Back in June, a New Jersey judge declared the state’s Prevention of Domestic Violence Act to be unconstitutional. Judge Francis B. Schultz, of the Superior Court in Hudson County, determined that it was too easy for someone who claimed domestic violence to get a restraining order.
The ruling was controversial. When I first read about the case, I was astounded that a court would take such a stand against domestic violence victims. Sandy Clark, associate director of the New Jersey Coalition for Battered Women, considers New Jersey’s law to be among the best in the country, according to NJ.com.
New Jersey’s law
The Prevention of Domestic Violence Act is strict. Some of its provisions include:
- Police must respond to calls of domestic violence victims.
- If there are any signs of physical injuries the police must arrest the abuser.
- Police may also arrest the abuser without witnesses or signs of physical injuries.
- Police are required to give victims information about their rights and to help them.
- Temporary restraining orders (TRO) may be issued by the superior court or a municipal court.
- A domestic violence hearing must be held within 10 days of issuing the TRO.
At the domestic violence hearing, the judge may grant substantial relief to the victim, including:
- Temporary custody of children
- Monetary compensation
- Barring the defendant from the home, regardless of who owns or leases it
- Prohibiting the defendant from any oral, written, personal or other form of contact with the victim and others, including children
Violating due process
The law allows the judge in the domestic violence hearing to make his or her decision based upon the “preponderance of evidence.” That’s where Judge Schultz had a problem. He wrote that this violates the defendant’s right of due process, and that the standard should be “clear and convincing evidence,” which is more difficult to achieve.
In his 21-page opinion on Crespo v. Crespo, Judge Schultz wrote, “It is well-established that a parent’s right to the care and companionship of his or her child is so fundamental as to be guaranteed protection under the First, Ninth, and Fourteenth Amendments to the United States Constitution.”
He continued, “That a fundamental right could be forfeited as a result of a rapidly calendared, summary hearing without discovery, where the only protection afforded the defendant is the ‘mere preponderance standard’ clearly offends the Due Process Clause of the Fourteenth Amendment.”
Quite frankly, given that there are people who falsely accuse their partners of domestic violence, the judge’s arguments make sense.
Battle of the sexes
According to NJ.com, women’s rights groups and the Attorney General’s Office are preparing to challenge the ruling. It appears that the case may be headed for the New Jersey Supreme Court.
Others considered the ruling a victory for men. An article posted on the DailyRecord.com declared that Judge Schultz should be considered an American hero.
“He stood up against the powerful feminist-controlled domestic violence machine and ruled that the New Jersey domestic violence statute is unconstitutional, and that people’s 14th amendment rights were being violated. Judge Schultz could have taken the politically correct route; he did not.
“The state Attorney General’s Office, in league with the battered women’s groups, has come out against this ruling and plans to appeal to the state Supreme Court. These two ‘partners in crime’ are yelling that the sky is falling because a court ruled that the standard of proof is unconstitutionally too low.”
The issue is being cast as today’s battle of the sexes. Unfortunately, people on both sides are fighting the wrong battle.
Men and women perpetrators
Battered women’s groups argue that female victims, and their children, need to be protected from abusive men. Father’s rights groups argue that women file false abuse complaints simply to be vengeful, and get away with it. They both accuse divorce and child custody lawyers of using abuse allegations as a strategy to win their cases.
They’re all right some of the time. None of them are right all of the time.
Lovefraud has heard from plenty of women who were seriously abused by male partners. And we’ve heard from plenty of men who were abused by female partners—including physical violence.
We’ve heard stories of abusive men manipulating the legal system to get children taken away from battered mothers. And we’ve heard stories of men fighting to get custody of their children from abusive mothers, facing judges who believe that mothers simply do not harm their children.
Sociopaths and domestic violence
Dr. Liane Leedom says that half of domestic violence perpetrators are sociopaths, and the other half have sociopathic tendencies.
Sociopaths, as Lovefraud readers well know, are both men and women. And whether male or female, they are equally vicious and destructive.
So this is not a battle of the sexes. The real struggle is between sociopaths and their victims; between people who have a conscience and those who do not.
