By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Elder Abuse Attorney

In Part 1 and Part 2 of this series I introduced you to the Prevention of Domestic Violence Act as it applies to the elderly. Now after reviewing the facts of the case, I will discuss the process in greater detail.

The court spent some time on the issue of the admission of the prior restraining order.  When it comes to the admission of any type of evidence in a judicial proceeding, only relevant evidence is admissible.  Subject to some exceptions, most evidence is relevant.  One of the exceptions to the relevance rule is that prior crimes are inadmissible to show that a defendant has a propensity to commit the act he or she is alleged to have committed.  There are exceptions to this rule (like with most things in the law) and they include evidence introduced to show motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake as it relates to the case in point.

The Prevention of Domestic Violence Act allows a court to consider prior history of domestic violence between a plaintiff and defendant, including any orders entered against one by the other.  Because the defendant’s son, and not the plaintiff, requested the restraining order against the defendant in the other case, it would not be automatically admissible subject to evidentiary rules.  Since the previous restraining order was being used here to evidence a prior history of domestic violence, and no analysis was undertaken to show the evidence was introduced under one of the eight categories mentioned above, the Appellate Division found the evidence to be irrelevant.

In addition, because plaintiff testified that he heard that the defendant had a restraining order against him, the court also found the statements to be hearsay.  Hearsay statements are made out of court by a person and are offered for the truth of the matter they assert.  They are inadmissible unless they fit under one of the numerous exceptions.  Since the plaintiff had no direct knowledge, nor could he testify that he saw the abuse occur or proof that the restraining order was issued, the court held he could not testify on that matter.  While the defendant did acknowledge that a restraining order was entered against him, it was plaintiff that first introduced the court to the existence of the order, and because it was done so improperly, it could not be a part of the evidentiary record.  This finding led the judge to conclude there was prior history of domestic violence committed by the defendant, warranting a need for a restraining order.  However, because the finding was improperly made on evidentiary guidelines, and because it dealt with the defendant’s history with another person rather than the plaintiff, the court held that the second Silver prong of a need for a restraining order did not hold water, and found the restraining order improperly found.

The court could have stopped there and ordered the restraining order dismissed.  But it continued, and evaluated the first part of the Silver test, which was whether there was sufficient evidence to hold if one of the crimes that would trigger a restraining order could be found.  That part of the case will be discussed in my final blog.

To discuss your NJ Elder Abuse matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at  Please ask us about our video conferencing consultations if you are unable to come to our office.