RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0900-20

A.M.,

Plaintiff-Appellant,

v.

J.P.M.,

Defendant-Respondent.

_________________________

Argued March 3, 2021 - Decided 

Before Judges Ostrer, Accurso and Enright.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Union County, Docket 

No. FV-20-0408-21.

Susan McCue argued the cause for appellant (Central 

Jersey Legal Services, Inc., attorneys; Susan McCue, 

on the briefs).

Nicholas T. Delaney argued the cause for respondent 

(Law Office of Katherine G. Houghton, attorneys; 

Nicholas T. Delaney, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

September 10, 2021
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A-0900-20

Plaintiff A.M. appeals from the denial of her application for a final 

restraining order against her husband defendant J.P.M. pursuant to the 

Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35 and 

the dismissal of the temporary restraining order against him.

1

 Although the 

judge found defendant committed the predicate act of harassment pursuant to 

N.J.S.A. 2C:25-19(a)(13), he failed to consider other acts alleged in plaintiff's 

complaint, including assault and criminal mischief. More important, he let 

plaintiff's subjective fear of defendant dictate whether an FRO was necessary to 

protect plaintiff from an immediate danger or to prevent further abuse instead 

of considering the statutory factors the Legislature established in N.J.S.A. 

2C:25-29(a)(1) to (6).

Specifically, the judge declared "the plaintiff's fear is important and goes 

to the heart of whether or not even the plaintiff feels that she is in some 

immediate danger." He found "a plaintiff would know better than the court 

whether or not she actually is in any immediate danger." Because the judge 

determined plaintiff didn't "really believe[] that she's in some immediate danger 

1

 We granted plaintiff's emergent motion to stay the final order pending our 

resolution of this appeal and reinstated the temporary restraining order, 

remanding to the judge presiding over the parties' divorce for the limited purpose 

of deciding whether the order should be amended to permit defendant parenting 

time and, if so, under what conditions. 
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from the defendant," he found plaintiff "is [not] in any immediate danger from 

[defendant]," and, accordingly "conclude[d] that there is not a reason to have a 

restraining order going forward to protect her from further abuse." 

Because a plaintiff's subjective fear of the defendant is not the test under 

the second prong of Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 

2006), and plaintiff is entitled to the court's consideration of every theory alleged 

in her complaint, we vacate the order denying the FRO, reinstate the TRO and 

remand for a new hearing before a different judge.

The essential facts as to what happened to prompt plaintiff's application 

for a TRO are not in dispute. The parties' marriage was foundering. Defendant 

had filed for divorce, and the reconciliation they were attempting was not going 

well. Plaintiff was trying to sleep in on a Sunday morning having worked the 

night shift. The parties were arguing and plaintiff got up to be with the parties' 

three young children. Defendant had started in on a bottle of vodka by a little 

after noon.

At some point, defendant texted plaintiff that he was leaving. Plaintiff 

started to walk through the house looking for him and saw him outside. 

According to plaintiff, defendant charged into the house, highly intoxicated, 

saying "f... this . . . I'm not f...ing doing this anymore, I'm gonna go kill myself." 
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Defendant had attempted to hang himself several months earlier, leading to a 

nine-day hospitalization. Plaintiff thus took his threat seriously and said she 

was going to call the police.

2

 Defendant "came at [her]," attempting to wrest 

the phone from her grasp.

Defendant ended up twisting plaintiff's arm behind her back and pinning

her face down on the couch, causing her pain and difficulty breathing. She 

2

 Plaintiff's counsel attempted to explore this history with plaintiff in an effort 

to establish the predicate act of harassment. Defense counsel objected on the 

basis it was not relevant. The court asked whether plaintiff was attempting to 

establish that "I'm going to kill myself is a statement offered with purpose to 

alarm the other individual[?]" When plaintiff's counsel confirmed that was what 

she was arguing, the judge said, "I'll allow just a little bit more with respect to 

that but I sincerely doubt that a restraining order would ever be given to someone 

because the defendant threatened to kill himself." 

