Not Every Cloud Has A “Silver” Lining

The significant problem of domestic violence in society has long been documented. In New Jersey, the Courts struggle on a daily basis to address applications for Restraining Orders based upon Complaints alleging domestic violence. In those applications, a trial judge is required to perform what has become known as a Silver analysis, based upon the 2006 decision by the Appellate Division in the case of Silver v. Silver. This two-prong analysis requires the trial judge to determine if the alleged victim proved by a preponderance of the evidence that Defendant committed the predicate act of domestic violence and if a Final Restraining Order is needed to protect the victim.

Often, cases arise where the extrinsic facts can cloud a proper analysis and a trial judge may give too much weight to one prong of the analysis. The Silver court warned of this problem, noting that in many cases that the findings under the first prong of the analysis  make the findings under the second prong “perfunctory and self-evident”, but that a statutory analysis of the factors under the second prong must be made nonetheless.  However, in the recent case of D.H. v. C.H., the Appellate Division reversed a trial court ruling that dismissed an application for a final Restraining Order, noting that the trial Court did the reverse and minimized the findings made under the first prong of the analysis, focusing instead on the parties’ conduct after their separation and ignoring the findings that a predicate act of domestic violence that involved physical violence had occurred.

In D.H. v. C.H., in addition to a prior history of domestic violence, the Plaintiff alleged that Defendant grabbed her right arm, forcibly twisted it into her back and then pushed her to the floor while twisting her arm and placed his knees on her legs, so she could not get up. She alleged that Defendant released her after she screamed for help, but she felt excruciating pain in her wrist. She did not report the incident as Defendant threatened her life and to report her to immigration authorities. When a doctor inquired about her wrist during a routine medical appointment two months later, she revealed the incident to her doctor, was counseled to leave Defendant and moved to New York the following day where she had surgery on her wrist and obtained a New York domestic violence restraining Order which she later dismissed to file in New Jersey.

In denying the request for a final Restraining Order, the trial court focused on the fact that the parties did not have children together, that they lived together for two months after the incident, that Plaintiff did not file for the NY restraining Order until approximately six months after the incident and that their relationship was over so there was no need for contact between them. The Appellate Division reversed the decision of the trial court, noting that these findings under the second prong were insufficient to overcome the finding under the first prong of the Silver test that there was a predicate act of physical domestic violence and a history of domestic violence. The matter was remanded for the entry of a Final Restraining Order.

Once again, this ruling underscores the need for a knowledgeable, family-law attorney, well-versed in the law. Trial courts can make mistakes and when you are in court, you need an attorney that can immediately recognize those mistakes and seek corrective action or to present the case in such as clear and concise fashion under the law that minimizes the possibility for those mistakes to be made. While the appeal process exists to address errors made by the Court, appeals are expensive, time-consuming and not always successful, which makes it more important to choose an attorney that assures you the best chance for success. 

About the Author


John Nachlinger is a co-founder and managing attorney of Netsquire, a family law firm focused on streamlining divorces through effective mediation, settlement drafting, and court filing assistance. As a New Jersey Supreme Court Certified Matrimonial Law Attorney and Qualified Mediator, John guides couples toward equitable agreements without the cost and stress of litigation.

Recognized as a New Jersey Super Lawyer for over a decade, John’s client-focused approach aims to foster understanding during challenging transitions. With a background spanning top law journals, judicial clerkships, and boutique family law firms, John now applies his analytical skills to create workable solutions for all parties. His mediation services reshape the divorce journey by prioritizing compassion and compromise.

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