NJ Attorney Challenges Constitutionality of Restraining Orders
David Heleniak, a Morristown, NJ attorney, has filed a motion on behalf of his client, John Paulsen, to vacate a final restraining order (FRO) on the ground that it violates Paulsen's constitutional rights.
Heleniak gained recognition on the issue of domestic violence restraining orders with his 2005 law review article "The New Star Chamber: The New Jersey Family Court and the Prevention of Domestic Violence Act." More recently, in Crespo vs. Crespo, Heleniak won a landmark decision in which the Honorable Francis Schultz of Hudson County ruled that the criteria for a FRO must be "clear and convincing evidence" rather than a "preponderance of the evidence." That verdict made Crespo vs. Crespo a glimmering hope to anyone who was ever hit with a frivolous restraining order – until it was recently overturned by the New Jersey Court of Appeals.
"They were dismissive of the whole idea [that the NJ domestic violence statute could be unconstitutional]" said Heleniak. "In fact, they dealt with some of our best points in a footnote , in which they said they were unworthy of discussion. I think they're hoping the issues go away."
Heleniak, disappointed with the decision of the Appellate Division, has asked the NJ Supreme Court to take the Crespo case and has forged ahead with Paulsen in a similar action with a motion to vacate a domestic violence restraining order on constitutional grounds in the local Morris County family court.
"I believe their [the Appellate Division's] refusal to address some of the issues head-on affects their credibility. It just looks like they were ducking," said Heleniak. "But at some point the issues will have to be addressed at a high level. There are just too many cases out there with the same story – a restraining order handed down without sufficient evidence that ruins a man's life and the lives of his children."
Paulsen said that the FRO against him was nothing more than a tactical maneuver to gain an unfair advantage in the litigation process.
"The allegations of abuse against me that gave rise to the FRO were manufactured by my wife to gain a tactical advantage in a divorce that she had decided she wanted months before the allegations were made," said Paulsen. "In fact, she had surreptitiously had several meetings with her divorce attorney and was using the threat of a restraining order as a means of intimidation within our marriage for over a year before she used it as a first strike weapon in the divorce."
A recent analysis notes that unwarranted restraining orders create a "ripple" effect that can persist for many years, harming the alleged person's reputation, legal standing, security clearances, career prospects and financial status. In many cases, it also affects the person's relationship with their children, often causing devastating and permanent harm to that relationship.
(A Culture of False Allegations, http://www.mediaradar.org/docs/RADARreport-VAWA-A-Culture-of-False-Allegations.pdf.)
False allegations not only damage the individual falsely accused, they also affect other family members who may be barred from seeing a grandchild, nephew, or niece.
Reports regarding domestic violence restraining orders can be viewed at http://www.mediaradar.org/reports.php.
Date of RADAR Release: September 28, 2009
R.A.D.A.R. – Respecting Accuracy in Domestic Abuse Reporting – is a non-profit, non-partisan organization of men and women working to improve the effectiveness of our nation's approach to solving domestic violence. http://www.mediaradar.org