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Restraining Orders Unconstitutional in New Jersey?

By       Message David R. Usher       (Page 1 of 3 pages)     Permalink    (# of views)   No comments

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For many years, domestic violence laws have been carelessly abused at both the federal and state levels. Gary Hession, J.D., just nailed the rabid possum to a tree in his New American cover story "Restraining Orders Out of Control"-.

Or ask Kathleen Parker, who points out in her new book Save The Males, "In our rush to save those women who desperately need saving, we've criminalized ordinary men who may never have raised a hand against their spouse "- this often takes place with little due process, without proof of guilt "- or any chance to defend himself"-.

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The principles of national domestic violence policy were established in the Violence Against Women Act (VAWA), a law crafted by the ABA and steered by the ABA Commission On Domestic Violence (CODV). Federal provisions were subsequently implemented at the state level via pass-through funding requirements and by ensuring that federal funding is channeled only by radical feminist non-governmental organizations.

The thinking of the CODV was recently found unethical and unworthy for use in policy in RADAR's recent report "Myths of the ABA Commission On Domestic Violence"-.

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In June, New Jersey trial court judge Francis B. Schultz did his judicial homework and found portions of the New Jersey domestic violence laws are unconstitutional. Attorney David Heleniak, who is also a board member of the True Equality Network, represented the husband in this ground-breaking decision.

In Crespo v. Crespo, Judge Schultz applied the Matthews-Eldridge balancing test to properly assess the standard of review required for these cases (trial court judges rarely do this on the notion that only high courts need weigh fundamental elements of due process). He found that since restraining orders impact constitutionally protected parental rights, the highest evidentiary standard of "clear and convincing evidence"- applies when determining if restraining orders are issued.

In his decision, Schultz also rejected a common practice of state legislatures who often improperly dictate evidentiary standards and due-process provisions to the courts. It is long held that the standard of review and procedural matters are exclusively the venue of the courts.

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The difference between applying the "preponderance of evidence"- standard and the strict-scrutiny "clear and convincing"- standard in domestic violence cases is important. The "preponderance of evidence"- standard, and the lower standard of review presently applied, encourages and rewards false assertions by trial lawyers or clients whose cases have little or no merit whatsoever. Under this standard, evidence is unimportant or even unnecessary. The "clear and convincing"- evidentiary standard brings evidence to the forefront of the decision. If evidence of past or future serious violence exists, a restraining order will be issued.

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David R. Usher is President of the ACFC Missouri Coalition

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