry out a vendetta through malicious and frivolous filings in family courts.
https://njcourts.judiciary.state.nj.us/web0/directive/2009/dir_03-09.pdf
ADMINISTRATIVE OFFICE OF THE COURTS
STATE OF NEW JERSEY
RICHARD J. HUGHES JUSTICE COMPLEX
PO BOX 037
TRENTON, NEW JERSEY 0862500037
GLENN A. GRANT, J.A.D.
ACTING ADMINISTRATIVE DIRECTOR
OF THE COURTS
[Questions or comments may
be directed to 609-984-4228.]
Directive # 03-09
TO: Assignment Judges
Family Presiding Judges
Trial Court Administrators
Family Division Managers
FROM: Glenn A. Grant, J.A.D.
SUBJ: Co-Occurring Child Abuse and Domestic Violence -- Operational
Guidance
DATE: May 29, 2009
Background
The occurrence of family violence directed at children, on the one hand, and adult intimate partners, on the other, is characterized differently by the legal and social service systems. Those systems are designed to respond either to “child abuse” or to “domestic violence,” but not to both. When both domestic violence and child abuse occur together, the differences in approaches to the two kinds of behavior may fail to address the needs of the victims effectively. The characterization of the behavior in a reported incident is too often based not on the facts and psychodynamics but rather on which “system” is called upon to respond to the incident first.
The very significant differences in the assumptions, goals and laws applicable to the child welfare system and to the domestic violence system have profound implications in the potential outcome for children and families affected by both kinds of behavior simultaneously. They may not, therefore, effectively address the relationship between behavior labeled either as one or the other. This memorandum prescribes better ways to aid the victims of domestic violence and the victims of child abuse in these tragic situations.
In April 2007, a joint conference was convened by then-Chief Justice James R. Zazzali, and then-Commissioner of the Department of Children and Families Kevin M. Ryan. The purpose of the conference was to consider the recommendations contained in a policy statement entitled "Effective Intervention in Domestic Violence and Child Maltreatment Cases: Guidelines for Policy and Practice" adopted by the National Council of Juvenile and Family Court Judges, Family Violence Department. As a result of the April 2007 conference, a Joint Task Force was appointed comprised of representatives of the Judiciary, the Department of Children and Families, and domestic violence victim advocates. The goal of the Joint Task Force was to coordinate the interface of policies developed by the Judiciary and by the Department of Children and Families to ensure effective handling of cases of co-occurrence. The resulting recommendations were considered and endorsed by the Conferences of Family Presiding Judges and Family Division Managers.
The deliberations of the Conferences in the development of these recommendations were guided by the New Jersey statutes, Rules of Court, case law, policy established by the Supreme Court and the Judicial Council, and the recommendations of the National Council that reflected the latest research findings and a deliberative process that included national experts in the fields of domestic violence and child welfare.
The purpose of this memorandum is to provide operational guidance to judgesand staff on the implementation of these principles. This guidance does not, however intend to impinge on judicial discretion or the judge’s ability to make decisions in the best interest of the litigants, consistent with the law. Other recommendations that provide for amendments to the Rules of Court, revision of Judiciary case processing manuals, and the actions of Executive Branch agencies will be addressed in separate documents.
The Legal Framework
The Family Division of the Superior Court brings into one division all case types involving families or those in family-like settings. However, the court's view of violence within the family and how the Judiciary should respond to the co-occurrence of child abuse/neglect and domestic violence has not previously been stated in a single unified policy.
The absence of a unified approach to cases of co-occurrence may result in unintentional harm to victims. In a worst case scenario, for example, a parent who is a victim of domestic violence may be re-victimized by having her child removed from her care by the child protection agency seeking to protect that child from similar violence by the same batterer.
New Jersey has adopted different statutes to protect children from abuse and neglect (N.J.S.A. 9:6-1 et seq.) and to protect victims of domestic violence and their children (The Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq.). Judges may be called on to address co-occurrence cases in all case types: child abuse or child protection cases (FN), also called Children in Court or CIC cases, family crisis petitions
(FF), custody and parenting time cases (FM/FD), domestic violence restraining order applications (FV), contempt of domestic violence restraining orders (FO), and even in juvenile cases (FJ).
The New Jersey Judiciary recognizes that co-occurrence affects children in two primary ways:
First, one of the child’s caregivers may perpetrate domestic violence on the other caregiver and physically abuse the child as well, or
Second, one of the child’s caregivers may perpetrate domestic violence on the other caregiver, exposing the child to that domestic violence, and the nonabusive caregiver is unable or unwilling to protect the child from the resulting emotional abuse even with the assistance of available social services.
What is required is that the judges and staff who comprise the Judiciary understand and recognize the co-occurrence of domestic violence and child maltreatment, and affirm the importance of protecting both the non-offending caregiver and the child in situations of co-occurrence. Indeed, N.J.S.A. 2C:25-18 mandates that: it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by
ordering those remedies and sanctions that are available to assure the safety of the victims and the public.
Proper Management and Disposition of Cases of Co-Occurrence
The policy of the Judiciary is that in each situation where the court finds cooccurrence, it should consider:
• protecting victims from physical harm;
• providing adequate social and economic support for families; and
• providing access to services that are respectful, culturally relevant and responsive to the unique strengths and concerns of that family.
