Restraining Orders Unconstitutional in New Jersey?
For many years, domestic violence laws have been carelessly abused at both the federal and state levels. Gary Hession, J.D., just nailed the rabid possum to a tree in his New American cover story “Restraining Orders Out of Controlâ€.
Or ask Kathleen Parker, who points out in her new book Save The Males, “In our rush to save those women who desperately need saving, we’ve criminalized ordinary men who may never have raised a hand against their spouse … this often takes place with little due process, without proof of guilt … or any chance to defend himselfâ€.
The principles of national domestic violence policy were established in the Violence Against Women Act (VAWA), a law crafted by the ABA and steered by the ABA Commission On Domestic Violence (CODV). Federal provisions were subsequently implemented at the state level via pass-through funding requirements and by ensuring that federal funding is channeled only by radical feminist non-governmental organizations.
The thinking of the CODV was recently found “unethical and unworthy for use in policy†in RADAR’s recent report “Myths of the ABA Commission On Domestic Violenceâ€. The ABA Standards of Practice for family practitioners is unconstitutional on its face: The petitioner is repeatedly referred to as “sheâ€, despite the fact that men initiate less the half of all serious spousal altercations.
In June, New Jersey trial court judge Francis B. Schultz did his judicial homework and found portions of the New Jersey domestic violence laws are unconstitutional. Attorney David Heleniak, who is also a board member of the True Equality Network, represented the husband in this ground-breaking decision.
In Crespo v. Crespo, Judge Schultz applied the Matthews-Eldridge balancing test to properly assess the standard of review required for these cases (trial court judges rarely do this on the notion that only high courts need weigh fundamental elements of due process). He found that since restraining orders impact constitutionally protected parental rights, the highest evidentiary standard of “clear and convincing evidence†applies when determining if restraining orders are issued.
In his decision, Schultz also rejected a common practice of state legislatures who often improperly dictate evidentiary standards and due-process provisions to the courts. It is long held that the standard of review and procedural matters are exclusively the venue of the courts.
The difference between applying the “preponderance of evidence†standard and the strict-scrutiny “clear and convincing†standard in domestic violence cases is important. The “preponderance of evidence†standard, and the lower standard of review presently applied, encourages and rewards false assertions by trial lawyers or clients whose cases have little or no merit whatsoever. Under this standard, evidence is unimportant or even unnecessary. The “clear and convincing†evidentiary standard brings evidence to the forefront of the decision. If evidence of past or future serious violence exists, a restraining order will be issued.
The Supremacists-at-Bar were horrified about the decision. It means the collapse of their arrangement running trial courts as renegade Star Chambers.
The position of big-government advocates on domestic violence is absurd. They pretend having to present evidence that violence will (or has) occurred will make it impossible to get restraining orders. Of course, having to present a little hard evidence never stopped a court from making a prompt ruling. Having to present evidence means that trial lawyers could no longer abuse restraining orders as roadside bombs to commandeer families, children, and assets in divorce, immigration, and fantasy litigation cases (such as the woman who actually got a restraining order against David Letterman for being on television).
Readers must understand that radicals steering big government are not individuals who truly care about women or equality. They are individuals lobbying to expand the business base for trial lawyers, psychologists, foster care, adoption services, and a Colosseum full of other businesses that profit from deconstructing marriage.
This political-industrial complex reshaped government so that the only options available to women are the ones that put them at the mercy of big government that often later takes their children. Terri Lynn Tersak, True Equality Network’s CEO, sums it up precisely: â€these individuals are to feminism, what false prophets are to religionâ€.
Upholding Crespo predicts decreases in domestic violence and better service for women who have been abused. Abuse of restraining orders injects tremendous conflict into spousal relationships. For this reason, the vast majority of domestic violence occurs after issuance of a restraining order. Women’s abuse centers and courts are clogged with thousands of cases filed for strategic purposes. Truly abused women fall through the cracks.
