Dispute Between Adult Children About Their Parents’ Nursing Home Placement Is Not Domestic Violence

This case arose from the conduct of siblings who held divergent views regarding placing their parents in a skilled care facility.

The parties, two brothers and their sister, are the adult children of elderly parents. They grew up in New Jersey, but defendant brother moved to Long Island, NY, 36 years ago. Defendant’s younger brother, plaintiff, and his sister remained in New Jersey and were the principal caregivers for the parties’ elderly parents. As the parents’ health began to decline, the bulk of the responsibility for caregiving fell to plaintiff, who was empowered to make medical decisions for each parent. Plaintiff also was named agent under the parents’ powers of attorney.

The health of the parents continued to decline significantly. Plaintiff and his sister eventually became convinced that their parents needed a level of care that could not be provided at home and, as a result, should be transferred to a nursing home. Defendant vehemently disagreed with his brother’s decision. He began to make arrangements to provide care for his parents at home when plaintiff permanently moved their parents to the proposed facility.

The parties sent a series of crude, violent and abhorrent text messages and emails to each other resulting from their disagreement about their parents’ care. The content of the messages contained coarse, gutter language and name calling. Some texts included defendant’s demands for financial documents and stated his intention to engage lawyers and to inform Medicare and Medicaid about his parents’ assets, implying plaintiff and his sister had not been forthright in making disclosures. However, many emails conveyed nothing more than defendant’s desire to provide care for his parents or reflect bitterness because of the decisions plaintiff made.

Defendant and plaintiff also engaged in a physical altercation on one occasion when defendant came to visit his parents. As a result, plaintiff filed for a restraining order under the Prevention of Domestic Violence Act. After a trial, the judge entered an oral opinion, concluding that defendant engaged in at least one act of harassment resulting from the test messages and emails, and held that the physical altercation amounted to simple assault. Accordingly, the judge concluded plaintiff proved an immediate danger, warranting entry of a final restraining order against defendant.

Defendant filed an appeal challenging the final domestic violence restraining order, arguing that the judge mistakenly found an immediate danger warranting the entry of a final domestic violence restraining order.

Emphasizing the care a trial court must exercise to distinguish between ordinary disputes and disagreements between family members and those acts that cross the line into domestic violence, the appeals court ruled that, although defendant authored and sent the text messages and emails, the content of which was all offensively coarse, there was no evidence to support a finding that defendant sent the message with the intent to harass:

The [Prevention of Domestic Violence] Act “is not designed to interdict all forms of unpleasant exchanges between parties.” Further, it “is not a primer for social etiquette and should not be used as a sword to wield against every unpleasant encounter or annoying interaction that occurs between household members… .” A mere expression of anger between persons in a requisite relationship is not an act of harassment. … We have no doubt the divergent views regarding placing their parents in a facility was emotional and highly stressful for both parties. [However,] vulgar name-calling alone is not domestic violence. A fundamental element making a communication criminal harassment is the purpose to harass[, which is lacking in this case.]

In addition, although the appeals court, like the trial judge, concluded that defendant committed simple assault, the appeals court ruled that the act, alone, was an insufficient basis to enter a final domestic violence restraining order. Rather, once a plaintiff establishes a predicate act, like simple assault, the court must determine “whether a restraining order is necessary, upon an evaluation of the facts . . . to protect the victim from an immediate danger or to prevent further abuse”. Upon evaluation, the appeals court ruled that the restraining order was not necessary.

Therefore, the appeals court reversed the trial court’s order, and vacated the final restraining order.

The case is annexed here – R.G. v. R.G.