Additionally, to the extent authorized by law, the Judiciary recognizes its role to hold the perpetrators accountable for their abusive behavior, to consider appropriate legal interventions and, when required, to order that both the victim and the perpetrator be provided with the kind of social services that can help stop the violence.
A. Court Staff Requirements -- Case Processing
To implement these principles, Family Division staff should observe the following:
1. Court staff should ensure that cases involving co-occurrence receive prompt andfocused attention, ensuring that safe placements and services are identified immediately and that safety-enhancing orders are entered for children and other family members.
2. All cases filed in the Family Division should be screened by staff at the initial filing to determine case history and identify any other pending cases.
3. When a domestic violence (FV) case is filed and the family has another pending CIC action, the judge who already is handling the CIC matter should, where practical, be assigned to hear the new FV matter, in keeping with the one family/one judge principle.
4. Judiciary staff is often confronted with questions concerning the use of information disclosed by victims. Any requests from the Division of Youth and Family Services (DYFS) for access to FV court files should be referred to the Family Presiding Judge for determination.
5. When courts and agencies exchange information concerning family members, from either the abuse/neglect or the FV case, from the DYFS file or the court’s file, the safety and privacy concerns of all parties should be balanced carefully with the need for access to such potentially harmful information.
6. The Family Division should work with DYFS to identify extended family members who may be able to help and other family resources as early as possible in cooccurrence cases.
7. In a CIC case, court staff must ensure that DYFS has assessed any proposed caregivers for the child, including the non-custodial caregiver, any relation or kin or foster parent, for any history of child maltreatment, criminal involvement, domestic violence, and substance abuse. The caregivers also should be
assessed for their willingness to work with the court, social service agencies and the non-offending parents to meet the needs of the child.
8. Family Division staff should encourage the utilization of a domestic violence advocate for the abused parent in all family cases involving domestic violence and encourage the input of domestic violence advocates in the development of service plans.
9. Family Division staff should observe the protocol for monitoring and enforcing domestic violence defendants’ compliance with orders to attend counseling and batters’ intervention programs (March 10, 2009 memo from Acting Administrative Director Glenn A. Grant to Assignment Judges and Trial Court Administrators).
10. There are circumstances when an adult caretaker is charged with a criminal offense and is the defendant in a Title 9 abuse/neglect action filed by DYFS. Pursuant to R. 3:26-1(b), the Criminal Division should provide the Family Division with a copy of any bail order imposing a restriction on contact between a criminal defendant and a defendant's minor children. The rule also provides that such conditions shall not affect contact authorized by an order of the Family Part in a child abuse/neglect case entered after any restriction on contact was imposed as part of a bail order. Pursuant to R. 5:12-6(a)(1), on scheduling any hearing at which visitation conditions are to be imposed or modified, court staff shall provide notice to the county prosecutor and to counsel representing the parent or guardian in the criminal prosecution, as well as to all counsel and parties in the Division of Youth and Family Services matter.
B. Judicial Considerations – Co-occurrence Determinations
In all cases where co-occurrence is present, in exercising its judicial discretion, the court should consider the following:
1. Strive to achieve three outcomes:
a. to create safety;
b. to enhance well being; and
c. to provide stability for children and families, recognizing that pursuant to the Adoption and Safe Families Act (ASFA), the court's mandate is to view the "child's safety and well being as paramount."
2. In cases where the only allegation in a child abuse (FN) complaint is that the child has been exposed to domestic violence, consistent with N.J.S.A. 9:6-8.9, the court should consider both whether the child has been placed at substantial risk of harm from that exposure and whether the non-abusing caregiver is unable
or unwilling to protect the child from emotional abuse even with the assistance of available social services and services of Department of Children and Families. This two-fold consideration seeks to avoid re-victimizing the non-offending parent by unnecessarily removing the child(ren).
3. The court, when entering an order, should consider:
a. keeping the child and the non-abusive caregiver victim safe;
b. keeping the child and the non-abusive caregiver together whenever possible (N.J.S.A. 2C:25-29b(11) states, "The court shall presume that the best interests of the child are served by an award of custody to the non-abusive parent." Also, N.J.S.A. 9:2-4c requires that any history of domestic violence between the parties shall be considered by the court in making an award of custody.);
c. holding the perpetrator accountable;
d. identifying the service needs of all family members, including all forms of assistance and help for the child; safety, support, and economic stability for the victim; and rehabilitation and accountability for the perpetrator;
e. creating clear, detailed custody/parenting time orders that focus on safe exchanges and safe environments for parenting time; and
f. when appropriate, using an order of protection pursuant to N.J.S.A. 9:6-8.55 to ensure the safety of the non-abusive caregiver and the child.