If you’ve been a victim of domestic violence, or have been falsely accused of domestic violence, please tell Lovefraud about your experience with law enforcement and the courts. Did the police and/or courts act appropriately? Were they able to determine who was telling the truth? Why or why not?
Please don’t use any names, although you may identify the jurisdiction (county or state) if you want.
Maybe I’m just too Irish, or too country, or maybe I just grew up with too many boys, but there is a part of me that would much rather have a little violence in my life than that cold indifference so prevalent these days. I’m not talking real violence, like wife beatings or knock down drag outs, but a little pushing and shoving from my husband would never have me running to the cops. I would feel better if he yelled at me or even swung, than to have him every so calmly, cooly, indifferently walk away and brush me off like a piece of lint. I don’t know how people manage or even expect to keep their cool no matter what evil horrible things are being done to and said about them. I am a person with a very slow temper, but when I am good and mad, people stay out of my way, because I want justice, and if it’s slow in coming it becomes a slow burn in my gut, that just never quits till it sees the offender punished or at least denounced. How did we become such a nation of pansies? I know I’m going to catch hell from all of you for this post, but seriously….
Anyhow James you are totally right, we shouldn’t touch each other that way. But sheesh, shit happens.. we aren’t robots. I would never call the police on my spouse unless I was truly convinced he was out of control and that the relationship was likely not salvageable.
“It is well-established that a parent’s right to the care and companionship of his or her child is so fundamental as to be guaranteed protection under the First, Ninth, and Fourteenth Amendments to the United States Constitution.”
If there are any lawyers out there would you please analyze this statement. A parent has a right to have a child to use for companionship?
Parent’s right to the care of his or her child… What does this mean? The child cares for the parent?
Someone please enlighten me and how does all this go along with the best interest of the child? My daughters both love me very much, but as teenagers I think they would be upset to know that the government mandates them to be my companions! Teenagers of the nation you might want to consider a revolt against this one.
Another thought-
In many places in the world women have no rights and so are subjected to use and abuse. This was true in America until the 1900s. The first case of marital rape was not until 1978. Here is a passage from an article on marital rape:
“Sexism is at the heart of marital rape, just as it is at the heart of most forms of sexual violence. The widespread idea that a husband has a right to sex, and has a right to use his wife’s body for this purpose, makes it difficult for many in
mainstream U.S. culture to recognize sexual coercion in marriage. How can a husband be guilty of taking something that belongs to him? Often the marriage vows are seen as giving contractual consent to sex; hence the crude joke “if you
can’t rape your wife, who can you rape?” People may think of marital rape as just a bedroom squabble: he wants sex, she’s not in the mood, he wins. The Judeo- Christian and Western European idea that women aren’t supposed to enjoy sex,
but are just supposed to put up with it, adds to the confusion. All these ideas are based on the assumption that a man’s needs and desires are more important than a woman’s.”
If we consider the idea of children’s rights, then we see how we are still in the early stages of our evolution. Children currently have few rights. Our laws do not yet reflect the state of our developmental science. Developmental science shows that what a person can become in life is dictated by an interaction between genetics and early environment. Does a child have a right to the best environment the most healthy parent can provide? The answer to this question will mean life success or life failure for many children.
The issue of our state institutions is also affected by our view of children’s rights. If children had rights then the government would not be allowed to provide an excellent eduaction to economically advantaged children while depriving economically disadvantaged children of a basic education. In my state (CT) economic segregation and discrimination exists in schools.
As our culture advances we will have to come to a concensus about children’s rights. If children have a right to be optimally nurtured and to grow up free from exploitation and abuse then they have a right to be protected from sociopaths, even when the socioapths are their parents.
Dr. Leedom,
I’m not an attorney, but I believe he is saying each parent has a fundamental right to parent, i.e., care for and spend time with the child/children, and that right should not be removed by merely a “preponderance of evidence” but by “clear and convincing evidence,” changing the statute to a higher standard before removing the accusing parent along with the children from contact with the accused abuser in allegations of domestic abuse cases.
