An expungement is a legal process that allows someone to remove a criminal conviction from his or her public criminal record. In New Jersey, there are several requirements that someone must complete before an expungement can be granted. Only certain types of criminal convictions can be expunged. Make sure you understand your legal options and speak to an experienced attorney if you have a restraining order issue.
Restraining Orders Briefly Explained
A restraining order is a protective court order meant to protect an individual from harm by someone the individual is involved with at a domestic level. Restrictions on the defendant can include contacting or coming within a certain distance of the person seeking protection. A restraining order is meant to protect victims from any subsequent acts of violence. Restraining orders can call for no contact with the protected party and can also limit the defendant's interactions with the plaintiff's family, friends, acquaintances, roommates, and/or other relevant persons. A restraining order can prohibit the defendant from going to the workplace or residence of the petitioner. If the defendant lives in the same residence as the plaintiff, then he or she can be forced to move.
What Is the Legal Classification of a Restraining Order?
Restraining orders in New Jersey are legally classified as civil actions, although they mirror the type of orders that are present in criminal cases. If a restraining order is granted against someone, then he or she is not facing a criminal charge, nor have they been convicted of one. The only time that a restraining order action can be considered a criminal matter is when there is an allegation of a violation of the provisions of the restraining order. If the person restrained in a restraining order violates the order in any way, then the individual will be arrested and will face a criminal charge which can turn into a conviction that appears on the individual's criminal record.
Is Expungement the Proper Remedy?
Expungement is not the proper remedy to remove a restraining order, as expungements are reserved for the removal of criminal convictions. Since a restraining order is a civil matter, there is nothing to expunge from someone's record if a restraining order is granted against them. If a temporary restraining order is granted and later dismissed, then there is nothing that will appear on the defendant's criminal record. If someone is convicted of a restraining order violation, then an expungement can be the proper remedy to remove the conviction if the alleged act qualifies for expungement.
The Case of Carfagno v. Carfagno
Restraining orders are permanent, so the proper approach is to file a motion for the removal of the restraining order. Under the New Jersey case of Carfagno v. Carfagno, an individual can seek to have a restraining order canceled if he or she can prove that there is a significant change in circumstances and that continued protection of the court is no longer necessary. Eleven factors will be considered by the court, including consent of the victim, whether drugs and alcohol are present, and if there have been any restraining order violations. If the court finds that the defendant is still a continued threat to the petitioner, then the Carfagno motion will be denied. It is critical to understand the legal standards necessary to have a restraining order canceled by the court to properly seek or defend against this type of motion.
What Other Options Are There to Remove a Restraining Order?
If you have had a restraining order granted against you, then you also have the potential option to appeal the decision. An appeal can be filed if the person appealing can show that a legal mistake was made by the court, and the appeal was filed within 45 days of the court's decision. It is important to understand that appeals are not a chance to present new evidence or show a change in circumstances. Appeals are a review of the record to ensure that the court followed and applied the law correctly to the case. A proper appeal requires a showing of specific instances where the court made a mistake and that the mistake was material to the outcome of the hearing. If a mistake was made that didn't affect the outcome, then the appeal will be denied. If you want to file an appeal, then speak to an attorney right away.
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 keep a restraining order in place if the named defendant attempts to have it canceled. If you are the defendant in a restraining order, then having an attorney on your side can be crucial to demonstrate to the judge that the 11 factors considered show that continued protection is no longer necessary. This can include a comprehensive motion that outlines how the defendant is no longer a threat and can seek to include the petitioner if he or she agrees. Having an attorney's help can be critical to winning a motion hearing, whether you are the petitioner or defendant. If you have legal questions, then call us so we can help!
Contact the Lento Law Firm Today
If you have questions about expunging a restraining order, 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 remove a restraining order from your criminal record. To learn why the Lento Law Firm is the right choice, call us toll-free at 888-535-3686 or contact us online.