4. Judges are often confronted with questions concerning the use of information disclosed by victims. When making decisions about information disclosure, judges should, consistent with laws and policies, balance (a) the need for information required to prove the occurrence of child maltreatment and to keep children safe, with (b) the need of victims of domestic violence to keepinformation confidential in order to maintain and plan effectively for their safety. (See also Rule 1:38(d), Rule 5:17-4(b) (Family Crisis), N.J.S.A. 2C:25-33
(domestic violence), N.J.S.A. 9:6-8.10(a) (child abuse/neglect), and N.J.R.E. 517.) These questions may arise when DYFS requests DV records, in DYFS interviews with non-offending parents in cases of co-occurrence, or in evaluations.
5. When the Family judge determines that the non-abusing caregiver has the ability to protect the child with or without services, the judge should first consider removing the abuser before separating the child from the non-abusive caregiver.
6. Before entering an order placing a child out of the home in cases of cooccurrence, the court should ensure that any proposed caregivers for the child, including the non-custodial caregiver, any relation or kin or foster parent, have been assessed for any history of child maltreatment, criminal involvement, domestic violence, and substance abuse as well as their willingness to work with the court, social service agencies and the caregiver who has been the victim of domestic violence to meet the needs of the child.
7. Judges should encourage the utilization of a domestic violence advocate for the abused caregiver in all family cases involving domestic violence and encourage the input of domestic violence advocates in development of service plans.
8. In child abuse cases, services ordered through DYFS should focus on the dynamics of domestic violence, the creation of safety plans, and the effects of domestic violence upon children.
9. In child abuse cases, it is important that separate services for the perpetrator and the victim of domestic violence are in the court's orders to address each party's needs.
10. Judges should generally not order couples counseling when domestic violence has occurred. The only exception is that judges may order couples counseling if there is no Temporary Restraining Order or Final Restraining Order under the Prevention of Domestic Violence Act and the judge finds it to be in the best
interests of the children to do so.
11. Safe parenting time and visitation exchange locations should be utilized so that supervised parenting time and exchanges will be safe for the child and for the battered parent.
12. Victimization of the non-abusive parent should be a factor in determining whether exceptional circumstances exist to allow extension of the reunification time limits. No such extension of time should be permitted, however, if it is contrary to the best interests of the child to do so.
13. DYFS and available service providers should make adequate efforts to ensure the safety of child and adult victims of domestic violence by providing supportive services to the non-abusive parent, or intervention programs to the abusing parent. The judge may use the requirements of state and federal law that DYFS
make “reasonable efforts” to reunify the family.
Establishment of a Joint Committee on Children and Domestic Violence in Each County
In addition to the implementation of these specific steps, I ask that the Family Presiding Judge in each vicinage extend the concept of the Chief Justice/DCF Commissioner Joint Task Force on Children and Domestic Violence to each county. To do so, the vicinage should reach out to the DYFS Local Office Managers to develop a joint group to implement the requirements of this memorandum as well as the protocols and policies of DCF. Such county Joint Committees will ensure more productive relationships and facilitate communications among DCF, the Judiciary, and victim advocacy groups. In the establishment of the group, the county may call upon the membership of the CIC Advisory Committee and the county domestic violence working group.
Training
The Family Practice Division in the Administrative Office of the Courts should coordinate training for judges and court staff in addition to the development of a joint training program with DCF.
Implementation Plan
I appreciate your dedication and commitment to provide the highest possible attention to these cases and to implement these principles despite our current economic climate. Please submit to me a written plan for your implementation of the requirements of this memorandum by Monday, September 14, 2009. Questions concerning this memorandum may be addressed to Harry T. Cassidy, Assistant Director, at (609) 984-4228.
G.A.G.
cc: Chief Justice Stuart Rabner
Commissioner Kimberly S. Ricketts, DCF
Criminal Presiding Judges
Family Division Judges
AOC Directors and Assistant Directors
Criminal Division Managers
CIC Team Leaders
FV Team Leaders
Francis W. Hoeber, Special Assistant
Steven D. Bonville, Special Assistant
https://njcourts.judiciary.state.nj.us/web0/directive/2009/dir_03-09.pdf
ADMINISTRATIVE OFFICE OF THE COURTS
STATE OF NEW JERSEY
RICHARD J. HUGHES JUSTICE COMPLEX
PO BOX 037
TRENTON, NEW JERSEY 0862500037
GLENN A. GRANT, J.A.D.
ACTING ADMINISTRATIVE DIRECTOR
OF THE COURTS
[Questions or comments may
be directed to 609-984-4228.]
Directive # 03-09
TO: Assignment Judges
Family Presiding Judges
Trial Court Administrators
Family Division Managers
FROM: Glenn A. Grant, J.A.D.
SUBJ: Co-Occurring Child Abuse and Domestic Violence -- Operational
Guidance
DATE: May 29, 2009
Background
The occurrence of family violence directed at children, on the one hand, and adult intimate partners, on the other, is characterized differently by the legal and social service systems. Those systems are designed to respond either to “child abuse” or to “domestic violence,” but not to both. When both domestic violence and child abuse occur together, the differences in approaches to the two kinds of behavior may fail to address the needs of the victims effectively. The characterization of the behavior in a reported incident is too often based not on the facts and psychodynamics but rather on which “system” is called upon to respond to the incident first.
