Domestic Violence Restraining Order to Protect Unborn Child
A domestic violence restraining order can provide in advance for protection of a child not yet born, a state judge has ruled in a case of first impression.
"[W]hile a fetus is not yet legally a person, upon live birth the fetus becomes a person, with rights of redress and protection from harms which originated before birth," Superior Court Judge Lawrence Jones held in B.C. v. T.G., FV-15-1033-13, approved for publication on May 3.
Jones, who sits in Ocean County, noted that since the Prevention of Domestic Violence Act allows a protected party's children and other family members to be included in the order, the plaintiff's baby clearly would have been covered had she already given birth.
There is an "inherent logic in allowing a pregnant domestic violence victim to obtain prebirth, advance protection for her unborn child against a violent abuser," Jones concluded.
B.C. was a 17-year-old girl who had dated the 18-year-old father, T.G., but the relationship ended soon after she told him about the pregnancy.
T.G. did not want the baby and had B.C. beaten up last December. He arranged to meet with her, saying he wanted to discuss prenatal medical appointments, but instead led her to a location where four female acquaintances of his dragged B.C. from her car, threw her to the ground and, at his direction, proceeded to assault her. T.G. joined in, pulling B.C. up, grabbing her by her ribs and throwing her back down, causing her head to hit the ground.
B.C. incurred multiple injuries in the attack, and it is unknown whether the fetus suffered damage, said Jones. B.C. is due in June.
Having a pregnant victim return to court right after giving birth for an emergent hearing to add the newborn to the restraining order, made "little sense," in Jones' view.
Among the reasons he cited were the emotional stress and trauma associated with having to go to court, including "trepidation over facing an accuser" and discomfort over testifying about private matters in open court.
He added that the new mother might not be able or inclined to go before a judge because of postbirth medical complications to herself or her child, her need to recover from a difficult childbirth or even the "innate desire to physically be with the baby and personally focus on the newborn's needs," rather than bringing the infant to court or finding someone to care for it, Jones said.
Though no case was directly on point, he found "persuasive authority" in a 50-year-old parental neglect case, Hoener v Bertinato, 67 N.J. Super. 517 (Juv. & Dom. Rel. Ct., 1961). There, a court order provided that, on the birth of an unborn child, the state would get custody so it could provide the necessary medical treatment and protection.
The fact that the child had not yet been born did not divest the court of jurisdiction to act, wrote Jones.
Similarly, he saw "nothing in either our law or public policy which prohibits a court of equity from entering a final restraining order protecting a pregnant victim of domestic violence by including an advance protection provision for her unborn child, to take effect immediately upon the child's live birth."
Once the child is born, the restraining order can be administratively amended to mention the infant by name on submission of the birth certificate to the court, Jones added.
Jones ruled on Jan. 31, but the decision was not made public until it was approved for publication.
B.C.'s court-appointed counsel, Jill Thiemann, calls the attack "an egregious physical assault" that left her client "very badly bruised" and sent her to the emergency room.
She believes T.G. was charged with assault in Lakewood municipal court but does not know how the case was resolved.
Thiemann, of O'Malley, Surman & Michelini in Brick, says she was surprised New Jersey did not already have such a holding and she hopes other judges will follow Jones' lead.
She suggested adding the unborn child after Jones had decided to grant a final restraining order and asked her who should be included as a protected party — a list that included B.C.'s parents and three siblings, with whom she resides.
T.G. has no lawyer and could not be reached for comment.
Sandy Clark, executive director of the New Jersey Coalition for Battered Women in Trenton, calls the decision "very troubling."
The coalition is "all for extending the protections around domestic violence, but we don't feel that this decision is about that," she says.
"The case is more about the definition of a person in New Jersey and the rights or nonrights of a fetus," she says.
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