Judge Marie Lihotz wrote the decision barring manditory counsel for domestic violence cases.
Carmen Natale
Neither indigent plaintiffs seeking domestic violence restraining orders nor indigent defendants opposing such orders are entitled to legal representation at taxpayer expense, a state appeals court held Thursday in a precedential decision.
The kinds of relief available to domestic violence victims do "not result in a 'consequence of sufficient magnitude' to warrant the mandatory appointment of counsel," the Appellate Division ruled in D.N. v. K.M/K.M. v. D.N., A-3021-11 and A-3022-11.
New Jersey's Prevention of Domestic Violence Act does not impose incarceration and is essentially remedial in nature, empowering courts to restrain contact with victims, modify parenting time, restrict the right to buy or carry a gun, bar use of a particular residence, mandate counseling and impose civil fines of up to $500, the panel said.
The court took note that a right to appointed counsel has been recognized in some types of civil proceedings, for example, proceedings to classify sex offenders under Megan's Law, to terminate parental rights and to hold nonpaying child support obligors in contempt.
But because the PDVA is designed to protect victims from future violence, it "does not pit the power of the State against the defendant," wrote Judge Marie Lihotz, joined by Judges Mitchel Ostrer and John Kennedy. "Rather, a putative victim of domestic violence presents evidence to the court and seeks available relief, not unlike many other remedial statutes designed to protect a specific class of plaintiffs from the wrongful conduct of another."
In contrast to other remedial laws, domestic violence orders require a finding that the defendant committed a predicate criminal offense, such as assault, harassment, stalking, kidnapping or homicide, but the curative nature of the law still governs, Lihotz said.
With regard to counsel for domestic violence plaintiffs, the court said the Legislature "did not intend to invoke the power of the State to prosecute civil requests for restraining orders."
The ruling arose from a pair of consolidated cases brought by the same woman, D.N., whose request for a final restraining order against her former lover, K.M,. was denied, while K.M. succeeded in obtaining one against her.
The couple had a teenage child and had lived together in Evesham Township but were ending their relationship when the domestic violence occurred.
A consent order they signed on Oct. 25, 2011, gave them joint legal custody and provided the child was to live primarily with K.M. and K.M. would stay in the house, which he owned.
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