The very significant differences in the assumptions, goals and laws applicable to the child welfare system and to the domestic violence system have profound implications in the potential outcome for children and families affected by both kinds of behavior simultaneously. They may not, therefore, effectively address the relationship between behavior labeled either as one or the other. This memorandum prescribes better ways to aid the victims of domestic violence and the victims of child abuse in these tragic situations.
In April 2007, a joint conference was convened by then-Chief Justice James R. Zazzali, and then-Commissioner of the Department of Children and Families Kevin M. Ryan. The purpose of the conference was to consider the recommendations contained in a policy statement entitled "Effective Intervention in Domestic Violence and Child Maltreatment Cases: Guidelines for Policy and Practice" adopted by the National Council of Juvenile and Family Court Judges, Family Violence Department. As a result of the April 2007 conference, a Joint Task Force was appointed comprised of representatives of the Judiciary, the Department of Children and Families, and domestic violence victim advocates. The goal of the Joint Task Force was to coordinate the interface of policies developed by the Judiciary and by the Department of Children and Families to ensure effective handling of cases of co-occurrence. The resulting recommendations were considered and endorsed by the Conferences of Family Presiding Judges and Family Division Managers.
The deliberations of the Conferences in the development of these recommendations were guided by the New Jersey statutes, Rules of Court, case law, policy established by the Supreme Court and the Judicial Council, and the recommendations of the National Council that reflected the latest research findings and a deliberative process that included national experts in the fields of domestic violence and child welfare.
The purpose of this memorandum is to provide operational guidance to judgesand staff on the implementation of these principles. This guidance does not, however intend to impinge on judicial discretion or the judge’s ability to make decisions in the best interest of the litigants, consistent with the law. Other recommendations that provide for amendments to the Rules of Court, revision of Judiciary case processing manuals, and the actions of Executive Branch agencies will be addressed in separate documents.
The Legal Framework
The Family Division of the Superior Court brings into one division all case types involving families or those in family-like settings. However, the court's view of violence within the family and how the Judiciary should respond to the co-occurrence of child abuse/neglect and domestic violence has not previously been stated in a single unified policy.
The absence of a unified approach to cases of co-occurrence may result in unintentional harm to victims. In a worst case scenario, for example, a parent who is a victim of domestic violence may be re-victimized by having her child removed from her care by the child protection agency seeking to protect that child from similar violence by the same batterer.
New Jersey has adopted different statutes to protect children from abuse and neglect (N.J.S.A. 9:6-1 et seq.) and to protect victims of domestic violence and their children (The Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq.). Judges may be called on to address co-occurrence cases in all case types: child abuse or child protection cases (FN), also called Children in Court or CIC cases, family crisis petitions
(FF), custody and parenting time cases (FM/FD), domestic violence restraining order applications (FV), contempt of domestic violence restraining orders (FO), and even in juvenile cases (FJ).
The New Jersey Judiciary recognizes that co-occurrence affects children in two primary ways:
First, one of the child’s caregivers may perpetrate domestic violence on the other caregiver and physically abuse the child as well, or
Second, one of the child’s caregivers may perpetrate domestic violence on the other caregiver, exposing the child to that domestic violence, and the nonabusive caregiver is unable or unwilling to protect the child from the resulting emotional abuse even with the assistance of available social services.
What is required is that the judges and staff who comprise the Judiciary understand and recognize the co-occurrence of domestic violence and child maltreatment, and affirm the importance of protecting both the non-offending caregiver and the child in situations of co-occurrence. Indeed, N.J.S.A. 2C:25-18 mandates that: it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by
ordering those remedies and sanctions that are available to assure the safety of the victims and the public.
Proper Management and Disposition of Cases of Co-Occurrence
The policy of the Judiciary is that in each situation where the court finds cooccurrence, it should consider:
• protecting victims from physical harm;
• providing adequate social and economic support for families; and
• providing access to services that are respectful, culturally relevant and responsive to the unique strengths and concerns of that family.
Additionally, to the extent authorized by law, the Judiciary recognizes its role to hold the perpetrators accountable for their abusive behavior, to consider appropriate legal interventions and, when required, to order that both the victim and the perpetrator be provided with the kind of social services that can help stop the violence.
A. Court Staff Requirements -- Case Processing
To implement these principles, Family Division staff should observe the following:
1. Court staff should ensure that cases involving co-occurrence receive prompt andfocused attention, ensuring that safe placements and services are identified immediately and that safety-enhancing orders are entered for children and other family members.
2. All cases filed in the Family Division should be screened by staff at the initial filing to determine case history and identify any other pending cases.
3. When a domestic violence (FV) case is filed and the family has another pending CIC action, the judge who already is handling the CIC matter should, where practical, be assigned to hear the new FV matter, in keeping with the one family/one judge principle.
4. Judiciary staff is often confronted with questions concerning the use of information disclosed by victims. Any requests from the Division of Youth and Family Services (DYFS) for access to FV court files should be referred to the Family Presiding Judge for determination.
5. When courts and agencies exchange information concerning family members, from either the abuse/neglect or the FV case, from the DYFS file or the court’s file, the safety and privacy concerns of all parties should be balanced carefully with the need for access to such potentially harmful information.
