By: Victoria Paone Rosa, Esq.*
Technology is becoming a breeding ground for domestic violence. More often, domestic violence incidents are occurring through text message, online messaging and social media posts. In this article, we explore domestic violence through a “Nest camera,” which is an indoor security camera designed to help monitor the inside of a home, with 24/7 live streaming capabilities.
In a recently published decision, State of N.J. v. E.J.H., there was a Temporary Restraining Order (“TRO”) pending between an estranged Husband and Wife, which prohibited the Husband from “having any oral written, personal, electronic or other form of contact or communication” with the Wife. The TRO was pending for a month, during which time the parties entered into a Consent Order (in the divorce matter) which required the Husband to affix a Nest camera in his home and to ensure it was on and “active” during his parenting time with the parties’ daughter so that the Wife could supervise the Husband’s parenting time. While the TRO remained pending, the Husband had parenting time with the parties’ daughter on which occasion the Husband looked directly at the Nest Camera and said, “Oh I’m sorry I wasn’t nice to you. Good reason to keep me from my daughter for three months, because I wasn’t nice to you.” The Husband then proceeded to make a “lewd gesture at the camera.” Based on these actions, a contempt of the TRO charge (a criminal matter) was filed against the Husband.
Although the Husband attempted to enter a guilty plea during his contempt hearing, the trial court judge refused to accept said plea and found, as a matter of law, that the Husband did not knowingly violate the TRO. Ultimately, the trial court judge dismissed the contempt charge and held that the Husband was not “on notice that while he’s in his house, in his living room with his family, he’s not allowed to flip the bird or curse or yell.” In reaching this decision, the trial court judge noted that the Husband’s consent to permit the Nest camera in his home did not “take away his freedom of speech” or “his right to get angry and yell in his home.”
The Appellate Division reversed and remanded the trial court’s ruling. The Appellate Division specifically referred to the comments made by the Husband during his contempt hearing whereby he admitted that he was aware that if the Wife had been watching the Nest video during his parenting time when he made the aforesaid comments, then it would have violated the TRO because it was “a communication” directed at her. Although it was possible that the Wife was not watching the Nest video footage when the Husband directed his comments at the Nest camera, the Appellate Division explained that “under the circumstances here, [the Husband] was aware of the high probability that [the Wife] would hear his comments and observe his lewd gesture, which clearly were directed at her.”
In this case, communications through a Nest camera were viewed no differently than if the Husband had sent the Wife a video, text message or email. This ruling makes clear that the law must adapt to technological advances. With the expansion of technology comes the expansion of protections under the New Jersey Prevention Against Domestic Violence Act.
Domestic violence cases are extremely fact sensitive and require knowledge of the most recent case law by attorneys hired to represent both victims of domestic violence and persons who have been accused of committing acts of domestic violence. Litigants should be prepared to hire an attorney who is prepared to work expeditiously and to treat these cases with the importance that they deserve.
* (Editor’s note: Victoria Paone Rosa, Esq. is an associate at the Law Offices of Paone, Zaleski & Murphy working out of the firm’s Red Bank office, located at 120 Maple Avenue. Victoria’s professional history includes clerking in Monmouth County for the Honorable Mara E. Zazzali-Hogan for both the Family part, Chancery Division and Civil Division for 2016-2017. She is currently a member of the New Jersey State Bar, Middlesex Bar Association, Monmouth Bar Association and Aldona E. Appleton Family Law Inn of Court. Victoria limits her practice to divorce, child support, child custody, equitable distribution, alimony, domestic violence, alimony, palimony and all other family law issues. Her monthly column, “Divorce Hotline,” will serve to inform readers as to family law news, advice as to the divorce process, comment on recently published family law cases and more. Paone, Zaleski & Murphy can be contacted at 732-750-9797.)