On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
This appeal concerns New Jersey's Address Confidentiality Program Act (Act or Statute), N.J.S.A. 47:4-1 to -6, which the Legislature enacted in 1997 to protect victims of abuse by shielding their locations from their abusers.
The parties to this case are Walter and Cynthia Sacharow, the parents of a seven-year-old son. In March 2000, after six years of marriage, Mr. Sacharow filed for divorce. The parties agreed to a custody arrangement and visitation schedule while they were separated, but after Mr. Sacharow claimed his wife violated the agreement, the court issued an order governing custody and visitation, which, among other things, forbade the parties to follow or harass each other. The boy lived with his mother and Mr. Sacharow was given telephone access to his son and had one overnight visit and visitation on three other days each week. During the separation, Mrs. Sacharow lost her apartment; she and her son then lived with friends or in homeless shelters. Twice she was held in contempt for violating the visitation/contact agreement.
On November 2, 2000, Mrs. Sacharow filed a complaint against her husband pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33, and a temporary restraining order was entered against Mr. Sacharow. The complaint was dismissed after testimony at the final hearing on the complaint convinced the trial judge that Mr. Sacharow's frequent paging of his wife while she was homeless and without telephone service was his way of attempting to reach her to secure his visitation rights, not harassment and not a permanent domestic violence violation.
Three months later, Mrs. Sacharow applied for admission to the Address Confidentiality Program (ACP), submitting pursuant to the Act a sworn statement that she had reason to believe she was the victim of domestic abuse and that she was at risk of further abuse. She was accepted into the program, with the result that her address and her son's and that of her son's school no longer were public.
When the Sacharows entered into a matrimonial settlement the following year, they agreed to joint legal custody of their son. Sole physical custody was to be with the mother, conditioned on her honoring a liberal visitation schedule between father and son. The parties agreed to leave to the court the issue of whether Mrs. Sacharow would have to reveal her address to Mr. Sacharow.
The court concluded that Mr. Sacharow was entitled to know his ex-wife's address because of his right to know where his son was living and held that because there had been no final order declaring that Mrs. Sacharow was a victim of domestic violence, she could not rely on her ACP status to keep her address confidential. The trial court denied Mrs. Sacharow's motion for a stay of the order that directed her to reveal her address. The Appellate Division denied her stay motion as well and sua sponte dismissed Mrs. Sacharow's appeal. The Supreme Court granted Mrs. Sacharow's petition for certification.
HELD: When address confidentiality is raised in a judicial proceeding involving custody and visitation, the question must be decided on the merits, based on the child's best interests. The entry of a domestic violence restraining order is not a prerequisite of address confidentiality in such a judicial proceeding or in an application pursuant to the Address Confidentiality Program Act.
1. New Jersey is one of nine states that since 1991 have created address confidentiality programs to prevent victims of domestic violence from being found by their abusers. New Jersey's law provides that an applicant who certifies that he or she has reported an incident of domestic violence, as defined by statute, to the police or a court, shall be admitted to the ACP. A final restraining order is not required under the Act. (pp. 8-14).
2. The Act requires State and local agencies to honor a person's ACP status. Because the judiciary is created by the Constitution, not by statute, and is a separate branch of government, not an agency, a court is not bound by the ACP statute. (pp. 14-16).
3. The judicial doctrine of collateral estoppel does not require the court to abide by the ACP status of Mrs. Sacharow, for the issue of domestic violence was not litigated in the ACP; Mr. Sacharow had no opportunity to defend; there was no determination on the merits; and Mr. Sacharow was not a party or in privity with a party in the ACP action. The nature of the ACP proceedings is such that a court need not defer to an ACP disposition. (pp. 16-19).
4. There are many compelling reasons why a victim of domestic violence may not file or may withdraw a domestic violence complaint, and the Act does not require an applicant to possess a final domestic violence restraining order to be admitted to the ACP. The Court recognizes the same reasoning to apply when a litigant seeks address confidentiality in a judicial proceeding involving custody or visitation and declares that a final restraining order is not a prerequisite to a grant of confidentiality. (pp. 19-21).
5. Both parents have an equal, fundamental right to the care and nurturing of their child. By submitting custody and visitation issues to the courts, each party is deemed to have consented to the possible curtailment of his or her rights. The court's sole benchmark is the best interests of the child. In this case, because the determination was not made after a best interests inquiry, Mrs. Sacharow's address confidentiality application is remanded for a trial on that issue. (pp. 21-23).
6. In the proceedings on remand, Mrs. Sacharow will bear the burden of proving the prior domestic abuse and a realistic fear of future abuse. If the court finds she has met this burden by a preponderance of the evidence, presumably address confidentiality will be warranted, as it is in the child's best interests to avoid future abuse of his mother. Mr. Sacharow then will have the opportunity to produce evidence to prove that address confidentiality is not in the child's best interests. Mr. Sacharow also may raise the issue of whether findings made by the court in denying the final domestic violence restraining order should be binding. If the court finds they should be, the court should also assess what has transpired in the past three years. (pp. 23-26).