It would give the accused more protection, would it also generally improve the situation for the children caught in the middle while the courts are assessing fault?
Benz
Dr. Leedom, a man recently said to me ‘women have never had it so good’! I said to him that there are swathes of women in low pay, single parents, abused, exploited etc. I said to him, that is not good. Society on the whole still does not respect women and if you are an older woman, you are respected even less.
Dr. Leedom, I’m also NOT an attorney, but I agree with you on this. The TEMPORARY order until a permanent order can be made after examining evidence that is “clear” would not “deprive” the parent of their “rights” except for a VERY short time.
As far as I am concerned NO PARENT has a “right” to anything concerning the child’s WELFARE. If a parent is abusing a child and/or the other parent, they forefit any “rights” they have and the RIGHT of the child to protection should be paramount above all.
The “politically correct” notion that everyone can be “rehabilitated” and that these “parents” have a “right” to be with their children are what led to Dr. Amy Castillo’s children being KILLED BY A PSYCHOPATH.
I realize that a child does better with two loving parents than with only one parent, but they sure don’t do well at all with an abusive parent in the mix. The statistic is 50% or thereabouts for divorces of first marriages and many of those marriages that end in divorce have children. I’m not sure what percentage of those people are psychopaths, or high in psychopathic traits but there ARE some normal parents in the divorces I am sure, where a reasonable visitation and custody is worked out, but too many of them are not “reasonable” and when that is the case, the CHILDREN are the victims for parents using them as clubs to hurt the other parent with, out of revenge and anger.
In the history of our culture, in the past if a woman had a child out of wedlock, she was presumed to be an “unfit” parent by the fact that she had the child. The child’s custody could be awarded to the FATHER (even if he was a married man) and the child bound out as an indentured servant for 30 years because his mother was “unfit.”
Men “owned” their offspring just as they “owned” a wife. In divorce cases in those eras (1700-1800s) the men generally got custody of the children if they wanted it.
Then later, in divorce cases custody of smaller children was given to the mother generally, and the man directed to pay support, with some visitation.
In a divorce case in 1905 that I am familiar with, because it was my grandfather’s parents, the children and the “work rights” to them were divided between the parents, with the wife getting custody of the children and the father getting a set amount of rights to work the 3 teeanged boys “when the mother wasn’t using them for her own crops.” She received a division of property equal to 1/4 of the marital assets (which on a hill country 40 acre farm weren’t much). Her husband was directed to build her a house on her 10 acres. She died before this house was built though, and the property and the “work rights” to the boys reverted to their father.
Homeless and parentless children well up into the early 1900s were “indentured” or turned over to the “county poor farm”. Indenture in these days was more or less a “work for food” program for these children. In going over some of these oldl “poor house” records, children would be there for a month or so (usually less) and then the county would “take bids” for their care. Low bid won. These children or able-bodied mentally retarded would then be used as labor on the farms of the “winning bidders'” land. Unless they were so severely beaten that bones were broken or eyes punched out, they had little or no recourse from the courts with their new “owners.”
Any able bodied person in a “poor house” was expected to work and help out on the poor farm’s crops and gardens. Yearly reports (still obtainable up into the 1930s) would list inmates by name, condition, how much they were able to work, and potential dispositions of them–i.e whether they could be “farmed out” to someone else rather than the poor house itself. The main purpose of this action was to keep the cost for supporting these people as low as possible for the county. Pest houses such as those that were available for homeless and familyless people with TB were even worse. My grandfather’s brother died in one in 1920 and his letters describing the conditions still make me cry today when I read them.
We have made great strides in so many ways today from those days, but in other ways, we are still operating under some of the same principles we did then. Descriptions today of “foster care” and how it operates will make the hair on the back of your neck stand up and you grind your teeth.
The family courts as well, and the whole system of law enforcement, social work, legal system, prison system, etc. needs a complete overhaul. Thanks to the apparently growing number of psychopaths and UNREALISTIC expectations that “there is rehabilitation for everyone” DV continues to flourish. I can’t say it is “worse” than before, but it sure in my opinion isn’t much better.
