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Supremes will determine how domestic violence is handled in NJ

Photo Credit: Cliffview Pilot

A North Bergen man has convinced New Jersey’s Supreme Court to determine the level of evidence needed for someone applying for domestic violence restraining orders to keep his or her spouse away.

Anabal Crespo claims he was denied due process because his wife, Vivian, obtained an order under the Prevention of Domestic Violence Act — which requires a preponderance of evidence. A local Family Court judge agreed that the penal-type consequences violate the U.S. Constitution’s 14th Amendment and weren’t fair to Anibal Crespo.

A group of appeals judges reversed his decision, however, arguing that to require clear and convincing evidence “would saddle victims of domestic violence with a burden that would often foreclose relief in many deserving cases.”

Anibal Crespo’s attorney argued his client’s case to the state’s highest court on Wednesday.

The lawyer’s basic question: Does the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33, improperly convert criminal matters into civil proceedings, and is the Act unconstitutional because it requires a “preponderance of the evidence” rather than a “clear and convincing evidence” standard of proof?

Anibal was living upstairs from Vivian in March 2004, when, his ex-wife said, he trapped her arms in his electric car window when she tried to talk to him about unpaid child support.

Both had divorced in 2001 after 17 years of marriage, and it was an advantage for both that they were able to raise their three children in the same two-family house.

Anibal Crespo responded that his ex-wife attacked him while he was in his car and any injury she suffered came when he closed the car window to protect himself.

Once she showed the judge photos of her injuries in filing a restraining order, however, her ex was forced to move.

The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property” without due process. In turn, the state Appellate Court found that state lamwkers must give domestic violence victims “the maximum protection from abuse the law can provide.”

At the same time, Vivian Crespo’s attorney has argued through the court system that the “preponderance standard” better protects domestic violence victims because such allegations are often “difficult to prove due to the[ir] private nature,” and there are “usually few, if any, eyewitnesses to marital discord or domestic violence.”

The appeals judge, in turn, went with her ex-husband’s argument, noting that “the vindication of the Act’s important goals often depends upon the ability of a victim to obtain relief in situations where proof is scarce, parties’ contentions are in sharp contrast, and a judge may often be relegated to deciding the case based solely on credibility findings.”

“Domestic violence is a serious problem in our society,” the appeals judges wrote. “Each year, three to four million women from all socio-economic classes, races, and religions, are battered by husbands, partners, and boyfriends.”

However, they were left with the Crespos’ arguments against one another, each alleging that the other had treated him/her unfairly, rather than specific evidence the ex-wife as in any danger. As a result, Crespo had to leave the two-family house he called home.

The upshot “damages his reputation, and interferes with his right to raise his children, to speak freely with his wife and children, and to enjoy the marital home,” came the counter-argument.

The issue, the appeals judges ruled, “is purely academic.”

Labeling him an abuser put Crespo’s name on the judiciary’s Domestic Violence Central Registry for future judicial and law enforcement action, if necessary, they added.

According to his attorney, New Jersey’s Domestic Violence Act authorizes a [Family Court] judge to “make a finding of fact at a summary proceeding —  that an individual committed an act of domestic violence.”

The judge is also given the authority “to penalize a defendant for being an abuser,” and can “impose basically everything but prison time — and even that can be imposed if the defendant deviates just slightly from the order,” the lawyer noted.

As a result, the attorney wrote, the Family Court section “has been transformed into an alternative to the criminal courts.”

The appeals judges countered that Family Court rulings are are “the societal condemnation and stigma that accompanies the conviction that most of all distinguishes the civil from the criminal process.”

“The power to grant a permanent restraining order — that is, an order lasting the lifetime of a defendant that enjoins him from simple activities like visiting his children in the house where they live, visiting them at school, or going to religious events like First Communions, goes far beyond the type of remedies traditionally granted by courts of equity,” the judges determined. “Yet this is precisely the scope of the injunctions imposed, even for the lowly crime of harassment.

“This is certainly overkill,” they wrote.

Unfortunately, the judges said, this turns the mother into “primary caregiver and dad as occasional visitor — a precedent which harms fathers’ ability to gain joint custody of their children in divorce proceedings.”

“These orders are frequently used as a quick and dirty custody hearing,” one attorney argued. “The children often have no understanding of why they are being kept from their father because the father cannot even speak to them.

“[The] injustices suffered by Anibal Crespo and thousands of others just like him demand to be recognized.”

In 2006, the most recent year for which statistics are available, 37,889 new domestic violence cases were filed, with 32,360 temporary restraining orders and 9,219 final restraining orders granted, state records show.

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