We do not agree with the judge that threats of suicide by a defendant 

would not support entry of a domestic violence restraining order. See Julie 

Saffren, Professional Responsibility in Civil Domestic Violence Matters, 24 

Hastings Women's L.J. 3, 19 (2013) (describing "threats of suicide and selfharm" as red flags for high lethality domestic violence cases); Sally F. Goldfarb, 

Reconceiving Civil Protection Orders for Domestic Violence: Can Law Help 

End the Abuse Without Ending the Relationship?, 29 Cardozo L. Rev. 1487, 

1539-40 (2008) (explaining researchers have identified "threats of homicide or 

suicide" as risk factors for future severe violence between perpetrators and 

victims of domestic violence); Catherine F. Klein & Leslye E. Orloff, Providing 

Legal Protection for Battered Women: An Analysis of State Statutes and Case 

Law, 21 Hofstra L. Rev. 801, 848 n.236, 863 (1993) (noting "[d]omestic 

violence consists of a wide range of behaviors, including . . . suicide threats or 

attempts" and describing how "[b]atterers often make threats of suicide as a 

method of exerting control over their battered intimate partner").
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couldn't move. The children were present and the parties' four-year-old son

jumped on defendant's back, hitting him and yelling at him to get off his mother. 

Plaintiff yelled to her daughter to run outside and scream for help. The child, 

seven years old, ran out the front door, crying and screaming for help. The 

neighbors heard the child's screams and entered the house, causing defendant to 

release plaintiff and run into the backyard. The parties' Ring doorbell captured 

some of the mayhem.

When defendant let her go, plaintiff grabbed the children, ran to her 

neighbor's house and called the police. The son who had been trying to fight off 

his father, ran back into the house crying for him. Plaintiff followed the boy 

and the two saw defendant in the backyard standing on a stool with a rope around 

his neck. When police arrived, defendant ran inside and locked the doors. The 

day ended in a three-hour standoff between defendant and a SWAT team, some 

of which plaintiff could view on the Ring doorbell application on her phone, 

including defendant throwing what appeared to be a brick at police. While 

barricaded inside, defendant caused considerable damage, breaking two front 

windows, the front door, blinds and a ceiling lamp in the kitchen, the dining 

room table, and shattering picture frames in the upstairs hallway. He also set 
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fire to and burned the dining room chairs, the rug and every step of the stairway 

runner to the second floor.

Plaintiff testified she was seeking a restraining order to ensure the safety 

of herself and their children and to prevent "[s]omething like this" from 

happening again. Defendant's counsel did not question plaintiff about her 

complaint alleging assault, criminal restraint, criminal mischief and harassment. 

Instead, he focused on plaintiff having "expressed [her] willingness to others 

outside of this case to drop the DV, so long as [defendant] gave up the house." 

Plaintiff admitted having such conversations, but claimed defendant's friend 

reached out to her about dropping the charges. Counsel also asked whether 

plaintiff had a similar conversation with her sister, which plaintiff denied, saying 

"I don't even speak to my sister."

Plaintiff's counsel objected to this line of questions on relevancy grounds. 

Defendant's counsel contended the questions went to plaintiff's credibility. The 

court overruled the objection, finding the question of whether plaintiff was 

willing to drop the restraining order in exchange for defendant signing over his 

interest in the house very relevant because it "would go to the heart of whether 

or not the plaintiff is truly fearful of the defendant."
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Defense counsel also asked whether it was true defendant had gotten a 

restraining order against her a few months before this incident. Plaintiff 

admitted he had, and that she had scratched his neck in the course of an argument 

between the two. Plaintiff also testified that defendant injured her in that 

argument and that she had attempted to get a restraining order against defendant 

but had been denied. Plaintiff admitted she had not been allowed to see their 

children for several weeks as a result of that order, causing her much anguish, 

and that defendant dismissed the TRO when the parties agreed to reconcile. 

Defendant called his friend and plaintiff's sister, both of whom testified 

briefly about conversations or texts with plaintiff in which she expressed a 

willingness to drop the restraining order, or the pending criminal charges (the 

witnesses were not clear about which) in exchange for defendant signing over 

his half of the house to her.

Defendant testified in his own behalf. He claimed he drank an entire bottle 

of vodka in about four hours and had no recollection of much of the events on 

the day of the standoff. He admitted he had no reason to doubt plaintiff's 

testimony about him twisting her arm and pinning her to the couch, but testified 

he had never hit or attempted to hurt her during their nine years of marriage. 

Defendant also testified he spent nine days in the hospital receiving treatment 
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after the standoff, including for alcohol dependency, that doctors increased his 

anti-depressant medication, and that he had since continued weekly outpatient 

treatment and joined Alcoholics Anonymous. Defendant testified he was 

"embarrassed about the whole thing" and basically ashamed of himself.