I still grind my teeth thinking that our local county jail put my DIL in a DV shelter when she was released from jail after SHE tried to kill my son…what were they thinking? She is somewhere between BPD and PPD, but no doubt at all that she is personality disordered.
It makes me wonder too, like with James’ description of his X “hurting herself” and then having him arrested, how many of the women taking up DV shelter beds are themselves personality disordered. It’s all a mess, in any case.
HI ALL I MUST SAY THAT I AM A LITTLE TWO SIDED ON THIS ISSUE………. AFTER A BREAK UP WITH MY S. MONTHS LATER I FOUND OUT HE GOT MARRIED AND YES I WAS SHOCKED SINCE IT WAS ONLY MONTHS I TRACKED HIM DOWN MADE A PHONE CALL TO HIS NEW WIFE INFORMING HER HER NEW HUSBAND OWED ME 6.000 DOLLARS……. AFTER A 2 HOUR PHONE CALL WITH HER I FOUND OUT HE WAS SEEING HER FOR THE 7 YEARS I WAS SEEING HIM . ANY WAY. SHE SAID SHE WOULD MAKE SURE I GOT MY MONEY AND HE CALLED ME AND WE HAD SOME WORDS. NO THREATS OR ANYTHING. 3 DAYS LATER THE COPS SHOWED UP AT MY HOUSE WITH AN ARREST WARRANT FOR HARRASSMENT AND A RETRAINING ORDER.
SO ALL HE HAD TO DO WAS WALK INTO THE POLICE STATION MAKE UP SOME LIES. AND I WAS ARRESTED. I HAVE NEVER BEEN IN TROUBLE I WAS TRAMATIZED….. AFTER GOING TO TRO HEARING JUDGE THROUGH IT OUT…. AND THEN THE HEARING FOR THE HARRASSMET THE S DIDN’T EVEN SHOW UP.IT WAS DISMISSED BUT STILL I HAD AN ARREST RECORD. I SUED HIM FOR THE MONEY HE DID NOT ANSWER THE COMPLAINT . SO I AM IN PROCESS OF GETTING A DEFAULT JUDGMENT AGAINST HIM FOR THE 6.000 PLUS LAWYERS FEES ECT. I ALSO HAD TO PAY TO GET MY RECORD EXPUNGED SINCE I HAVE A STATE LICENSE TO WORRY ABOUT.
SO I FEEL IF THERE IS SUFFICIENT EVIDENCE FOR DOMESTIC VIOLENCE THEN THERE SHOULD BE ACTION . BUT IN MY CASE IT WAS TOO EASY FOR HIM… SO I FEEL THE SYSTEM WAS ABUSED……….. THANKS FOR LISTENING.
Dear Nightmare,
In a situation like that the police SHOULD PROSECUTE HIM for “bearing false witness” and put his butt in jail, but unfortunately, they are “pleading down” big felonies so what are they going to do, turn a bank robber loose so that they can free up a jail bed for your X? Probably not.
Personally, I think you should have had a chance to be heard before a judge before you were arrested, but that’s just me.
Anyway, sorry about your problem. I hope you get a judgment against him and that you can collect it.
BTW, welcome here. Glad you have come, sounds like this is the right place for you—and as Aloha says “stay a while.” No thanks needed for “listening” that’s what we do, and we’ve all had P-experiences so there’s no trouble with your story sounding “unbelieveable” here–no matter how bad it is!
Welcome nightmare.. my husband had me arrested for harrassment as well, just for calling the number he gave me, (apparently it actually belonged to his bosses girlfriend of all people). It was thrown out but I was really traumatized as well because I am extremely honest and law-abiding. The whole process of the divorce I felt made a mockery of our marriage and made our family a laughing-stock in our tiny town. I moved away finally, haven’t been back since either. I was just lucky I stuck up for myself and knew the judge quite well.
Very nice….
Your way of expression is simply super…
I think I got what i need…..
Thanks for your insightful post…
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AleX
New Jersey Drug Treatment