New Jersey courts take domestic violence very seriously. The number one goal for a judge when hearing an initial restraining order petition is to protect the accuser. It is an admirable goal, but a side effect of this is that temporary restraining orders are often relatively easy for a plaintiff to access. If the defendant wishes to argue their case, they have little way of recourse until the final restraining order hearing.
Temporary Restraining Orders
The point of a temporary restraining order (TRO) is to immediately protect an alleged victim of abuse. Evidence is a bonus but is not required for a plaintiff to acquire a TRO. The last thing that a judge wants to do is deny an order and later find that the plaintiff has been further victimized. For this reason, many TROs are granted based solely on the petitioner's testimony (as long as the judge finds it reasonably credible).
For the defendant, receiving a TRO can be a frustrating process. They don't immediately have a chance to defend themselves, and they must completely abide by the ruling, often leaving their home and children. Failure to do so can and will result in further damage down the road. The good news? The TRO period only lasts until the final restraining order hearing, which occurs within ten days.
What Is a Final Restraining Order Hearing?
One of the reasons that a TRO is relatively easy to attain is because it doesn't necessarily have any long-term legal repercussions. It's meant to be a placeholder to protect the accuser until a more detailed examination can take place. The defendant is ordered to separate from the plaintiff, but if the order is followed, there are no further legal consequences on the line until the hearing. If the judge rules in favor of the defendant — or if the claim is dismissed — there will be nothing on record to hinder the accused moving forward.
This is why the final restraining order (FRO) hearing is so important for the defendant. It is your first (and only) real chance to present evidence in your favor — which is why it is very advisable to retain a specialized New Jersey family defense lawyer the moment you are served. The difference between a favorable ruling and an unfavorable ruling could be life-changing.
How to Prepare for a FRO Hearing?
During the ten-day TRO period, both the plaintiff and the defendant will collect evidence to present at the FRO hearing. Types of evidence can include gathering and preparing witnesses, text messages, emails, video footage, and personal testimony.
Once again, having an attorney on your side is highly recommended and will make this part of the process much more efficient and effective. In addition to gathering evidence in your favor, your lawyer can utilize the discovery process to help build a defense against any evidence your accuser may plan to use against you. It is always best to go into these hearings prepared for every contingency — the last thing you want is a surprise.
Your attorney will likely also wish to help you organize your own testimony. In many domestic violence cases, witnesses are hard to come by. That means that personal testimony might be the key to your defense. With the help of your lawyer, you can plan to emphasize the strongest arguments in your favor and prepare for any questions that the plaintiff's attorney might ask.
The most crucial part of the ten-day period before your FRO hearing is to strictly follow the guidelines set forth in your TRO. It can be tempting to try and reconcile with your accuser outside of court, but once the TRO has been issued, that is no longer an option. Not only can violating your TRO lead to criminal consequences, but it will also do nothing to persuade a judge to rule in your favor. You may be required to cease contact with your children and other family members, leave your home, pay child support, or surrender guns and other weapons. Even if it seems unfair, you must do as it says in order to give yourself the best chance possible at your hearing.
The FRO Hearing Process
There is no jury at final restraining order hearings. The ruling is left in the hands of the judge presiding over your case.
In New Jersey, restraining orders are considered a civil matter. This is important to remember regarding FRO hearings because it directly affects the judge's eventual ruling. In criminal cases, the burden for guilt is 100% (beyond a reasonable doubt). In civil cases, the burden is only 51%. In other words, the judge will be basing their decision on which side they believe more.
As always, in the United States legal system, you are permitted to have a lawyer present with you at the hearing. However, because this is not a criminal case, the court will not provide an attorney for you. It is up to you to find and retain representation. Again, the smartest course of action is to do this immediately after receiving the temporary restraining order to give you and your lawyer the most time to coordinate a defense strategy.
Both parties must attend the FRO hearing. If the plaintiff fails to show, the case will likely be dismissed. If the defendant fails to show, the court will likely rule in favor of the plaintiff and issue a final restraining order. If extenuating circumstances exist, it is possible that the hearing is rescheduled.
If both parties are present, the hearing will begin. Throughout the course of the hearing, the plaintiff and defendant will be kept separate from adhering to restraining order guidelines.
Each party will be allowed to present evidence supporting their case. This can include:
- Communication between the two parties (texts, phone messages, etc.)
- Police records
- Financial records (if seeking support)
- If property damage is alleged, objects may be submitted (or photos if the object is too large to exhibit in court)
- If physical violence is alleged, the plaintiff may provide photos of bruising or medical records.