7. The ACP is a salutary program, and although the Court declares that courts are not bound by an ACP designation, this opinion should not be read as a commentary on the validity of the ACP's procedures. That issue was not squarely presented in this case. (pp. 26-27).
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Chancery Division, Family Part for proceedings consistent with this opinion.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, LaVECCHIA, AND ZAZZALI join in JUSTICE LONG's opinion. JUSTICES VERNIERO and ALBIN did not participate.
The opinion of the court was delivered by: Long, J.
In 1997, in response to the problem of domestic abuse occurring nationwide, our Legislature enacted the Address Confidentiality Program Act (Act or Statute), N.J.S.A. 47:4-1 to N.J.S.A. 47:4-6, a measure that protects abuse victims by shielding their locations from their abusers. This appeal presents the narrow issue of whether the action of the Address Confidentiality Program (ACP) binds a court in a subsequent proceeding involving custody and visitation. We hold that when address confidentiality is raised in a judicial proceeding involving custody and visitation, the question of confidentiality must be decided on its merits, regardless of a party's ACP status, based on the child's best interests. A tangential question that is posed is whether an applicant for address confidentiality either in the ACP or in court is required to have obtained a domestic violence restraining order as a condition of confidentiality. We hold that a domestic violence restraining order is not a prerequisite of address confidentiality in any forum.
Cynthia and Walter Sacharow were married on March 12, 1994, and have one son who is seven years old. On March 14, 2000, Mr. Sacharow filed for divorce. On June 1, 2000, Mr. Sacharow moved for sanctions against his wife, claiming that she was interfering with the visitation schedule they had agreed on when they separated. Pursuant to a court order dated June 23, 2000, Mr. Sacharow was awarded visitation for two afternoons a week, all day on Saturdays, and Thursday overnight. The order also forbade both parties from following or harassing each other and granted Mr. Sacharow telephone access to his son.
At some point during the summer of 2000, Mrs. Sacharow lost her apartment. She and her son thereafter lived with friends or in women's shelters. During that time, she refused to give Mr. Sacharow their address or phone number, although she did have a pager and Mr. Sacharow could also call the daycare center where their son spent every weekday. In the time leading up to the settlement of their divorce, Mrs. Sacharow twice was held in contempt for violating the visitation schedule and for failing to allow Mr. Sacharow regular phone contact with his son.
While the divorce action was pending, on November 2, 2000, Mrs. Sacharow filed a complaint pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to N.J.S.A. 2C:25-33, accusing Mr. Sacharow of domestic violence. A temporary restraining order was entered against Mr. Sacharow on November 8, 2000, pending a final hearing on Mrs. Sacharow's complaint.
At the final hearing on November 29, 2000, the court summarized the substance of the allegations as follows:
The allegations at that time, let me see if I have it right, first two months repeatedly paged you four times a day despite your protests, came to your home and uninvited, refused to leave even when police were called, repeatedly files false police reports against defendant.
Mrs. Sacharow added that she suspected that Mr. Sacharow had called the Division of Youth and Family Services (DYFS) to find out her whereabouts after she had been evicted from a former apartment. She stated "I am assuming that he was upset with the fact that he didn't know where I am with his son every moment of the day and he went and called DYFS and told them I was sleeping in my car." The court questioned whether Mr. Sacharow had ever struck Mrs. Sacharow, to which she responded "no, but he did grab me at one point." Mrs. Sacharow also alleged "he's stalking me indirectly. His mother watched every move I made when I lived in Clifton."
Mr. Sacharow's attorney argued before the court that the alleged harassment -- the frequent paging of Mrs. Sacharow by Mr. Sacharow -- was in fact his attempt to secure his visitation rights with their son. Because Mrs. Sacharow was homeless and had no phone service, Mr. Sacharow had no alternative but to try to reach her by pager. The court concurred:
[W]hat is becoming readily apparent to me is that this is a result of a matrimonial action. This is a result of problems of a relationship that has failed. You're involved in another aspect of this case. I do not see a permanent domestic violence violation here.... What I see is an outgrowth of a matrimonial matter. I understand it is proceeding in matrimonial and I am dismissing this complaint.
The court dismissed the domestic violence complaint and directed Mrs. Sacharow to address the matter in the matrimonial action.
Three months later, on February 27, 2001, Mrs. Sacharow submitted an application to the ACP, including a sworn statement that she had reason to believe that she was the victim of domestic abuse and that she was at risk of further abuse. She was accepted into the program on March 9, 2001, as a result of which her address and that of her son, as well as the address of her son's school were no longer public records.
On January 2, 2002, the parties entered into a settlement agreement regarding their divorce. As part of the settlement, the parties agreed to joint legal custody of the child. Mrs. Sacharow was awarded sole residential custody "on condition that she demonstrates that she is committed to maintaining regular contact between the father and the son by honoring a liberal parenting time schedule." Obviously there is no issue of parental unfitness in this case.
The settlement agreement reserved for the court the issue of whether Mrs. Sacharow would have to divulge her address to Mr. Sacharow. The court concluded that Mrs. Sacharow had no compelling reason to interfere with Mr. Sacharow's "right" as a custodial parent to know the whereabouts of his son, as she had ...