On May 11, 1992, the plaintiff filed a domestic violence complaint alleging that defendant assaulted her when defendant went to pick up the parties' child from a scheduled visitation. Pursuant to her ex parte testimony in court, the court issued a temporary restraining order prohibiting any contact between the plaintiff and the defendant as well as suspending the defendant's visitation until the date of the final hearing, May 20, 1992. There would have been one overnight visitation of 46 hours during this time period.
There is a history of litigation between the parties. On April 20, 1992, the defendant herein, Daniel Figueroa filed a complaint seeking visitation with the parties' child Daniel Figueroa, born January 1, 1990. On April 28, 1992, the plaintiff herein, Anna Cosme responded by filing a domestic violence complaint alleging terroristic threats, assault and harassment by the defendant. Pursuant to plaintiff's prior complaint a temporary restraining order was issued on April 28, 1992. However, on the return date the plaintiff, after executing the appropriate affidavit, and appearing before the court, withdrew the complaint and dismissed the case. On April 29, 1992, a visitation consent order was entered whereby plaintiff and defendant agreed that defendant would have overnight visitation on weekends from Friday 8:00 p.m. through Sunday 6:00 p.m. It was the contact between the parties on Sunday at 6:00 p.m. which gave rise to the instant complaint.
At the final hearing of the instant case both parties appeared. The plaintiff testified that while she was picking up the child on May 10, 1992, the plaintiff and the defendant became involved in an altercation. The plaintiff further testified that when the defendant struck her, the parties' one year old son was in her arms. Defendant admits that he in fact assaulted the plaintiff by pushing her, but claims that the baby was not in her arms at the time.
Plaintiff further testified that she and the defendant had lived together prior to the institution of litigation. She also stated that during cohabitation the defendant was employed and she was receiving welfare and that the welfare money was used to furnish her apartment. Defendant denies that the welfare grant was used in this manner, but instead testified that he purchased various household items, and sought possession of those items at the proceeding.
Based on the undisputed testimony of the plaintiff, this court finds that the defendant did assault the plaintiff on April 29, 1992 and issued a final restraining order. The final order
contained the standard restraints as well as supervised visitation and a support order adopted from the prior consent order of the court. In addition, a risk assessment and domestic violence counseling for anger management of the defendant were also ordered. The matter was referred to County Counsel's Office and the Hudson County Prosecutor for possible welfare fraud. The court specifically refused to take a position as to possession of any items of personal property and gave the parties the opportunity to collect their proofs as to entitlement to the requested items.
The major issues to be determined in this domestic violence case are (1) which party bears the burden of proof on a request for a risk assessment, (2) upon what quantum of proof is the request found to be or not be arbitrary or capricious, and (3) may visitation be terminated pending the results of an ordered risk assessment.
Initially, the court must determine the propriety of ordering a risk assessment. The pertinent section of the Prevention of Domestic Violence Act of 1990 provides:
The court shall consider a request by the plaintiff for an investigation or evaluation by the appropriate agency to assess the risk of harm to the child prior to the entry of a visitation order. Any denial of such a request must be on the record and shall only be made if the Judge finds ...