If divorce is necessary, the dissolution and custody of children should be determined on the merits. Those who are irresponsible to the marriage or abuse mood altering chemicals should not be the victor – which is often the case when domestic violence laws are misused.
According to an Associated Press article, the New Jersey Attorney General’s office is presently seeking leave to appeal this decision, which is likely to ultimately wind up in the New Jersey Supreme Court.
We shall soon see if the New Jersey Supreme Court is working for the people, or for trade lobbies. Unquestionably, the court must uphold Crespo if its members place the Constitution and Separation of Powers doctrines before the vicarious demands of profiteering trial lawyers and other anti-marriage advocates.
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David R. Usher is Senior Policy Analyst for the True Equality Network, and President of the American Coalition for Fathers and Children, Missouri Coalition
Mr. Usher is the Senior Policy Analyst for the True Equality Network, and a co-founder and former Secretary of the American Coalition for Fathers and Children (5 years). He served as Secretary of the National Congress for Fathers and Children for five years. He was quoted in the October, 10 1996 issue of Time Magazine as an editor of "The Liberator", the oldest Men's Movement publication founded by Richard Doyle. Mr. Usher organized the three largest protests in the history of the men's movement, including the First Wives Club protests (1996 - 25 cities across America), and the "Bridges for Children" protest (2001 - 225 cities around the world). He drove many legislative reforms, including the first state law requiring downward support modifications for military reservists called into active duty [MO-1991], and the nation's toughest move-away law [MO-1998]. His slogan, "We must now grant to fathers the same right to be in the family as we have granted to women in the workplace", has become an often-quoted standard of the pro-marriage reform movement. | More from David R. Usher
Stumble It!
July 25th, 2008 at 1:00 am
David Heleniak should be congratulated for persuading the Judge to careful consideration.
What an asset he and you and the others involved in TEN, are.
I believe I am seeing a slow shift at last, not yet in the Laws that oppressus but in the type and magnitude of the strength that is being developed in the MRM and being brought to bear on the seemingly intractable Court system. Time will tell if my belief is well grounded.
Thak you for this report David. It is encouraging.
While it’s focus is on what is and isn’t ‘Constitutional’ and hense Amerikan, it has the potential of being Internationally influential.
July 25th, 2008 at 7:20 am
Great article Dave. We really need more recognition that family court decisions pound nails directly into the most important fundamental rights. Hope to see more courts stand up for themselves and the constitution. That’s their job. There isn’t much reason for them to exist otherwise.
July 25th, 2008 at 12:01 pm
A good start to curtailing these practices would be if a judge could be found who was both competent and honest – oh, never mind.
But just for fun: when the invariable accusations of sexually abusing the children are made, the Judge simply asks the attorney “who first mentioned this behavior: you or her, and I already know the answer”.
When the attorney “can’t remember”, he’s removed from the case, forfeits his fees to the State (not his client) and a formal grievance filed.
If he say “she told me first”, throw him in jail for contempt, then for perjury.
Wait for it…
July 25th, 2008 at 3:36 pm
David Usher,
Thank you for clearly written article for layperson to understand and explaining the Constituional difference between “clear and convincing” (beyond reasonable doubt) and “preponderance of evidence”.
When these acts started to be made by lawmakers, including “ex parte” orders, it seemed that Constitution was going to hell in a hanbasked.
When police was required to make mandatory arrest in DV cases, sometimes they would arrest both if they were not clear who the perpetrator was. Then- Attorney General Janet Reno promised extra funds to departments that would arrest only one (you decide who)
Thank you again for reporting what MSM ignores and let’s hope that the ruling by a courageous judge will be upheld on appeal
July 25th, 2008 at 10:50 pm
The US Supreme Court ruled in Maryland v. Craig that the Sixth Amendment “Confrontation Clause” was not violated if the defendand was only allowed to observe the testimony of alleged victimn via Closed Circuit Television.
