On Dec. 24, 2018, for jurisdictional purposes, Judge Mitchell I. Steinhart interpreted the Domestic Violence Act's phrase "member of the household" to include a nanny hired to care for the victim's children. E.S. v. C.D., 460 N. J. Super. 326 (Ch. Div. 2018).

Defendant had been employed by plaintiff, as a live-in nanny, for approximately seven months. For weeks after being fired, as a result of defendant's assaulting plaintiff's child, defendant made numerous harassing telephone calls and sent threatening texts to plaintiff.

Therefore plaintiff sought a domestic violence restraining order against defendant. However, because defendant's presence in the household had been based not on a familial or romantic relationship, but rather upon an employment relationship, the court had to first determine whether it had jurisdiction under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to 35.

Although "member of the household" is not specifically defined in the PDVA, Judge Steinhart astutely pointed out that courts have, since its adoption, liberally construed this phrase to include cases where there has been no familial, romantic, or sexual relationship. Specifically, it has been held to include a bookkeeper in plaintiff's renovation business who stayed with plaintiff because defendant needed a place to live, S.Z. v. M.C., 417 N.J. Super. 622 (App. Div. 2011); as well as a defendant living in a different apartment in the same complex as plaintiff, South v. North, 304 N.J. Super. 104 (Ch. Div. 1997). Indeed, this author, prior to retirement from the bench, had held that college suitemates (but not roommates) were considered members of the household. See Hamilton v. Ali, 350 N.J. Super. 479 (Ch. Div. 2001).

In E.S. v. C.D., Judge Steinhart listed, and properly applied, six factors to be considered in determining whether a person is a member of the household:

• The nature and duration of the relationship: seven months;
• Whether the relationship provided a special opportunity for controlling behavior and abuse: as their nanny, defendant had an opportunity to inflict abusive behavior on both plaintiff and her child;
• The length of time that has expired since the termination of the relationship: two months;
• The nature of any intervening contacts: none that would have given cause for exacerbation of defendant's conduct;
• The nature of the alleged acts of domestic violence: numerous phone calls including threatening and harassing text messages; and
• The likelihood of an ongoing relationship or continuing contact: none; defendant's employment with plaintiff had been terminated.

However, it should be noted that, 20 years ago, the court pointed out that a determination of whether a person is a member of the household must be based upon "the qualities and characteristics of the particular relationship and not upon a mechanical formula in a definition." Storch v. Sauerhoff, 334 N.J. Super. 226, 235 (Ch. Div. 2000). This is especially appropriate and necessary, in the domestic violence court, where discretion is needed to accomplish the purpose of the PDVA, i.e., to afford "the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18.

Indeed the phrase "member of the household" is so broad that one court has considered it "chameleon like" because "like obscenity, [it] falls into the category of terms which defy a precise definition, yet are readily recognizable when encountered." Fireman's Fund v. Caldwell, 270 N.J.Super.157, 163-164 (Law Div. 1993).

From personal experience, having previously sat in the domestic violence court, and having handled hundreds of temporary and final restraining orders, as well as numerous violations thereof, this author agrees that the court needs the type of discretion provided by a liberal interpretation of "member of the household."

Indeed, in many domestic violence cases, the facts may not necessarily fall precisely within the dictionary definition, or everyday understanding, of who is a member of the household. However, the circumstances of the relationship between the parties often require the court to provide the protection intended by the legislature when it adopted the PDVA, i.e., to extend protection "to any person who has a close relationship with his or her batterer." South, supra. at 109.

Judge Steinhart's decision is a logical, and welcomed, interpretation of "member of the household." The mere fact that the defendant was paid to be in the house does not change the fact that, for seven months, defendant clearly was in a "family or family–like setting." Desiato v. Abbott, 261 N.J. Super. 30, 33 (Ch. Div. 1992).

Judge Steinhart's granting of a final restraining order is, in this author's view, another example of how New Jersey courts, appropriately, continue to think outside the box to employ a very practical and non-mechanical interpretation of the law to protect victims of domestic violence.

Louis Locascio, a Monmouth County Superior Court judge from 1992 until 2009, is now of counsel with the Red Bank office of Gold, Albanese, Barletti & Locascio, where he heads up their civil and family mediation/arbitration department. He is a certified civil and criminal trial lawyer.