In his summation, defense counsel argued this was "a one-off" event, and 

plaintiff's conversations with her sister and defendant's friend "show[] there is 

no fear here" and thus no need for entry of an FRO, especially as defendant had 

no desire to reconcile with plaintiff. 

Plaintiff's counsel argued plaintiff had established the predicate act of 

assault and harassment and although asserting the extent of the damage 

defendant caused to their home could also qualify as criminal mischief, said she 

would focus her remarks on assault and harassment as plaintiff needed to 

establish only one predicate act under the statute. Plaintiff's counsel also 

disagreed with defense counsel's focus on plaintiff's subjective fear of 

defendant, saying, "[t]he second prong of Silver is that the victim needs the

protection because she is potentially subject to further abuse or the possibility 

of immediate danger from this particular abuser. It has absolutely nothing to do 

with fear, whether that's objective or subjective." Counsel argued plaintiff had 

easily established a predicate act and that "the extreme nature" of defendant's 
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conduct the day of the standoff, his psychiatric history, and his substance abuse 

history all indicate the potential for further abuse in the absence of an FRO.

The judge, although noting the several predicate acts plaintiff had alleged 

in her complaint, stated that he was "going to focus on harassment." The judge 

stated he believed plaintiff's testimony about how the altercation between the 

parties happened, and concluded defendant had committed an act of harassment 

against plaintiff under N.J.S.A. 2C:33-4(b). The judge acknowledged 

defendant's argument that plaintiff is "not fearful" and plaintiff's argument "that

fear is not necessary," but said he "beg[ged] to differ with [plaintiff] on that." 

The judge opined "[t]he plaintiff's fear is important and it goes to the heart of 

whether or not even the plaintiff feels that she is in some immediate danger, and 

in [his] view a plaintiff would know better than the court whether or not she 

actually is in any immediate danger."

Turning to the evidence in the record "to help the court decide if she is 

[fearful]," the judge noted 

a general vague statement [in the complaint] alluding to 

domestic violence and then I find out that there's a

[temporary] restraining order that the defendant 

obtained against the plaintiff, so I have a plaintiff 

accused of previously attacking physically the 

defendant and he testified that he was injured in his 
10 A-0900-20

arm.[3] So, um, under what circumstance might 

someone find that this plaintiff actually is fearful and 

thinks that she's in some danger from the defendant? 

The judge found "the other tricky part" to be that plaintiff 

actually makes sort of a back-door attempt to 

communicate with the defendant. She knows better

than to contact him directly by phone, text, e-mail, 

whatever. She knows that that would indicate strongly 

that she has, in essence, . . . put him in a situation to 

violate the restraining order. She's not trying to do that. 

She would rather talk to her sister and, uh, the 

defendant's friend about whether or not the defendant 

would be willing to give up any rights in the house and 

in exchange for that she would dismiss charges. 

The judge stated he didn't "know what charges she's talking about," but 

found it difficult to believe she was "saying, well, . . . I'll ask the prosecutor in 

the criminal case to dismiss the criminal charges but I'm going to keep my 

restraining order." The judge found it "pretty clear . . . that what [plaintiff]

meant was you give me the house and I'm going to let you walk away from this 

whole thing. That's what she was doing." The judge concluded:

So would that indicate that the plaintiff really believed 

that she's in some immediate danger from the 

defendant? Not in my book. To me it says I don't really 

3 Defendant did not testify about this incident. Plaintiff testified she was 

assaulted by defendant in the incident by defendant "grabbing [her] by [her] 

arms again" and "toss[ing] her to the floor." She claimed she accidentally 

inflicted "a scratch on his neck" when she snatched at a piece of paper belonging 

to her that he was "waving" around.
11 A-0900-20

think anything like this is going to happen again and 

what I need to do is protect myself and my kids and I 

need to get that house and make sure that I can keep 

that house and that he understands that while we're not 

going to be together anymore, that his family should at 

least be able to live at peace in that house and I 

understand that, I understand that, but that's not the 

question here. That's a question for another day in 

another courtroom, [a] matrimonial judge will decide 

all of that, but I don't find that [plaintiff] is in any 

immediate danger from [defendant] and therefore I 

conclude that there is not a reason for her to have a 

restraining order going forward to protect her from 

further abuse. 

