Jodi Argentino, Esq.

Someone may need protection from another individual, but can they get a Temporary Restraining Order and/or Final Restraining Order in Family Court?

The Prevention Against Domestic Violence Act of 1991 (NJSA 2C:25-17) defines the individuals entitled to protection under the act, the offenses which qualify as domestic violence, and the penalties and protections which are allowable. I often get questions as to what kind of relationship qualifies for someone to receive protection under this Act, which are heard in the New Jersey Family Court, FV docket.

Over the years since the Act has been in place, the basics have been challenged and expanded based upon the uniqueness of different types of relationships so it’s best to have your personal situation analyzed by an attorney who has specialized experience and knowledge because your relationship may fit into a rubric that is a bit outside the box, but which still could entitle you to protection.

The basics as written in the statute, are that the victim entitled to protection must be 18 or older (or an emancipated minor) and that the alleged perpetrator of the domestic violence must be someone that fits into one of the following categories: a spouse (former or present) of the victim, a household member (former or present) of the victim, a person with whom the victim has or has had a child in common (or currently has a pregnancy in common), or someone with whom the victim has had a dating relationship.

The grey areas come in the space between those relationship designations. Here are some relational situations wherein we have experienced restraining orders throughout the years that may not fit squarely within the typical definition of the above categories:

  • The live-in partner of one parent of a child (such as a stepparent or unmarried but practical equivalent) vs. the child’s other legal parent. Is that technically considered having “a child in common?” I argue yes. The child is effectively cared for by the person even if there is no legal relationship.
  • Two individuals living in a boarding house with separate locked bedrooms but shared common areas. Is that a “household member?” I argue yes because it would seem the entire point of considering household members is the regularity of contact and sharing of space.

Probably the most debated idea is what constitutes a “dating relationship” – that great debate can be attributed to the fact that it requires an examination of the concepts of both “dating” and of “relationship.” The definitions of these subjective terms vary culturally, geographically, generationally, and socioeconomically, so there is really no one-type-fits-all definition.

  • In J.S. v. J.F., 410 N.J. Super. 611, 613 (App. Div. 2009)…the Appellate Court rejected the argument that if a relationship includes payment of consideration it would preclude the finding that there was a “dating” relationship. This overarching concept of payment-contingent relationships applies not only to that category for “dating relationships” (eg: for escorts, sex workers, companions) but also for certain “household members” (eg: nannies, housekeepers).
  • In S.K. v. J.H., 426 N.J. Super. 230 (App. Div. 2012)…the Appellate Court determined that “dating relationship” only applies if there is greater frequency and/or duration than a single date. However, I might argue that if there was a sexual relationship that the sheer level of physical intimacy or if there was significant virtual communication it could pull that couple into a “relationship” status, even if not considered “dating” within some generational definitions. We always have to examine any other communication and/or interaction between the parties to really flesh out the circumstances in light of the more recent caselaw.

There is also the question about whether parties in purely sexual relationships qualify under the statute in the “dating” category. Again, as is often the answer to a question involving Family Law, it depends.

  • The Court addressed sexual relationships in T.M. v. R.M.W., 456 N.J. Super. 446 (Ch. Div. 2017). There, before even deciding if domestic violence had, in fact, occurred, the Court had to determine if a relationship that was not emotionally intimate but rather purely sexual in nature would qualify as a “dating relationship” under the statute. Based upon the analysis from Andrews v. Rutherford, 363 N.J. Super. 252 (Ch. Div. 2003), wherein the Court noted there was a need to evaluate “a continuing, frequent and observable relationship with one another,” the T.M. v. R.M.V. Court found the parties had intermittent consensual sexual contact over the course of years and, as such, the relationship fell into the category of “dating relationship.”

What about people who met on an app such as Grindr or Tinder and have had intimate communications with each other, but never met in person? Is that a “dating relationship” under the statute? I would argue yes (actually, my yes is an educated guess because NJ Appellate Court already decided this one in 2020.)

  • In C.C. v. J.A.H., 463 N.J. Super. 419 (App. Div. 2020), the Appellate Court found that there should be an examination of the intensity and intimacy of the relationship even if there was no in-person interaction. In that case, there was the exchange of nearly 1300 highly personal text messages. This is an especially poignant example given the changes to the dating climate over the COVID pandemic, bringing virtual relationships even more to the forefront of the “dating” world.

This discussion includes just a few examples of how the Court has addressed some outside-the-box relationships. There are a plethora of different types of relationships that haven’t been fully explored in published caselaw: polycules, kink/bdsm play partners, swingers, at-home caregivers, and intergenerational households…just to name a few. Even if a specific judge in a specific court may not be familiar with different types of life/living circumstances, it doesn’t mean that individuals in those situations are not entitled to protections under the law. We must educate and advocate for recognition and protection.

If you have been a victim of violence and want to know if you are entitled to protection under the NJ Prevention of Domestic Violence Act, don’t just “google it.” These are complicated analyses and you don’t want to preclude yourself from needed protection based upon an internet search. If you sought help because you thought you would be entitled to protection and were denied, maybe someone got it wrong and an appeal or other action is necessary or available to you. Don’t give up.

Discuss your individual circumstances and options with an experienced and knowledgeable attorney – give AFL a buzz today at 973-744-2980.