By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Elder Abuse Attorney
Over the next couple of blogs, I am going to discuss with you the basics of the Prevention of Domestic Violence Act (“PDVA”) in the context of an elder domestic violence case where two brothers went after each other over how to take care of their aging parents. The case is R.G. v. R.G.
As an overview the PDVA was amended in 2015. One of the biggest changes to the law was the definition of a victim of domestic violence. The Act now applies to any person over 18 years of age, with the exception of emancipated minors, who are subjected to domestic violence by a “spouse, former spouse, or any other person who is a present household member or was at any time a household member.” The definition of a victim used to be “any person who is or was a present or former household member” so courts struggled to define what a “former household member” was, focusing on the past domestic relationship that could give rise to abusive and controlling behavior. Now the definition is more expansive. In this case, since the brothers were living apart, the brother-brother relationship was debatable under the old statutory definition, but now the court felt their relationship was firmly within the protections of the law.
In order for a court to enter a restraining order, the victim of domestic violence must prove two things. First, there must be what is known as a “predicate act” of domestic violence committed by the perpetrator. The statute lists specific crimes, and a court must find that a violation occurred to satisfy the first prong of the test. These “offenses” include:
- Terroristic threats
- Criminal restraint
- False imprisonment
- Sexual assault
- Criminal sexual contact
- Criminal mischief
- Criminal trespass
- Criminal coercion
- Contempt of a domestic violence order that constitutes a crime or disorderly persons offense
- Any other crime involving risk of death or serious bodily injury to a person
Once the court finds an offense occurred, it must then examine the parties’ relationship to determine if the safety of the victim is threatened and a restraining order is necessary to prevent further abuse to the victim. The relationship issue does come into play, but only to the extent whether the victim is prone to another act of domestic violence.
In an earlier blog, I talked about domestic violence in the context of the elderly mother, and of an adult son who was abusing her, causing her distress. In that case the court entered a restraining order and ordered the son to leave the home immediately. The PDVA has been judicially found to apply to the elderly and acts of violence against them by someone special in his or her life. In its legislative findings, the Legislature declares that the elderly or disabled “are at risk because of incidents of reported and unreported domestic violence, abuse and neglect which are known to include acts which victimize the elderly and disabled emotionally, psychologically, physically and financially.” The elderly “frequently must rely on the aid and support of others” and “may find themselves victimized by family members or others upon whom they feel compelled to depend.” So the law doesn’t just apply to spouses or those in a toxic relationship. A caregiver could be found liable if he or she harasses her client and takes advantage of him or her. There is another criminal statute that would apply here called “endangering welfare of elderly or disabled,” which states that someone who has a legal duty to care for someone 60 years of age or older that “abandons the elderly person or disabled adult or unreasonably neglects to do or fails to permit to be done any act necessary for the physical or mental health of the elderly person or disabled adult.” Our Legislature has taken care of the elderly, ensuring that any act committed against one of them will be dealt with severely.
It is against this legislative and judicial backdrop that I will consider the facts of R.G., which I shall do in my next blog.
To discuss your NJ Elder Abuse matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.