Prior History of Domestic Violence Must be Written into Restraining Order

Testifying in a Final Restraining Order (FRO) hearing about past incidents of domestic violence without those incidents being written into the body of the Temporary Restraining Order (TRO) is a violation of the defendant’s due process rights, according to a recent New Jersey court case. In M.K. v. A.K, the Appellate Court in an unpublished decision, reversed the issuance of a Final Restraining Order against a woman, because the alleged victim testified during the FRO hearing extensively regarding past incidents of domestic violence. These incidents were not recorded in the TRO, thereby not giving the defendant sufficient notice that she would need to prepare her defense with regard to these allegations. This violated her constitutional right to due process of law.

As the court found, “…in the guise of providing ‘a little background information,’ plaintiff was allowed to testify at length to an escalating course of conduct, which the court found included threats and harassment constituting domestic violence, not included in the complaint. That was not fair to defendant and deprived her of her right to notice and to a fair opportunity to defend herself against plaintiff’s claims.”

Clearly, it is essential to amend the TRO to include alleged prior incidents of domestic violence if the original TRO did not include these incidents, in order for the courts to view the defendant’s constitutional rights as protected.

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