The judge stated he was "not considering that [defendant] went to a 

hospital, . . . [and] is in therapy, all of those things." He noted 

people can relapse, but does that mean [defendant] is 

going to get drunk or take drugs and go over to that 

house and attack [plaintiff]? Not at all when I consider 

the circumstances under which these allegations came 

about.[4]I don't think [defendant] is going to do that 

and I do believe he's contrite about what happened and 

he might be genuine in his attempt to make sure he 

doesn't fall off the edge with drugs and alcohol and end 

up hurting himself or others. So based upon all that I've 

said, I am dismissing the domestic violence complaint 

and corresponding temporary restraining order.

4

 The judge did not make any specific findings about "the circumstances under 

which these allegations came about," and we cannot discern what he might have 

been referring to.
12 A-0900-20

Notwithstanding the deference owed to the determinations made by family 

judges hearing domestic violence cases, Cesare v. Cesare, 154 N.J. 394, 411-12 

(l998), we think it plain the final order entered in this case cannot stand. While 

we normally defer to family court factfinding, id. at 412, our scope of review is 

expanded where the focus of the dispute is on "the trial judge's evaluation of the 

underlying facts and the implications to be drawn therefrom." N.J. Div. of 

Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279 (2007) (quotation omitted). 

We do not, of course, accord any special deference to the trial court's 

interpretation of a statute, which is where the error lies in this case. See

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The law is well-settled that a judge's finding of a predicate act of domestic 

violence is only the first of a two-step process; the second step requires a 

finding, "upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) 

to -29(a)(6)," that a restraining order is necessary "to protect the victim from an 

immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 127. 

A plaintiff's fear of the defendant is not among the six factors the Legislature 

included in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6).5 

5

 N.J.S.A. 2C:25-29(a) provides in part:
13 A-0900-20

The only time a plaintiff's fear has received particular attention in a Silver

analysis is when fear or alarm is an element of the underlying offense, as, for 

example, with terroristic threats, N.J.S.A. 2C:12-3(b), or subsection (a) or (c) of 

the harassment statute, N.J.S.A. 2C:33-4(a) or (c), none of which was at issue in 

this case. See Cesare, 154 N.J. at 402-05 (discussing relevance of plaintiff's fear 

in considering offenses of terroristic threats or harassment in the context of a 

domestic violence matter). But even those cases are instructive here as they 

teach that "[s]ome people are braver than others and less likely to be subject to 

intimidation," and thus that "[t]he criminality of the perpetrator's conduct" 

should not be "depend[ent] on the courage or timidity of the intended victim." 

Id. at 403 (quoting State v. Nolan, 205 N.J. Super. 1, 4 (App. Div. 1985)

(explaining that judges presiding over domestic violence cases alleging 

The court shall consider but not be limited to the 

following factors [in determining whether to grant a 

final restraining order]: (1) The previous history of 

domestic violence between the plaintiff and defendant, 

including threats, harassment and physical abuse; (2) 

The existence of immediate danger to person or 

property; (3) The financial circumstances of the 

plaintiff and defendant; (4) The best interests of the 

victim and any child; (5) In determining custody and 

parenting time the protection of the victim's safety; and 

(6) The existence of a verifiable order of protection 

from another jurisdiction.
14 A-0900-20

terroristic threats or harassment should employ an objective standard and 

therefore "not consider the victim's actual fear")). 

What our Supreme Court has deemed critical in fulfilling the Legislature's 

intent in enacting the Prevention of Domestic Violence Act is that the judge 

consider the plaintiff's individual circumstances and the past history of the 

parties, within the context of the specific allegations of the complaint, 

"weigh[ing] the entire relationship" and "specifically set[ing] forth their 

findings of fact in that regard." Id. at 405. That was not done here. Instead of 

focusing on the factors in N.J.S.A. 2C:25-29(a)(1) to (6) and weighing the 

parties' entire relationship in conducting the second-prong Silver analysis, the 

court substituted its own test — the plaintiff's subjective fear of defendant. That 

was a plain error.

