In L.B.G. v. A.T.G., an unpublished NJ appellate court decision on March 26, 2024, the court again considered the issue of right to counsel in a domestic violence matter. This is not the first time the higher court has considered this issue and the outcome is consistently the same.
The facts are fairly simple and unfortunately all too common. The parties appeared for the final restraining order hearing. Neither party had an attorney. The court told the defendant about what the implications of having a FRO against him would be, but did not tell the defendant that he had the right to counsel or ask if he wanted to retain an attorney.
The court directed the parties to make opening statements and allowed them to testify. The court did not tell the parties they could cross-examine each other or allow cross. The court did not tell them they could call witnesses. The court allowed the plaintiff to testify beyond the prior incidents without amending the complaint and giving the defendant and adjournment to prepare for the new allegations.
The court granted the plaintiff a Final Restraining Order.
On appeal, not surprisingly, the defendant argued that the trial court violated his due process rights. The appeals court noted that even though a person may not have the right to a free/appointed attorney in these matters, the most basic tenants of due process requires that the defendant understand that he has the right to retain an attorney before proceeding to trial. “That alone requires the FRO be vacated,” said the court.
The court went on to note the errors by the trial court commenting that by denying the defendant and opportunity to call witnesses or cross-examine the plaintiff that was a due process violation. The court further noted that the court erred in allowing the plaintiff to testify to incidents outside her complaint. The law is NJ is that the court can allow a plaintiff to testify to the prior history of domestic violence during trial, but not at the expense of the defendant’s due process rights.
Defendants must be advised of their right to obtain counsel before the court proceeds to a final restraining order hearing. If a final restraining order is entered a defendant faces several consequences: the payment of a fine; a presumption that the victim should have custody of the children; payment of counsel fees for the victim; payment of support or other damages to the victim; loss of firearms; entry on the NJ and National Domestic Violence Registry. This may impact the defendant’s ability to get a job. If there is a violation of the FRO the defendant will be arrested and face jail time. For these reasons, it is absolutely critical that the court advise the defendant of the right to counsel and grant an adjournment if the defendant asks.
While it is not certain that the outcome would have been different in this case if the defendant had an attorney, certainly the additional errors would not have occurred. An attorney would have known to object to the additional testimony of the plaintiff and to cross-examine the plaintiff.
If you have been served with a Temporary Restraining Order and the matter is scheduled for court, contact our office to schedule an appointment with one of the experienced attorneys at Baker Legal Group. Likewise, if you are plaintiff you also have the right to an attorney who will be able to help you prepare for the hearing and file an amended TRO if needed.