New Jersey Family Courts view domestic violence and spousal abuse very critically, and that is one reason that consequences can be severe when a defendant is found to have committed domestic violence and the plaintiff is in need of protection. Once a final restraining order (FRO) is issued in New Jersey, it is permanent, and will last a defendant's lifetime. Ultimately, domestic violence restraining orders in New Jersey are under the purview of New Jersey's Prevention of Domestic Violence Act, and violating a restraining order (whether final or temporary) can result in an offender's arrest, criminal contempt charges, and jail time.
What can I do if the domestic violence restraining order is no longer necessary?
There are circumstances, however, when a lifetime FRO may no longer be necessary to protect the plaintiff, may no longer effectuate the plaintiff's needs, or may be unreasonably burdensome on the defendant. When these circumstances occur, the defendant, and at times the plaintiff, should take the proper steps to have the final restraining order reconsidered either through termination of the FRO or modification of the FRO. If these steps are not taken, and the FRO remains in place, or in the case of a modification, remains in place as is, the defendant will continue to face severe prospective consequences for any violation of the restraining order - This would obviously be unwise.
If a party would like a FRO to be terminated, the party must file the appropriate petition with the applicable New Jersey Family Court. The New Jersey county where the restraining order was issued will be the county in which to file. It must be understood, however, that New Jersey Family Courts will critically review a party's petition to terminate a restraining order. Circumstances that will be more favorably viewed by New Jersey Family Courts as a basis for a FRO to be terminated are when a couple, whether a husband and wife, boyfriend and girlfriend, and so forth, reconcile, and no longer want to have the FRO, or when the plaintiff and defendant both consent to the termination of the FRO for reasons appropriate and unique to the parties' circumstances. When these circumstances arise, the parties should take the proper steps to have the applicable New Jersey Family Court "vacate" the restraining order because, again, having the restraining order remain in place while the parties resume contact, relations, and so forth, can result in significant adverse issues.
Is a hearing required to dismiss a domestic violence restraining order in New Jersey?
When a party or parties petition Family Court, a hearing will be scheduled for a New Jersey Superior Court judge to consider the request to have the FRO vacated. Ultimately, the judge will consider the request and decide whether the request is voluntary, and not coerced by any other party, including the defendant. In instances when both the plaintiff and defendant petition Family Court to have the FRO vacated, or the parties reconcile, the judge will nonetheless consider the same issue, and will base the decision on factors specified under New Jersey Family Law.
The Carfagno Hearing
The hearing to dismiss a domestic violence restraining order in New Jersey is known as the "Carfagno" hearing. The hearing is named for the first New Jersey Family Law case that specified the factors that New Jersey Family Courts must use in making the decision whether or not to dismiss a restraining order was decided in 1995. The case, Carfagno v. Carfagno, 288 NJ Super. 424 (1995), held that the party seeking termination of the restraining order must establish "good cause" to do so
New Jersey Family Law, under Carfagno, requires that the Superior Court judge consider the following 11 "Carfagno Factors:"
- Is the consent of the victim of domestic violence voluntary? If the victim consents to terminating or modifying the restraining order, and this consent is voluntary and not coerced in any capacity, this is the only factor that New Jersey Family Courts will consider. If the victim does not consent to the termination or modification of the restraining order, the Superior Court judge will consider the remaining factors.
- Would a reasonable victim of domestic violence in a similar situation fear the defendant? For example, if a reasonable victim of domestic violence in a similar situation would continue to fear the defendant, a defendant's petition to have a restraining order terminated can be denied.
- What is the current relationship between the plaintiff and the defendant to the restraining order? For example, does the defendant exercise control over the plaintiff? Does the defendant exercise control over the plaintiff through shared custody of a child, or because the defendant provides for the plaintiff's financial support? Does the defendant exercise control over the plaintiff in another capacity?
- Does the defendant have any criminal convictions for contempt of the restraining order? If so, New Jersey Family Courts can consider such convictions as an attempt by the defendant to exercise control over the plaintiff.
- Does the defendant have alcohol or drug issues? If so, New Jersey Family Courts can consider dependency issues as a reason that the plaintiff requires continued protection from potential domestic violence.
- Has the defendant committed violent acts against other parties? If so, New Jersey Family Courts can consider other violent acts as a reason that the plaintiff requires continued protection from potential domestic violence.
- Has the defendant participated in, and completed, domestic violence counseling? If so, New Jersey Family Courts can consider a defendant's affirmative steps in addressing concerns regarding domestic violence or spousal abuse as an indication that the "cycle of power and control" between the parties has been broken. This is important because power and control are considered to be a primary cause of domestic violence. When it is more likely that the cycle has been broken (for example, a defendant's completion of domestic violence counseling), New Jersey Family Courts will be more receptive to terminating a restraining order.
- What is the age of the defendant? What is the defendant's health? New Jersey Family Courts will consider the age and health of the defendant. For example, an older, mature defendant who has learned from his or her mistakes is more likely to have a petition to have a restraining order terminated than a younger, immature defendant. If a defendant's health has significantly deteriorated since the issuance of the FRO to the point of being infirmed for example, New Jersey Family Court may be more inclined to believe that the victim of domestic violence is no longer in need of protection, or the same level of protection.
- Is the domestic violence victim conducting himself or herself in good faith? New Jersey Family Courts will consider the victim's motivation in opposing or agreeing to a petition for terminating a restraining order. A good faith basis will obviously be better-received by the judge, whereas conducting oneself in bad faith will be unacceptable.
- Have any other domestic violence restraining orders, Protection from Abuse orders, and the like, been issued against the defendant in other jurisdictions? New Jersey Family Courts will consider whether such orders have been issued in other New Jersey counties, in other states, and so forth. If other domestic violence protection orders exist, New Jersey Family Courts will view a request to terminate a restraining order more critically than if there are no other orders, whether prior or existing.
- Are there are other relevant factors as determined by the applicable New Jersey Family Court that can affect the Court's decision? [Any additional] factors may be raised by the parties [whether requesting or opposing that the restraining order be terminated], that the evidence presents to the court or considerations the court deems appropriate under the circumstances. Ibid, 435-442.
Ultimately, the New Jersey Superior Court judge will consider and weigh the above factors, and will in turn, decide whether a domestic violence restraining order should be terminated or modified.
New Jersey Attorney to Terminate a Domestic Violence Restraining Order | New Jersey Attorney for Restraining Order Termination Hearing
As noted, a New Jersey domestic violence restraining order, once issued, will last a lifetime. This often may be necessary, however, parties must understand that the circumstances that led to the issuance of the restraining order can change. At times, it may be best if a restraining order is terminated, or modified to better suit changed circumstances. A New Jersey restraining order attorney can assist parties in determining whether a final order should remain in place, or if changes can better meet parties' need. Whether a party is seeking to terminate or modify a restraining order, or is opposing such action, proper evidence and argument must be presented to achieve the desired outcome. Contact attorney Joseph D. Lento to learn how he can help with terminating a FRO, modifying a FRO, or opposing termination or modification.