“Make it stop!” is a familiar plea I hear from family law clients when an ex-spouse or partner files yet another application in Family Court. It can be extremely frustrating to be on the receiving end of the second, third, fourth….tenth….application. Post-judgment family actions can continue for years after the parties are divorced or initially resolved their issues (or so they thought). Especially if there are children in common, litigants will have many years of contact ahead of them.
Unfortunately for those on the receiving end of court filing after court filing, there is no bright line rule about how many times a party can file an application in Family Court. A court generally will not intervene to limit a party’s access to the court absent exceptional circumstances because it is a constitutional right under the Due Process Clause of the 14th Amendment of the United States Constitution. In the New Jersey Appellate Division case of Parish v. Parish, 412 N.J. Super. 39, 48 (App. Div. 2010), the Appellate Court held that a complete and blanket denial of a party’s access to the courts without regard for an application’s merits would be a denial of due process. However, all hope is not lost for litigants who feel they have been abused by frivolous or excessive court filings.
A court can, in some instances, limit a litigant’s access to it. But, before any prior restraint on access can be considered, the use of the litigation to harass must be first “objectively determinable.” D’Amore v. D’Amore, 186 N.J. Super. 525, 530 (App. Div. 1982). So, it has to be apparent to a reasonable observer that a claim is being made by one party to harass the other.
Many family law litigants feel they are being attacked or harassed merely because they are back in court, yet again. Still, that does not mean a court filing will rise to the level of harassment. For example, what if a party files an application seeking a change in parenting time, then three months later files an application to take advantage of the child tax credit, and then two months later files an application to compel the other party to contribute to the cost of extracurricular activities? The party on the receiving end of multiple court filings may feel such actions are taken to “get” that person, make him/her incur unnecessary fees or even, to harass. But without more, a reasonable observer likely could not determine that on their face, those filings were harassing in nature. Thus, the court would not limit a litigant’s access to it in those circumstances. And, before taking legally drastic measures to limit a party’s access to the court, a court could try to deter future filings by awarding counsel fees to the responding party or sanctioning the filing party.
Where a pattern of frivolous litigation can be demonstrated, a court can prevent an application from being filed when other available sanctions, such as monetary penalties, proved unsuccessful as a deterrent. Rosenblum v. Borough of Closter, 333 N.J. Super. 385 (App. Div. 2010). In the event a restraint is imposed on a party, the restraint must apply to the “specifically identified claims which have been determined to fall within one of the recognized categories of objective harassment.” D’Amore, 186 N.J. Super. at 530. A court will not simply issue a blanket denial of a litigant’s access to it.