We do not hold that a court can never consider a plaintiff's fear, measured 

objectively, in determining whether the plaintiff is in immediate danger from 

the defendant. The factors in N.J.S.A. 2C:25-29(a)(1) to (6) are a non-exclusive 

list of considerations for a court to weigh in determining whether to grant an 

FRO. But a court is certainly not free to ignore "the statutory command to 

consider the previous history, if any, of domestic violence between the parties" 

and to substitute its own test for the second-prong Silver analysis as was done 
15 A-0900-20

here. See J.D. v. M.D.F., 207 N.J. 458, 479 (2011). Contrary to N.J.S.A. 2C:25-

29(a)(1), the court did not make any findings about the parties' previous history 

of domestic violence, although there was obviously some history, and truncated 

the plaintiff's effort to elicit further testimony of defendant's prior threat to kill 

himself, his suicide attempt and subsequent hospitalization because it, 

erroneously, considered it irrelevant to the inquiry. Nor did the judge consider 

the existence of immediate danger to property, N.J.S.A. 2C:25-29(a)(2), or the 

best interests of plaintiff and the parties' three children, N.J.S.A. 2C:25-29(a)(4), 

notwithstanding that both appear relevant to the inquiry.

Even were we to allow, as we do, that a court might consider a plaintiff's 

fear, measured objectively, among other factors, in determining whether the 

plaintiff was subject to immediate danger from the defendant, that doesn't 

address the separate question of whether the plaintiff needs protection from 

further abuse.6 The inquiries are not identical, especially considering that the 

6

 Although plaintiff's counsel did not object to the testimony of defendant's two 

witnesses about plaintiff's alleged offer to dismiss the restraining order in 

exchange for defendant giving plaintiff defendant's share of the house in the 

divorce on the basis of N.J.R.E. 408, we question whether such discussions were 

admissible under that rule, which generally bars evidence of settlement offers or 

negotiations. See N.J.R.E. 408 ("When a claim is disputed as to validity or 

amount, evidence of statements or conduct by parties or their attorneys in 

settlement negotiations, . . ., including offers of compromise or any payment in 
16 A-0900-20

settlement of a related claim, is not admissible either to prove or disprove the 

liability for, or invalidity of, . . . the disputed claim."). Although such evidence 

may be admitted for other purposes, see, e.g., Burns v. Burns, 223 N.J. Super. 

219, 233 (Ch. Div. 1987) (holding in a suit brought by the plaintiff to require 

former husband to secure a "get," that 1967 rule 52(1) did not bar evidence that 

husband had offered to do so in exchange for wife's payment of funds to the 

parties' daughter, thus countering husband's claim his refusal was based on 

religious reasons), it was not properly admitted for the purpose it was proffered 

— plaintiff's lack of fear of defendant — as plaintiff's subjective fear is 

irrelevant to a second prong Silver analysis for reasons already explained. 

Although it arguably might be admissible to show plaintiff's motivation in 

seeking a restraining order was not to protect herself and the parties' children 

from further incidents like the one on the day of the standoff as she testified, but 

instead to secure a leg up in the divorce action, see Murray v. Murray, 267 N.J. 

Super. 406, 410 (App. Div. 1993), the allegations here were certainly "not 

ordinary domestic contretemps." Corrente v. Corrente, 281 N.J. Super. 243, 250 

(App. Div. 1995). As plaintiff properly notes, the cases in which we have 

cautioned trial courts against giving "unfair advantage to a matrimonial litigant," 

have largely been harassment cases in which the plaintiff was attempting to have 

trivial allegations branded domestic violence, see, e.g., Peranio v. Peranio, 280 

N.J. Super. 47, 56 (App. Div. 1995) (holding defendant's statement "I'll bury 

you," uttered in the course of an argument during divorce not domestic 

violence), not cases such as this one involving a physical altercation between 

the parties in which their young children were also involved and ending with a 

three-hour stand-off with a SWAT team during which defendant set fires inside 

the parties' home.

If on remand defendant again contends these alleged discussions about 

settlement are in some way relevant to the issues the court must decide, the judge 

should weigh the probative value of the evidence against its prejudicial effect as 

required by N.J.R.E. 403, see Shankman v. State, 184 N.J. 187, 207 (2005), 

taking into account that victims of domestic violence often "bargain" with their 

abusers in order to maintain their safety and the safety of their children. See

Herbert, Silver & Ellard, Coping with an Abusive Relationship: I. How and Why 

do Women Stay?, 53 J. Marriage & the Family 311 (1991) (cited in Planned 

Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 892 (1992)). Even were 
17 A-0900-20

purpose of the Act is "to assure the victims of domestic violence the maximum 

protection from abuse the law can provide." N.J.S.A. 2C:25-18; State v. 

