Balancing Women's Safety Against Children's and Fathers' Rights

A New Jersey court ruling on domestic violence has set off a predictable, one-sided debate about protecting women from domestic violence.

In the ruling, a New Jersey Superior Court judge said that it was too easy to get a restraining order against an allegedly abusive husband or father. He said that restraining orders should be granted only when there was “clear and convincing” evidence of a threat.

The issues are a bit complicated. Restraining orders are indeed an important way to keep an abusive husband away from his wife. But when they are issued in error, they also keep a falsely accused father away from his children.

Until now, the standard in New Jersey has been that a “preponderance” of evidence is required for a restraining orders. That’s an easier standard to meet than “clear and convincing” evidence.

Sandy Clark, associate director of the New Jersey Coalition for Battered Women, was troubled by the ruling, arguing that it will women will have a harder time getting restraining orders against abusive husbands. “They are typically the only witnesses to the abuse,” Clark told the Associated Press. “So to have to show [abuse] by clear and convincing standard would be challenging.”

If the ruling stands—it is not yet binding on New Jersey courts—getting a restraining order in New Jersey will be indeed tougher to do.

Jane Hanson, executive director of Partners for Women and Justice in Montclair, N.J., is clear about the implications of that. “As a practical matter, there will be fewer restraining orders issued, so there will be more domestic violence,” she told the Newark Star-Ledger.

She doesn’t actually know that; but it’s a reasonable and plausible argument. I think she’s right. But what she neglects to include is the plausible argument on the other side: If fewer restraining orders are issued, fewer fathers will be unfairly kept away from their children.

I’m not a legal scholar, and I couldn’t possibly say what the legal standard for a restraining order should be. But as this issue is given further attention in the courts, let’s remember that mistakes can be made on both sides.

Too few restraining orders, and more women are harmed. Too many, and more fathers and children are harmed.