To be granted a protective order such as a restraining order, the person seeking the order must prove certain things to the court. If a restraining order is being sought due to a domestic relationship, then it must be shown that the defendant committed what is known as a predicate act of violence. If this cannot be proven to the court, then the restraining order petition will fail. 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 Criminal Mischief Under New Jersey Law?
Criminal Mischief is defined under New Jersey law at 2C:17-3. It is a criminal charge that can be charged as either a third-degree or fourth-degree criminal offense. A conviction for criminal mischief can result in up to five years in prison. In New Jersey, criminal mischief is also known as vandalism and can be the basis for a restraining order. Some examples of actions that can be charged as criminal mischief include:
- Damaging another's property
- Destroying another's property
- Tampering with oil or water lines
- Tampering with gas
This is a partial list of the circumstances that can result in a criminal mischief charge. An allegation of criminal mischief can be a predicate act of domestic violence which can lay the basis for a restraining order petition. Criminal mischief 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 based on domestic violence allegations can be sought for several different kinds of criminal conduct in New Jersey. If a petitioner is seeking a restraining order based on a domestic relationship, 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. Predicate acts of domestic violence include:
- Terroristic Threats
- Sexual Assault
- Criminal Restraint
- False Imprisonment
- Criminal Mischief
- Cyber Harassment
Other forms of harmful conduct can also qualify as a predicate act of violence. The facts of each case are unique. Be sure to speak to an experienced attorney so you can confirm that specific conduct can be considered a predicate act of violence in a restraining order case.
Who Can Obtain a Restraining Order in New Jersey?
In New Jersey, only specific people can seek and obtain a restraining order. Those who are alleged victims of domestic violence, sexual assault, and stalking can seek and obtain 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 who is a victim of assault at the hands of a spouse, former spouse, and current or former roommate
- An emancipated minor who is a victim of assault by a spouse, former spouse, and current or former roommate
- Someone who shares a child with his or her assailant
- A victim of assault by a dating partner
If the petitioner is not a victim of domestic violence, then the only other avenues to obtain a restraining order are through allegations of sexual assault or stalking. Restraining orders are generally meant to protect people from those who are close to them and can cause immediate harm. Unless there is an accusation of sexual assault or stalking, the alleged acts of friends, acquaintances, neighbors, co-workers, etc., are generally not eligible for restraining order protection from the court.
What Is the Burden of Proof of a Restraining Order?
When a petitioner files for a restraining order in court, he or she is responsible for proving the case to a certain level before a restraining order is granted. The amount a case must be proven in court is known as the burden of proof. As defined above, acts of vandalism can result in a criminal mischief charge under New Jersey law. If someone is facing criminal charges, then the prosecutor must prove the defendant's guilt beyond any reasonable doubt.
The burden of proof that a petitioner must demonstrate in order to obtain a restraining order is lower than a criminal charge because a restraining order is a civil action. The burden of proof in civil cases such as a restraining order requires the petitioner to prove the case by a preponderance of the evidence. A preponderance of the evidence is met when the petitioner proves in court that the conduct alleged more likely than not happened. In terms of a percentage, this means that the judge believes the petitioner by more than 50%. This lower burden of proof makes it easier for a petitioner to get a restraining order when compared to the criminal process. Regardless of you are a petitioner or defendant in a restraining order case, you have the right to have an attorney represent you.
How an Experienced Attorney Can Help
An experienced attorney can help you in your restraining order case, whether you are seeking a restraining order or defending against one. Both petitioners and defendants have legal rights in restraining order actions. Make sure your rights are protected with the help of an attorney in assessing and representing your case.
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.