6. The Family Division should work with DYFS to identify extended family members who may be able to help and other family resources as early as possible in cooccurrence cases.
7. In a CIC case, court staff must ensure that DYFS has assessed any proposed caregivers for the child, including the non-custodial caregiver, any relation or kin or foster parent, for any history of child maltreatment, criminal involvement, domestic violence, and substance abuse. The caregivers also should be
assessed for their willingness to work with the court, social service agencies and the non-offending parents to meet the needs of the child.
8. Family Division staff should encourage the utilization of a domestic violence advocate for the abused parent in all family cases involving domestic violence and encourage the input of domestic violence advocates in the development of service plans.
9. Family Division staff should observe the protocol for monitoring and enforcing domestic violence defendants’ compliance with orders to attend counseling and batters’ intervention programs (March 10, 2009 memo from Acting Administrative Director Glenn A. Grant to Assignment Judges and Trial Court Administrators).
10. There are circumstances when an adult caretaker is charged with a criminal offense and is the defendant in a Title 9 abuse/neglect action filed by DYFS. Pursuant to R. 3:26-1(b), the Criminal Division should provide the Family Division with a copy of any bail order imposing a restriction on contact between a criminal defendant and a defendant's minor children. The rule also provides that such conditions shall not affect contact authorized by an order of the Family Part in a child abuse/neglect case entered after any restriction on contact was imposed as part of a bail order. Pursuant to R. 5:12-6(a)(1), on scheduling any hearing at which visitation conditions are to be imposed or modified, court staff shall provide notice to the county prosecutor and to counsel representing the parent or guardian in the criminal prosecution, as well as to all counsel and parties in the Division of Youth and Family Services matter.
B. Judicial Considerations – Co-occurrence Determinations
In all cases where co-occurrence is present, in exercising its judicial discretion, the court should consider the following:
1. Strive to achieve three outcomes:
a. to create safety;
b. to enhance well being; and
c. to provide stability for children and families, recognizing that pursuant to the Adoption and Safe Families Act (ASFA), the court's mandate is to view the "child's safety and well being as paramount."
2. In cases where the only allegation in a child abuse (FN) complaint is that the child has been exposed to domestic violence, consistent with N.J.S.A. 9:6-8.9, the court should consider both whether the child has been placed at substantial risk of harm from that exposure and whether the non-abusing caregiver is unable
or unwilling to protect the child from emotional abuse even with the assistance of available social services and services of Department of Children and Families. This two-fold consideration seeks to avoid re-victimizing the non-offending parent by unnecessarily removing the child(ren).
3. The court, when entering an order, should consider:
a. keeping the child and the non-abusive caregiver victim safe;
b. keeping the child and the non-abusive caregiver together whenever possible (N.J.S.A. 2C:25-29b(11) states, "The court shall presume that the best interests of the child are served by an award of custody to the non-abusive parent." Also, N.J.S.A. 9:2-4c requires that any history of domestic violence between the parties shall be considered by the court in making an award of custody.);
c. holding the perpetrator accountable;
d. identifying the service needs of all family members, including all forms of assistance and help for the child; safety, support, and economic stability for the victim; and rehabilitation and accountability for the perpetrator;
e. creating clear, detailed custody/parenting time orders that focus on safe exchanges and safe environments for parenting time; and
f. when appropriate, using an order of protection pursuant to N.J.S.A. 9:6-8.55 to ensure the safety of the non-abusive caregiver and the child.
4. Judges are often confronted with questions concerning the use of information disclosed by victims. When making decisions about information disclosure, judges should, consistent with laws and policies, balance (a) the need for information required to prove the occurrence of child maltreatment and to keep children safe, with (b) the need of victims of domestic violence to keepinformation confidential in order to maintain and plan effectively for their safety. (See also Rule 1:38(d), Rule 5:17-4(b) (Family Crisis), N.J.S.A. 2C:25-33
(domestic violence), N.J.S.A. 9:6-8.10(a) (child abuse/neglect), and N.J.R.E. 517.) These questions may arise when DYFS requests DV records, in DYFS interviews with non-offending parents in cases of co-occurrence, or in evaluations.
5. When the Family judge determines that the non-abusing caregiver has the ability to protect the child with or without services, the judge should first consider removing the abuser before separating the child from the non-abusive caregiver.
6. Before entering an order placing a child out of the home in cases of cooccurrence, the court should ensure that any proposed caregivers for the child, including the non-custodial caregiver, any relation or kin or foster parent, have been assessed for any history of child maltreatment, criminal involvement, domestic violence, and substance abuse as well as their willingness to work with the court, social service agencies and the caregiver who has been the victim of domestic violence to meet the needs of the child.
7. Judges should encourage the utilization of a domestic violence advocate for the abused caregiver in all family cases involving domestic violence and encourage the input of domestic violence advocates in development of service plans.
8. In child abuse cases, services ordered through DYFS should focus on the dynamics of domestic violence, the creation of safety plans, and the effects of domestic violence upon children.
9. In child abuse cases, it is important that separate services for the perpetrator and the victim of domestic violence are in the court's orders to address each party's needs.