The lady who was charged had a day care center where the alleged abuse took place. This was in mids of hysteria of all kind of charges from Minnesota, Califorina, Washington State (Wenatchee), Carolinas (Little Rascals Day are Center) with lurid testimony of witch craft and satanic rituals.
The ultimate irony was that then-Attorney General of Maryland was shown in newspaper rehearsing his arguments for SC with a judge from Maryland Court of Special Appeals. So much for separation of powers.
Link to Supreme Court ruling.
http://www.law.cornell.edu/supct/html/89-478.ZS.html
July 26th, 2008 at 12:24 pm
Well it good to hear that courts are finally forcing out of control government and non government “domestict terrorist” to abide by the law and will now start to hold these ” out of control bastards” to some degree of answerabiity. It is a start, not enough but a start!
Now for this to work, men must learn the law and then compel the courts to enforce it, even if that means some “politically correct people” ie feminist,women and ABA lawyers get sent to jail. I think once these people get the message that men are fed up and will not take being abused by an “out of control” system run by a bunch of man hating communist. It will take a while, but you will see a change and that change will be for the better.
July 27th, 2008 at 10:12 pm
Bruce Eden had an excellent OpEd in the New Jersey Daily Record today discussing the Crespo decision.
See:
Men rarely get fair shot in domestic violence cases Praise court for protecting male rights
http://www.dailyrecord.com/apps/pbcs.dll/article?AID=/200807270405/OPINION03/807270310
January 27th, 2009 at 11:36 pm
Please sign my petition and pass it on
http://www.petitiononline.com/ivfrape/petition.html“target=”_blank”>http://http://www.petitiononline.com/ivfrape/petition.html
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SAVE BABY X
Artificial Insemination used for Immigration & Paternity Fraud and the
complete removal of this child's rights to a father.
Baby X has been stripped of his rights to have a father, by the State
of New Jersey and Bergen County Courts, by a malicious plot involving
NJ Bergen County Family Court and the corrupt Judge Edward Torack, Dr.
Tanmoy Mukherjee, of the Mount Sinai Hospital/Reproductive Medical
Center of New York.
Baby X is a victim of a sinister plot by the ruling class to destroy
Black Families and Men using the false flag of Child Support system
and Women's Rights. Baby X was created during unauthorized artificial
insemination by Dr. Mukherjee and a Black Woman facing deportation for
defrauding a university in New York City. In order to avoid
deportation, Dr. Mukherjee and The Mother of Baby X conspired together
to take and illegally use the semen of a Black Male US Citizen in
order to perform an artificial insemination, and create an anchor
baby. They also conspired to victimize the said Black Male with the
responsibility of Child Support without his consent to an IVF.
During hearings at NJ Bergen County Family Court, Baby X's Father was
able to present a copy of Baby X's Mother's immigration records (which
should a history of immigration fraud conducted by Baby X's Mother)
and get Baby X's Mother to admit, under questioning, that she had the
child via Unauthorized Medical Experiment/IVF.
Immediately after clear evidence was presented in the court, that Baby
X was created by an via Unauthorized Medical Experiment/IVF for the
purposes Immigration Fraud, the Father was completely banned from all
courts and all judges – by the corrupt Judge Edward Torack of NJ
Bergen County Family Court.
The court ban against the Father to Baby X includes the denial of the
following rights:
1) Ban against a "Request for a DNA test of all parties"
2) Access to appeal & any other judges/courts
3) Ban against visitation between Baby X and Father X.
4) Any modifications to Child Support, including a decrease in income
of Father X
5) Any ruling on evidence pertaining to immigration and paternity
fraud in the case.
The end result is to totally strip Father X from any rights to the
child except to shut up and pay. He did not have a right to say when
where and how to have a baby, and he did not have a right to have any
representation in court. And therefore the State of New Jersey has
stripped Baby X's right to have a Father!