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Prevention of Domestic Violence Act Does Not Authorize Restraining Order Barring Defendant From Any Place Where Former Wife Located

The Appellate Division of our state Superior Court has held that a provision in a Final Restraining Order ("FRO") issued pursuant to the Prevention of Domestic Violence Act ("the Act") which bans a defendant from being any place where his former wife also happens to be located is too broad, and therefore not authorized under the Act.

In State v. S.K., the defendant was alleged to have violated an FRO -- which was previously granted to his ex-wife in 2005 -- simply by being at his children's soccer game, where she also happened to be at the time. There was no allegation of misconduct on the defendant's part, or even any accusation that he attempted to communicate with his ex-wife in any way; nevertheless, a complaint for violating the FRO (contempt) was issued against the defendant for just for being in the same place as his wife.

Although the defendant pleaded guilty to violating the FRO, the Appellate panel overturned the conviction based upon its conclusion that the Domestic Violence Act does not authorize such an overly broad provision in an FRO which prohibits a defendant from being wherever the victim happens to be located. The Act provides that a defendant may be restrained from any specified place that is named in the order and is frequented by the victim or family/household members, as well as future acts of harassment or stalking. Conduct, rather than location, is the focus of the restraint. The Court found that a defendant should not be prohibited from lawfully appearing in a public place solely because his ex-wife chooses to be in the same general location.

In other words, there must be some type of conduct on the part of the defendant that would trigger a violation of an FRO; just "being there," without any further indicia of knowingly violating the order, is insufficient to constitute a violation.

This is a significant decision for those charged with contempt under the Prevention of Domestic Violence Act.

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