10. Judges should generally not order couples counseling when domestic violence has occurred. The only exception is that judges may order couples counseling if there is no Temporary Restraining Order or Final Restraining Order under the Prevention of Domestic Violence Act and the judge finds it to be in the best
interests of the children to do so.
11. Safe parenting time and visitation exchange locations should be utilized so that supervised parenting time and exchanges will be safe for the child and for the battered parent.
12. Victimization of the non-abusive parent should be a factor in determining whether exceptional circumstances exist to allow extension of the reunification time limits. No such extension of time should be permitted, however, if it is contrary to the best interests of the child to do so.
13. DYFS and available service providers should make adequate efforts to ensure the safety of child and adult victims of domestic violence by providing supportive services to the non-abusive parent, or intervention programs to the abusing parent. The judge may use the requirements of state and federal law that DYFS
make “reasonable efforts” to reunify the family.
Establishment of a Joint Committee on Children and Domestic Violence in Each County
In addition to the implementation of these specific steps, I ask that the Family Presiding Judge in each vicinage extend the concept of the Chief Justice/DCF Commissioner Joint Task Force on Children and Domestic Violence to each county. To do so, the vicinage should reach out to the DYFS Local Office Managers to develop a joint group to implement the requirements of this memorandum as well as the protocols and policies of DCF. Such county Joint Committees will ensure more productive relationships and facilitate communications among DCF, the Judiciary, and victim advocacy groups. In the establishment of the group, the county may call upon the membership of the CIC Advisory Committee and the county domestic violence working group.
Training
The Family Practice Division in the Administrative Office of the Courts should coordinate training for judges and court staff in addition to the development of a joint training program with DCF.
Implementation Plan
I appreciate your dedication and commitment to provide the highest possible attention to these cases and to implement these principles despite our current economic climate. Please submit to me a written plan for your implementation of the requirements of this memorandum by Monday, September 14, 2009. Questions concerning this memorandum may be addressed to Harry T. Cassidy, Assistant Director, at (609) 984-4228.
G.A.G.
cc: Chief Justice Stuart Rabner
Commissioner Kimberly S. Ricketts, DCF
Criminal Presiding Judges
Family Division Judges
AOC Directors and Assistant Directors
Criminal Division Managers
CIC Team Leaders
FV Team Leaders
Francis W. Hoeber, Special Assistant
Steven D. Bonville, Special Assistant
Sunday, October 11, 2009
Fifteenth Anniversary of the Violence Against Women Act
THE WHITE HOUSE
Office of the Press Secretary
___________________________________________________________________________
FIFTEENTH ANNIVERSARY OF THE VIOLENCE AGAINST WOMEN ACT
- - - - - - -
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION
Today, we commemorate a milestone in our Nation's struggle to end violence against women. Authored by then United States Senator Joe Biden and signed into law in September 1994, the Violence Against Women Act (VAWA) was the first law to create a comprehensive response to this problem at the national level. This landmark achievement has helped our Nation make great strides towards addressing this global epidemic.
VAWA sought to improve our criminal justice system's response to violence against women and to increase services available to victims. It directed all 50 States to recognize and enforce protection orders issued by other jurisdictions, and it created new Federal domestic violence crimes. The law also authorized hundreds of millions of dollars to communities and created a national domestic violence hotline.
This bipartisan accomplishment has ushered in a new era of responsibility in the fight to end violence against women. In the 15 years since VAWA became law, our Nation's response to domestic violence, dating violence, sexual assault, and stalking has strengthened. Communities recognize the special needs of victims and appreciate the benefits of collaboration among professionals in the civil and criminal justice system, victim advocates, and other service providers. With the support of VAWA funds, dedicated units of law enforcement officers and specialized prosecutors have grown more numerous than ever before. Most importantly, victims are more likely to have a place to turn for help -- for emergency shelter and crisis services, and also for legal assistance, transitional housing, and services for their children.
Despite this great progress, our Nation's work remains unfinished. More families and communities must recognize that the safety of our children relates directly to the safety of our mothers. Access to sexual assault services, especially in rural America, must be increased. American Indian and Alaska Native women experience the highest rates of violence, and we must make it a priority to address this urgent problem. We must also work with diverse communities to make sure the response to violence is relevant and culturally appropriate. We must prevent the homicide of women and girls who have suffered from domestic violence, dating violence, sexual assault, and stalking.
Far too many women in our communities and neighborhoods, and across the world, continue to suffer from violence. Inspired by the promise and achievement of the Violence Against Women Act, our Nation stands united in its determination to end these crimes and help those in need.
NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim the Fifteenth Anniversary of the Violence Against Women Act. I call upon men and women of all ages, communities, organizations, and all levels of government, to work in collaboration to end violence against women.
IN WITNESS WHEREOF, I have hereunto set my hand this fourteenth day of September, in the year of our Lord two thousand nine, and of the Independence of the United States of America the two hundred and thirty-fourth.
BARACK OBAMA
Office of the Press Secretary
___________________________________________________________________________
FIFTEENTH ANNIVERSARY OF THE VIOLENCE AGAINST WOMEN ACT
- - - - - - -
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
A PROCLAMATION
Today, we commemorate a milestone in our Nation's struggle to end violence against women. Authored by then United States Senator Joe Biden and signed into law in September 1994, the Violence Against Women Act (VAWA) was the first law to create a comprehensive response to this problem at the national level. This landmark achievement has helped our Nation make great strides towards addressing this global epidemic.
