Restraining Order Trumps Mediation Requirement
A recent New Jersey Appeals Court ruling doesn’t directly apply in Arizona, but shows how domestic violence can derail a divorce mediation.
The specific case, which was seen in the New Jersey Superior Court, shows how complex family mediation can be when there is domestic violence involved. The parties involved agreed to communicate about their one child and use mediation for disagreements. However, after the divorce was finalized the wife sought and was granted a final restraining order against the husband for domestic violence issues. The husband was still required to make support payments.
Where this gets really interesting is that when the wife later took the husband to court for several missed payments the husband basically claimed he could not communicate with his wife due to the restraining order which is why he had missed payments. The court encouraged the wife to change the restraining order to allow email so they could communicate. However the wife declined claiming that the husband would send inappropriate and threating emails.
Further, the wife wanted the court to let her out of the mediation agreement since it had not been effective in the past at helping to receive any of the payments owed her. In a twist, the court instead ordered her go to a mediator to resolve this and other issues. Such an order however would appear to be in direct violation of the restraining order. Which should take precedence, and should the wife have to go to mediation with her husband whom she had previously had issues with domestic violence?
The case was then taken to an appeals court which ruled that the restraining order takes precedence over the mediation agreement and ruled a finding of domestic violence and upheld the final restraining order. As domestic violence can range in severity the precedent was ruled in favor of protecting the safety of the woman. The court also ruled that although costly, further disputes would need to be handled in court because all aspects of the mediation process were not secure (transportation to and from, entering the site, etc.).
Again, while this case may not directly apply to Arizona, it is interesting how domestic violence can affect outcomes in divorce.