Domestic Violence and Due Process: What You Need to Know


It might not seem fair. You and your husband have a few choice words. As far as you’re concerned, there’s not even a hint that you seriously intend to hurt him. Okay, so maybe you did threaten to clobber him over the head with the iron skillet.  Not a day goes by before you’re served with a temporary restraining order. Meanwhile, you can’t help but wonder Aren’t domestic violence victims entitled to due process?

In the first place, the formality of the term “due process” might warrant some explanation. Interestingly enough, it is called for in two separate amendments of the United States Constitution. It assures defendants that they are entitled to reasonable measures when confronted with prospective deprivation involving their “life, liberty, or property.”

That said, a temporary restraining order may be granted when there is an emergent situation. It is up to the court to safeguard the victim from potential harm. However, the consequences of a final restraining order can adversely affect the defendant. Often, there are criminal charges associated with domestic violence orders.

There’s no doubt that domestic violence victims should be entitled to protection. However, that doesn’t negate the rights of domestic violence defendants to due process. In fact, a recent New Jersey Appellate decision confirmed this very premise.

Fundamental Due Process Rights

The court’s opinion in MDC v. JAC is unpublished, which means that it is not precedential law. Initials are used in the decision for purposes of anonymity. The facts of the case offer some insight regarding the defendant’s entitlement to due process in a domestic violence matter.

All things considered, it is up to the court to ensure that fair procedures are followed for both parties. In this particular matter, MDC and JAC were a married couple obtained a temporary restraining order. She claimed that JAC assaulted her and made terroristic threats.

When the two appeared for the hearing regarding the final restraining order (FRO), the judge asked both parties if they had witnesses.  MDC advised the court that her witness was present. In the meantime, JAC said she intended to call her mother as her witness – but she was not able to make the court appearance. The trial judge informed JAC that he could not entertain the testimony unless her mom were there in person. He did not offer the defendant the opportunity to adjourn the case.

Although there is no indication that either party was represented by legal counsel, it appears that JAC handled her own defense. MDC provided the court with her version of the events that led to the request for the restraining order. In fact, at the judge’s prompting, she also added incidents, not in the original complaint.

At the conclusion of MDC’s testimony, the judge gave JAC the opportunity to cross-examine her. During the cross-examination, the court interrupted the defendant several times. Ultimately, JAC became frustrated and stopped questioning the plaintiff.

JAC testified on her own behalf and denied the allegations listed in the request for the FRO. However, the defendant admitted to a previous act of domestic violence. JAC testified that MDC “had psychological issues, a history of self-harm, an addiction to pain medication, and hoarded thirty cats in the marital home.” The judge denied MDC’s request to present videos and pictures that supported her assertions.

The court listened to the testimony presented by the plaintiff’s witness. At the conclusion of the case, the judge found the plaintiff and her witness more credible than the defendant. The restraining order was granted.

Restraining Order Reversed

On appeal, MDC cited three reasons that the FRO should not have been granted. In the first place, the defendant was not offered the opportunity to adjourn the matter to allow for her witness to appear.

Next, MDC said the court denied her the right to present exculpatory evidence. Lastly, JAC was permitted to claim additional acts of domestic violence – without giving MDC the proper notice to respond to the accusations.

Upon review, the Appellate Division concluded that MDC should have been offered the opportunity to adjourn the case based on her witness’ unavailability. Additionally, the court should have given the defendant some leeway in cross-examining JAC.

When the trial judge refused to allow MDC to present the videos and pictures into evidence, he offered no reason for his denial. Additionally, the plaintiff introduced other alleged acts of domestic violence without amending the complaint. In both cases, this represented a refusal of due process. Therefore, the FRO was reversed.

State of New Jersey Domestic Violence Procedures Manual

The State of New Jersey Domestic Violence Procedures Manual provides advice to court staff regarding domestic violence matters. Under current guidelines, it is customary to provide plaintiffs with information regarding their rights and the procedures for restraining orders.

After consideration of this matter, the Appellate Division suggested that the manual needs to be revised to advise defendants of their rights and the FRO process.

Contact Us

Have questions regarding a domestic violence matter? At the Law Offices of Sam Stoia, we have experience representing victims and accused perpetrators. Contact us to see how we can help.