VAWA sought to improve our criminal justice system's response to violence against women and to increase services available to victims. It directed all 50 States to recognize and enforce protection orders issued by other jurisdictions, and it created new Federal domestic violence crimes. The law also authorized hundreds of millions of dollars to communities and created a national domestic violence hotline.
This bipartisan accomplishment has ushered in a new era of responsibility in the fight to end violence against women. In the 15 years since VAWA became law, our Nation's response to domestic violence, dating violence, sexual assault, and stalking has strengthened. Communities recognize the special needs of victims and appreciate the benefits of collaboration among professionals in the civil and criminal justice system, victim advocates, and other service providers. With the support of VAWA funds, dedicated units of law enforcement officers and specialized prosecutors have grown more numerous than ever before. Most importantly, victims are more likely to have a place to turn for help -- for emergency shelter and crisis services, and also for legal assistance, transitional housing, and services for their children.
Despite this great progress, our Nation's work remains unfinished. More families and communities must recognize that the safety of our children relates directly to the safety of our mothers. Access to sexual assault services, especially in rural America, must be increased. American Indian and Alaska Native women experience the highest rates of violence, and we must make it a priority to address this urgent problem. We must also work with diverse communities to make sure the response to violence is relevant and culturally appropriate. We must prevent the homicide of women and girls who have suffered from domestic violence, dating violence, sexual assault, and stalking.
Far too many women in our communities and neighborhoods, and across the world, continue to suffer from violence. Inspired by the promise and achievement of the Violence Against Women Act, our Nation stands united in its determination to end these crimes and help those in need.
NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim the Fifteenth Anniversary of the Violence Against Women Act. I call upon men and women of all ages, communities, organizations, and all levels of government, to work in collaboration to end violence against women.
IN WITNESS WHEREOF, I have hereunto set my hand this fourteenth day of September, in the year of our Lord two thousand nine, and of the Independence of the United States of America the two hundred and thirty-fourth.
BARACK OBAMA
Sunday, September 27, 2009
Civil Stalking Statute - New Jersey needs a civil stalking law.......
Model Civil Stalking Statute
By Jeffrey Dion, Esq.
Director, National Crime Victim Bar Association
Civil action for stalking.
A. A victim has a civil cause of action against an individual who engaged in conduct that is prohibited under § [criminal stalking code], whether or not the individual has been charged or convicted for the alleged violation, for the compensatory damages incurred by the victim as a result of that conduct, in addition to the costs for bringing the action. If compensatory damages are awarded, a victim may also be awarded punitive damages.
B. As used in this section:
"Compensatory damages" includes damages for all of the defendant's acts prohibited by § [criminal stalking code]
"Victim" means a person who, because of the conduct of the defendant that is prohibited under § [criminal stalking code], was placed in reasonable fear for his own personal safety or for the safety of a minor child of whom the person is a parent or legal guardian.
C. No action shall be commenced under this section more than [personal injury statute of limitations in that state] years after the most recent conduct prohibited under § [criminal stalking code].
A Statutory Civil Cause of Action for Stalking
Stalking is a crime that is often difficult to prosecute. The nature of stalking allegations are sometimes not easily substantiated to meet the prosecution's burden of proving the case beyond a reasonable doubt. Prosecutors often struggle to convince the judge or jury of the potential dangerousness of a stalker's behavior, and prove that it is the context in which individual, often innocuous and non-criminal, acts occur is what makes stalking a crime. Evidentiary issues also make criminal cases more difficult because physical or corroborating evidence of a stalking may not be readily available. As a result, judges and jurors are often unable to determine whether a stalker's conduct was, in fact, an act of stalking or simply an unintentional encounter with the complainant. For that reason, stalking is sometimes more easily pursued as a civil action rather than a criminal prosecution. A civil stalking statute would provide a crucial legal option for stalking victims when the criminal justice system is not responsive or is unsuccessful in obtaining a conviction, and may be more effective than criminal prosecution in lowering the number of stalking incidents.
Even upon a successful prosecution, civil actions provide a means of recourse in addition to the criminal justice system. Other available remedies, such as restraining orders, may not effectively abate stalking conduct, leaving victims with no alternative but to wait for a stalker to act in a more severe and dangerous manner. Civil statutes provide stalking victims with a cause of action for monetary losses incurred as a result of a stalker's conduct. These losses may include the cost of implementing security measures to combat a stalker's threats, losing a job as a result of a stalker's conduct, or attending counseling sessions to handle the emotional strain of a stalker's harassment.