Hoffman, 149 N.J. 564, 584 (1997) (noting "[a]t its core, the 1991 Act 

effectuates the notion that the victim of domestic violence is entitled to be left 

alone," which "is, in essence, the basic protection the law seeks to assure these 

victims"); H.E.S. v. J.C.S., 175 N.J. 309, 329 (2003) (noting "[t]he law is clear 

that acts of actual violence are not required to support a finding of domestic 

violence"). Victims may be entitled to protection against further abuse even 

when the defendant does not pose an immediate threat to the plaintiff's safety. 

See, e.g., Pazienza v. Camarata, 381 N.J. Super. 173, 182 (App. Div. 2005) 

(finding plaintiff required FRO to prevent defendant from continuing to send 

unwanted communications intended to seriously annoy plaintiff "after he has 

the court to find the discussions admissible and that plaintiff was willing to 

barter away a protective order, we would not deem that fact barred a finding that 

a final restraining order was necessary "to protect the victim from an immediate 

danger or to prevent further abuse." Silver, 387 N.J. Super. at 127. As we have 

before reminded, "in domestic violence matters, judges are more than mere 

referees." J.S. v. D.S., 448 N.J. Super. 17, 21 (App. Div. 2016). "[T]he integrity 

of the justice system and the fact-finding process is not subordinate to the 

singular interests of the parties." State v. Garron, 177 N.J. 147, 180 (2003). 

That a domestic violence plaintiff might be willing to barter away a restraining 

order, or later dismiss one in exchange for some financial security, is not 

determinative of whether that plaintiff is entitled to the protection of a final 

restraining order in accordance with the Prevention of Domestic Violence Act, 

a decision entrusted by the Legislature to the trial judge. 
18 A-0900-20

been told no"). The trial court erred in not considering whether plaintiff needed 

an FRO to either protect her from immediate danger or to prevent further abuse, 

considering the entirety of the parties' relationship, their continued need for 

further contact into the future given the ages of their children, the couple's past 

history of domestic violence as well as all of what occurred on the day of the 

standoff. See Silver, 387 N.J. Super. at 128.

That brings us to our final point of error — the court's failure to consider

each basis plaintiff alleged in her complaint to support the entry of a restraining 

order. Although plaintiff alleged assault, harassment, criminal restraint and 

criminal mischief, the court considered only harassment. It was not free to do 

so. A plaintiff is entitled to have the court consider and rule on each theory of 

her complaint. Although plaintiff's counsel focused on assault and harassment 

in her summation, there was no indication that plaintiff was waiving other

pleaded grounds for relief. The court's failure to consider each predicate act 

alleged and to "focus" only on harassment, had the predictable effect of the court 

failing to consider all of what occurred on the day of the standoff in considering 

the second Silver prong. Indeed, the court never mentioned defendant's suicide 

attempt in the backyard within sight of his family, or that defendant's attack on 

plaintiff involved the parties' three young children, or his three-hour-standoff 
19 A-0900-20

with the SWAT Team, or the extensive damage, including fire damage, that

plaintiff caused to the parties' home that day.

Because the court's failure to consider the other acts beyond harassment

alleged in plaintiff's complaint and its misapprehension of the test of the second 

Silver prong appear from our review of the record to have pervaded the whole 

of its findings, we vacate the order dismissing plaintiff's domestic violence 

complaint, reinstate the TRO as amended by the judge presiding over the parties' 

divorce, and remand for a new hearing.

Although plaintiff urges us to find her entitled to entry of a final 

restraining order as a matter of law, we hesitate because the judge so limited the 

testimony about the prior history of domestic violence between the parties and 

made no real credibility findings. Accordingly, in an abundance of caution and 

respectful of the Family Part's "special jurisdiction and expertise in family 

matters," Cesare, 154 N.J. at 413, we remand for a new hearing with evidence 

to be admitted and evaluated consistent with the principles expressed herein.

Because the judge who heard the matter may have a commitment to his 

findings, the hearing should take place before a different judge. See N.J. Div. 

of Youth & Fam. Servs. v. A.W., 103 N.J. 591, 617 (1986).
20 A-0900-20

Vacated and remanded for further proceedings not inconsistent with this 

opinion. We do not retain jurisdiction.