To get a temporary or final protective order, the person asking for the order must prove certain things to the court. One of these requirements is that the defendant committed a predicate act of violence. One type of predicate act that can be the basis for a restraining order in New Jersey is aggravated assault. If you have legal questions about requesting a restraining order or defending against a restraining order, then make sure that you speak to an experienced attorney.
What Is Aggravated Assault Under New Jersey Law?
Aggravated assault is defined under New Jersey law at 2C:12-1b. It is a criminal charge that can be charged at different levels and can be as serious as a second-degree criminal offense which carries up to ten years in prison upon conviction. In New Jersey, aggravated assault can be charged for 11 different types of alleged conduct. Some of the most prevalent types of aggravated assault include:
- Causing or attempting to cause a serious injury to another
- Causing or attempting to cause a serious injury to another using a weapon
- Using a weapon and recklessly causing an injury to another
- Knowingly pointing a gun at someone else (it does not matter whether is it loaded)
- Committing assault on a government employee during their duties (such as a police officer)
- Causing an injury to another while attempting to escape law enforcement
- Causing an injury to another while committing a theft crime
This is a partial list of the circumstances that can result in an aggravated assault charge. An allegation of aggravated assault can be a predicate act of domestic violence which can lay the foundation for a restraining order. Aggravated assault is a serious accusation that can lead to both a restraining order and criminal charges.
What Are Predicate Acts of Domestic Violence in New Jersey?
Restraining orders can protect victims of domestic violence from several different kinds of allegations which are also criminal in New Jersey. If a petitioner is seeking a domestic violence restraining order, then there must be an allegation of a predicate act of domestic violence. There are several types of predicate acts that are listed under New Jersey law. Restraining order cases can be processed at the same time as criminal charges. Predicate acts of domestic violence include:
- Terroristic Threats
- Sexual Assault
- Criminal Restraint
- False Imprisonment
- Criminal Mischief
- Cyber Harassment
There are other forms of conduct that can qualify as a predicate act of violence. Be sure to speak to an experienced attorney so you can confirm if a specific act can be considered a predicate act of violence.
Who Can Obtain a Restraining Order in New Jersey?
In New Jersey, victims of domestic violence, along with victims of sexual assault and stalking, can request and acquire a restraining order from their local county court. To be considered a “victim of domestic violence” under New Jersey law, an individual must be:
- 18 years old (or an emancipated minor) who is a victim of assault at the hands of a spouse, former spouse, roommate, or former roommate
- A victim of assault by someone that he or she has a child in common with, or
- A victim of assault by a dating partner
If the person seeking a restraining order is not a victim of domestic violence, then they will not be able to seek a restraining order unless there is an allegation of sexual assault or stalking. Restraining orders are generally not meant to restrain individuals for the alleged acts of friends, acquaintances, neighbors, co-workers, etc.
What Is the Burden of Proof of a Restraining Order?
The legal burden of proof is the amount a case must be proven in court for a case to be successful. Aggravated assault, as discussed above, is a criminal offense that requires the highest burden of proof that exists in our legal system. The burden of proof for a criminal charge is proof beyond any reasonable doubt.
The burden of proof for a restraining order is different because a restraining order is not a criminal offense but is a civil action. The burden of proof for civil actions is lower and for a restraining order is one by a preponderance of the evidence. This means that it is shown in court that the actions more likely than not happened. In terms of a percentage, this means that the case was proven by more than 50%. This makes getting a restraining order easier for a petitioner when compared to filing criminal charges. You have the right to have an attorney represent you, whether you are the petitioner or defendant in a restraining order case.
How an Experienced Attorney Can Help
An experienced attorney can help you in several ways in a restraining order case, regardless of whether you are the petitioner or defendant. You have rights as both a petitioner and defendant during the restraining order process, so it is important to have an attorney's help as the results can significantly affect your life. Each case is unique and should be reviewed by an experienced attorney to help you determine your best path to success. If you have legal questions, then call us at the Lento Law Firm today!
Contact the Lento Law Firm Today
If you have questions about restraining orders, then make sure you speak to an experienced attorney. A restraining order can be a useful tool for victims of violence but can also be based on false accusations. The attorneys at the Lento Law Firm have the experience and knowledge to help you whether you are seeking a restraining order or defending against one. To learn why the Lento Law Firm is the right choice, call us toll-free at 888-535-3686 or contact us online.