Tuesday, July 29, 2008

NJ restraining orders are unconstitutional

David R. Usher writes:
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 judge has a good point. US Supreme Court decisions like Santosky v Kramer (1982) have ruled that clear and convincing evidence is required before taking away parental rights.

I have a similar argument in my appeal. Comm. Irwin Joseph took away my kids, and he explicitly said that he was basing his decision on the "preponderance of the evidence". This is one example of how he has violated my constitutional rights.

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