However the cumulative trauma of stalking is far greater than the sum of its common law tort elements. For that reason, a statutory civil cause of action for stalking should be enacted.California [1], Kentucky [2] Michigan [3], Nebraska [4], Oregon [5], Rhode Island [6], South Dakota [7], Texas [8], Virginia [9] and Wyoming [10] have enacted civil stalking statutes which expressly provide for a civil action based on stalking. Under these statutes, a stalking victim may recover civil damages from a stalker regardless of whether the stalker has been charged or convicted under the criminal law. Recoverable damages include expenses incurred by the victim as a result of a stalker's conduct, as well as punitive damages. Oregon, Wyoming, Michigan, Kentucky, Nebraska Rhode Island and Virginia (and probably California, which does not limit potentially recoverable damages), further provide that stalking victims may recover attorney fees and court costs.
The legislature should follow the lead of these states by enacting a statute that imposes civil liability for a pattern of conduct intended to follow, alarm or harass the victim and causing the victim to fear for her own safety of the safety of an immediate family member, with out regard to any criminal prosecution that may or may not occur as a result of the conduct. The statute should provide for the recovery of compensatory damages, punitive damages, reasonable attorneys fees and costs as do the majority of the statutes passed in these states.
A statute creating civil liability for stalking may provide for far more civil remedies than just monetary damages. In one particular case, the key to the settlement (in addition to $300,000) was the agreement by the parties to a lifetime restraining order. Such a restraining order was a remedy a court does not have the authority to impose, but if the parties agreed to the provision, it would be enforced by the court as part of the settlement.
By Jeffrey Dion, Esq.
Director, National Crime Victim Bar Association
Civil action for stalking.
A. A victim has a civil cause of action against an individual who engaged in conduct that is prohibited under § [criminal stalking code], whether or not the individual has been charged or convicted for the alleged violation, for the compensatory damages incurred by the victim as a result of that conduct, in addition to the costs for bringing the action. If compensatory damages are awarded, a victim may also be awarded punitive damages.
B. As used in this section:
"Compensatory damages" includes damages for all of the defendant's acts prohibited by § [criminal stalking code]
"Victim" means a person who, because of the conduct of the defendant that is prohibited under § [criminal stalking code], was placed in reasonable fear for his own personal safety or for the safety of a minor child of whom the person is a parent or legal guardian.
C. No action shall be commenced under this section more than [personal injury statute of limitations in that state] years after the most recent conduct prohibited under § [criminal stalking code].
A Statutory Civil Cause of Action for Stalking
Stalking is a crime that is often difficult to prosecute. The nature of stalking allegations are sometimes not easily substantiated to meet the prosecution's burden of proving the case beyond a reasonable doubt. Prosecutors often struggle to convince the judge or jury of the potential dangerousness of a stalker's behavior, and prove that it is the context in which individual, often innocuous and non-criminal, acts occur is what makes stalking a crime. Evidentiary issues also make criminal cases more difficult because physical or corroborating evidence of a stalking may not be readily available. As a result, judges and jurors are often unable to determine whether a stalker's conduct was, in fact, an act of stalking or simply an unintentional encounter with the complainant. For that reason, stalking is sometimes more easily pursued as a civil action rather than a criminal prosecution. A civil stalking statute would provide a crucial legal option for stalking victims when the criminal justice system is not responsive or is unsuccessful in obtaining a conviction, and may be more effective than criminal prosecution in lowering the number of stalking incidents.
Even upon a successful prosecution, civil actions provide a means of recourse in addition to the criminal justice system. Other available remedies, such as restraining orders, may not effectively abate stalking conduct, leaving victims with no alternative but to wait for a stalker to act in a more severe and dangerous manner. Civil statutes provide stalking victims with a cause of action for monetary losses incurred as a result of a stalker's conduct. These losses may include the cost of implementing security measures to combat a stalker's threats, losing a job as a result of a stalker's conduct, or attending counseling sessions to handle the emotional strain of a stalker's harassment.
However the cumulative trauma of stalking is far greater than the sum of its common law tort elements. For that reason, a statutory civil cause of action for stalking should be enacted.California [1], Kentucky [2] Michigan [3], Nebraska [4], Oregon [5], Rhode Island [6], South Dakota [7], Texas [8], Virginia [9] and Wyoming [10] have enacted civil stalking statutes which expressly provide for a civil action based on stalking. Under these statutes, a stalking victim may recover civil damages from a stalker regardless of whether the stalker has been charged or convicted under the criminal law. Recoverable damages include expenses incurred by the victim as a result of a stalker's conduct, as well as punitive damages. Oregon, Wyoming, Michigan, Kentucky, Nebraska Rhode Island and Virginia (and probably California, which does not limit potentially recoverable damages), further provide that stalking victims may recover attorney fees and court costs.
The legislature should follow the lead of these states by enacting a statute that imposes civil liability for a pattern of conduct intended to follow, alarm or harass the victim and causing the victim to fear for her own safety of the safety of an immediate family member, with out regard to any criminal prosecution that may or may not occur as a result of the conduct. The statute should provide for the recovery of compensatory damages, punitive damages, reasonable attorneys fees and costs as do the majority of the statutes passed in these states.
A statute creating civil liability for stalking may provide for far more civil remedies than just monetary damages. In one particular case, the key to the settlement (in addition to $300,000) was the agreement by the parties to a lifetime restraining order. Such a restraining order was a remedy a court does not have the authority to impose, but if the parties agreed to the provision, it would be enforced by the court as part of the settlement.
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