Richard S. Diamond Family Law Blog on Lawyers.com

In a thorough and detailed opinion, the New Jersey appellate division in the June 18, 2009 published opinion in Crespo v. Crespo, overturned a Hudson county trial court decision that the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to  -35 (“Act”) was unconstitutional, a decision that should come as no surprise in the light of previous case law upholding it. See Roe v. Roe,  253 N.J. Super. 418,  427 (App. Div. 1992).

The trial court judge had two main arguments as to why the Act was unconstitutional: firstly because the trial court believed that the Act violated the rules governing the separation of powers between the Judiciary and the Legislature; and secondly because the trial court believed that the Act violated litigants due process (procedural) rights by using a "preponderance of the evidence"  standard (lowest standard) as opposed to the higher "clear and convincing evidence" ( the standard used in criminal matters) for entry of a final restraining order (FRO).  Both arguments were found to be without merit by the higher court in their opinion.

In Crespo, the appellate panel noted that through the implementation of New Jersey Court Rule 5:7A, the Supreme Court had "enhanced" the procedural components set forth in the Act, and hence its exclusive constitutional authority over court practices and procedures had not been usurped by the Legislature.  The opinion noted that “[a]s Judge Pressler has correctly observed, Rule 5:7A "implements" the procedural components of the Act. Pressler, Current N.J. Court Rules, comment 1 on R. 5:7A (2009).  The appellate panel found “the argument that the various procedural aspects of the Act violate N.J. Const. art. VI, § 2 ¶ 3, to be utterly without merit”

Secondly, as to the argument that due process requires the higher standard of clear and convincing evidence i.e. evidence that is so clear, direct and weighty that a judge can come to a clear conviction without hesitancy, the appellate panel reviewed the due process criteria set forth in Matthews v. Eldridge, 424 U.S. 319 (1976) and noted that such a standard would foreclose relief in many domestic violence cases and this would be against the public policy of protecting victims.  The Crespo opinion, quoting Roe, concluded “that a standard more demanding than the preponderance standard "would undermine the social purposes of the Act."” Roe, supra, 253 N.J. Super. at 428.

Given the weight of legal analysis in this opinion, any argument that the New Jersey Prevention of Domestic Violence Act is unconstitutional has been unequivocally rejected.

The Crespo opinion did, however,  have one interesting practice point of note, namely the approval of Judge Dilts’ trial court opinion in Depos v. Depos, 307 N.J. Super. 396, 400 (Ch. Div. 1997), that where appropriate permission to obtain limited discovery can be sought from the court.

If you are the victim of domestic violence or have been served a temporary restraining order (TRO) you should consider hiring an attorney experienced in this area of the law at the earliest opportunity.


This post was previously published on my New Jersey Divorce Law Blog. For a consultation on any New Jersey family law matter please contact me at 973 379 9292. Further information on the law firm of Diamond & Diamond, P.A. can be found on our web-site.