Restraining Orders in New Jersey
A restraining order is an order issued by the court that is intended to protect a victim of domestic violence. A restraining order is generally meant to prohibit the party it is entered against from contacting or communicating with the party on whose behalf the order is entered. The provisions contained in this type of court order are based upon the circumstances and vary from case to case.
New Jersey law recognizes two types of retraining orders: a temporary restraining order and a final restraining order. Both temporary restraining orders (“TRO”) and final restraining orders (“FRO”) are granted to protect the safety of the victim, not to penalize the alleged perpetrator. However, the effects can frequently feel punitive because incidents of domestic violence go onto a person’s record, which can be seen by potential employers. Additionally, a person may lose his or her right to possess a firearm. Moreover, the individual will be arrested for a criminal offense in the event that the plaintiff alleges a violation of the restraining order in the future.
Restraining orders in New Jersey are strong protection for victims of domestic abuse, but they are devices that in practice are often abused. If a complaint for a restraining order has been filed against you, you should take action immediately to secure the services of an experienced criminal defense attorney.
Temporary Restraining Order
Temporary restraining orders are frequently issued in order to provide temporary protection from alleged domestic abuse, and in lieu of a possible final restraining order, which requires a firmer evidentiary basis, and which may be entered at a later time. In order to issue a TRO, the judge must have a sufficient basis to believe domestic violence has occurred. TROs are often issued on little more than the allegations of the victim.
Final Restraining Order
Within ten (10) days of issuance of the TRO, a hearing will be conducted by a Superior Court Judge in the Family Division to determine whether or not the TRO shall become a final restraining order. At the hearing, both parties may be represented by counsel.
The standard of proof under which the elements must be demonstrated is a lower standard of proof than is required in a criminal trial. In a FRO hearing, the standard of proof is that the elements be proved by a “preponderance of the evidence,” a standard that has often been explained as being met where “it is more likely than not” that the elements have been satisfied. In a criminal trial, the standard of proof is the more forbidding standard of “beyond a reasonable doubt.”
At the hearing, the alleged victim will first testify about the incident of domestic violence that gave rise to the restraining order. He or she can also call witnesses to bolster the claim. Exhibits and evidence can be entered including emails, text messages, voice mail messages, etc. The defense then has an opportunity to cross-examine the alleged victim and any witnesses who take the stand. The defendant will then have the ability to testify and present any evidence and/or witnesses they wish. The plaintiff also has the right to cross-examine and make a rebuttal testimony once the defendant rests. Throughout the proceeding, judge may ask various questions to both parties and witnesses. Once all testimonies have been taken, the judge will make a decision as to whether a FRO is warranted.
Domestic violence cases often present difficult issues of proof, as there are often no witnesses to the alleged abuse. Such cases often come down to a “he said she said” contest, with the court ultimately siding with the party that the court, in light of all the evidence presented, views as the more believable party. While it takes very little to get a TRO, it takes a credible position to prevent a FRO.
When evaluating whether a FRO should be entered, the judge will analyze the following three factors exist: (1) whether a predicate act of domestic violence occurred; (2) whether a prior history of domestic violence exists; and (3) whether the victim is in reasonable fear for their safety and a restraining order is necessary to ensure their safety.
To determine if an act of domestic violence has occurred, the judge will consider whether the act or acts of the alleged abuser constituted any of the following crimes under the New Jersey Criminal Code:
- Harassment 2C:33-4
- Assault 2C:12-1
- Criminal Mischief 2C:17-3
- Terroristic Threats 2C:12-3
- Sexual Assault 2C:14-2
- Lewdness 2C:14-4
- Stalking 2C:12-10
- Criminal Trespass 2C:18-3
- Burglary 2C:18-2
If the judge determines that a predicate act of domestic violence did not occur, then the restraining order will be dismissed. If the judge finds that a predicate act of domestic violence did occur, he or she will also consider whether a previous history of domestic violence exists between the parties (including any prior threats, harassment, and physical violence). Finally, the judge will consider whether victim is in reasonable fear for their safety and a restraining order is necessary to ensure their safety
If the judge finds that there is evidence to support the victim’s complaint after analyzing the above factors, a FRO will be issued to the victim. The judge will then decide what type of relief should be granted to the victim. Available reliefs include: protection from future violence, prohibitions against contact and harassment, custody of any minor children and safe conditions of parenting time, support, rent or mortgage payments, temporary possession of personal property, professional counseling and/or prohibition against weapon possession. After the FRO has been issued, a copy of this order will be given to both parties. A file copy of the final order is also sent to the police department of the town where the victim lives.
If the defendant does not appear in court after being properly notified, the court can still enter a FRO as long as the victim is there to testify. A copy of the final order will be served upon the defendant.
Removing a Restraining Order
A final restraining order, under New Jersey law, is permanent and remains in effect unless the alleged victim or a court moves for its removal. It remains in place until the Plaintiff comes to Court and requests that it be dismissed – after answering a series of questions and often after getting counseling from a Domestic Violence Counselor in the Court to determine whether or not the request for dismissal is genuine and not coerced. Even if the Defendant moves to another state the restraining order remains in place. Years later the restraining order is still active.
Violating A Restraining Order
Any violation – any contact at all- can result in an arrest. Violations of the terms of the FRO (or even a TRO) are considered criminal offenses which can, and in some circumstances must, result in a jail sentence. While the original restraining order is issued in the civil court, contempt actions are heard under the criminal code.
The defense attorneys at theWolf Law have over 25 years of experience in defending clients at restraining order hearings and shall make sure that you are given every opportunity to avoid imposition of a FRO. Please do not hesitate to contact our office for a free initial consultation if you have an issue concerning a temporary or final restraining order in New Jersey.