Burglary as a Predicate Act for a Restraining Order

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 domestic violence. If the person requesting a restraining order cannot prove that the defendant committed a predicate act of domestic violence, then he or she will not be granted protection through a restraining order. 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 Burglary Under New Jersey Law?

In New Jersey, burglary is defined under the New Jersey Statutes at 2C:18-2 and states that someone is guilty of burglary if someone enters a structure and remains while knowing that they do not have permission to be there and intends to commit a criminal offense once inside. Burglary does not require that anything is actually stolen. Once a defendant entered or trespassed in a structure or property and had the mindset to commit a crime once inside, then they can be found guilty of burglary.

What Are Predicate Acts of Domestic Violence in New Jersey?

Restraining orders are intended to protect people from those who are in a family or domestic relationship. For a restraining order to be granted, there must be allegations and proof that domestic violence is present within the relationship. This can be proven in several ways, and a restraining order action can be processed in parallel with criminal prosecution for domestic violence or other related crimes. Predicate acts of domestic violence include:

  • Harassment
  • Assault
  • Terroristic Threats
  • Stalking
  • Sexual Assault
  • Criminal Restraint
  • Homicide
  • Kidnapping
  • False Imprisonment
  • Criminal Mischief
  • Burglary
  • Lewdness
  • Trespass
  • Robbery
  • 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?

New Jersey law generally allows domestic violence victims the right to seek a restraining order. To be considered a “victim of domestic violence” under New Jersey law, an individual must be:

  • At least 18 years of age (or an emancipated minor) who is a victim of assault from a spouse, ex-spouse, or any current or former roommates or housemates
  • A victim of assault from someone they share a child with or anticipate sharing a child
  • A victim of assault from a dating partner

New Jersey law also allows for someone to obtain a restraining order if he or she is the alleged victim of sexual misconduct or stalking in addition to domestic violence. Restraining orders are not available for people seeking protection from friends, acquaintances, neighbors, co-workers, etc.

What Must Be Proven for a Restraining Order to Be Granted?

For a restraining order to be granted, a petitioner must prove that the alleged acts of domestic violence occurred by the defendant and that continued protection of the court is necessary to ensure the safety of the petitioner. If a petitioner can only prove a criminal act by the defendant (such as burglary) and is not able to demonstrate that domestic violence is present, then a restraining order can rightly be denied. This can occur even while a criminal case continues separately against the defendant.

What Is the Burden of Proof of a Restraining Order?

The burden of proof is how much the petitioner/plaintiff in a case has to prove to be successful. Different burdens of proof exist for different kinds of cases. In criminal cases, the prosecutor must prove a defendant's guilt beyond any reasonable doubt. This is the highest burden we have in our court system.

Since restraining order cases are not criminal in nature, they have a lower burden of proof standard. This standard is known as the preponderance of the evidence. This standard requires that the petitioner/plaintiff prove that it is more likely than not that the events in question took place. If this burden of proof was described in a percentage, it would mean that the plaintiff proved their case by more than 50%. If an individual is facing a restraining order violation, then the burden of proof is beyond a reasonable doubt since restraining order violation cases are criminal in nature.

How an Experienced Attorney Can Help

An experienced attorney can help you in several ways in a restraining order case, regardless of what side you are on. If you are a petitioner, then an attorney can help you fill out the necessary petition and can help you understand the standards needed to prove your case. If your case is at the final hearing stage, then an attorney can represent you in court to help prove the defendant's culpability.

If you are facing a restraining order petition accusing you of acts of violence that are required for a restraining order, then an attorney can help defend your case. This can include conducting an independent investigation, cross-examining witnesses during a final hearing, and making legal arguments on your behalf. Having an attorney's help can be critical to your case's success. If you have legal questions, then call us so we can help!

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.

Contact a Family Law Attorney Today!

Attorney Joseph D. Lento has more than a decade of experience practicing Family Law in New Jersey. If you are having any uncertainties about what the future may hold for you and your family, contact our offices today. Family Law Attorney Joseph Lento will go above and beyond the needs for any client and fight for what is fair.

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