Even though it is not a criminal trial, all evidence must be admissible, which means that it was collected and presented in accordance with state law. Your lawyer will help you decide what will best help your case and use the discovery process to preemptively counter evidence that the other side plans to use.
Aside from physical forms of evidence, the hearing will also hinge on the testimony of the two parties involved and any witnesses they may wish to call. Witnesses can be family members (including children), police officers, doctors, nurses, or even a complete stranger — anyone with first-hand knowledge of the abuse that occurred. If someone with pertinent information refuses to be a witness on your behalf, it may be possible for them to be subpoenaed to testify.
Once the witnesses (including the plaintiff and defendant) have been sworn in, they will be subject to cross-examination. Attorneys from both sides will ask relevant questions and present rebuttals to further their case. Cross-examination can be stressful and disarming. During the ten-day TRO period before the hearing, your lawyer will likely devote a significant amount of time preparing you for this part of the hearing.
After all evidence and testimony have been submitted, and the attorneys have presented their oral arguments, the judge will make a ruling based on the strength of the information and the cases presented from both sides. If the judge rules in favor of the defendant, the case will be dropped, and there will be no further action taken. The TRO will not appear on any background checks or public records.
What If the Judge Rules Against You?
If the judge decides to uphold the final restraining order, you will be fined up to $500. The non-financial penalties are much more substantial.
First, you will be forbidden from going to certain locations, such as the home and work of your accuser, or from locations within a specified distance of their whereabouts. You may also be barred from seeing the plaintiff's relatives or visiting their homes.
If you have children, your ability to parent them or visit them may also be affected. The court may order you to attend classes or be evaluated in order to retain your parenting status.
You will be fingerprinted and will be unable to possess any weapon or weapon-related permit while the FRO is in effect (or at minimum two years).
Lastly, you will be entered into a central registry for domestic violence offenders. The effects of this penalty can touch every aspect of your life. It will show up on a background check, so your employment may be in jeopardy. Housing might be difficult to obtain. It may prevent you from participating in community programs or bar you from acquiring certain licenses.
It is also important to remember that a FRO is permanent. Unless the plaintiff chooses to dismiss it, or you win an appeal, it will remain in effect forever. Because the consequences for violating the order are extreme, it would be a dangerous and illegal risk to contact the plaintiff in the future and ask them to dismiss. This means that your absolute best chance at avoiding these penalties is at the FRO hearing. There is simply too much on the line to show up to court with a half-baked defense.
Can You Appeal the Judge's Decision?
If either the plaintiff or defendant disagrees with the judge's ruling, they have 45 days to submit a formal written request to appeal. If the appeal is granted, a judge from a higher court would examine the facts of the case and could potentially come to a more favorable decision. Your lawyer can give you more information about the appeal process if the hearing does not result in your desired outcome.
What If the FRO Is Violated?
When a FRO hearing doesn't go your way, it can be frustrating. Your first instinct may be to ignore the order or lash out — but doing so can result in severe consequences. While restraining order cases are civil matters, violation of a restraining order is a criminal offense.
Per N.J.S.A. 2C: 29-9, violation of a FRO is a fourth-degree crime in itself. It can result in fines or jail. If another crime is committed at the same time, the order violation may be used to enhance the penalties. However, the statute also states that the violation must happen “purposely and knowingly.” If you have violated your FRO by accident, a lawyer should be consulted to build a legal defense.
Is An Attorney Necessary At an FRO Hearing?
Final restraining order hearings have the ability to change your life in a single day. When the stakes are that high, why take a chance? You won't regret having a lawyer — but if the judge rules against you, you will certainly regret not having one.
Since the burden of proof isn't nearly as high as a criminal trial, the arguments a lawyer makes on your behalf become even more crucial to the outcome of the hearing. You are not aiming to prove anything beyond a reasonable doubt. Instead, both sides are aiming to sway the judge to their corner. When that is the case, the side that is more prepared is often able to present a better argument. While the evidence is no doubt important, an attorney that can present a well-argued and complete case is your best chance at a positive outcome.
Retain the Lento Law Firm
Your FRO hearing will be scheduled within ten days of your temporary restraining order being issued. You have no time to waste.
Joseph D. Lento is an attorney with expertise in New Jersey restraining order cases. He will exhaust all options to get your order dismissed and work tirelessly to build you the best defense possible for your hearing. Reach out to the Lento Law Firm online or by calling 888-535-3686 to discuss your case.