Temporary Restraining Orders, also known as TRO's, and Final Restraining Orders, FRO's, can be an absolute necessity to protect a legitimate victim of domestic violence in New Jersey. At times, however, and for various reasons, parties may seek a TRO or FRO in bad faith. Parties may make false domestic violence allegations to try to have a child custody case to go in their favor, may be trying to "get back" at the defendant because of jealousy or other negative emotions caused by the nature of their relationship, and so forth. The potential reasons why a plaintiff in a New Jersey domestic violence case will make false claims of domestic abuse are countless.
Because false domestic violence allegations can result in a TRO or an FRO against the defendant, the stakes can be very high in such matters. Restraining orders, either "temporary" or "final," can greatly affect a defendant's child custody rights, can cause employment and financial issues because of how TRO's and FRO's can affect one's work or professional licensing, and can also result in criminal charges and the prospect of jail time is a defendant is accused of violating a restraining order. Because these potential consequences are an unfortunate reality when someone is falsely accused of domestic violence charges, the proper steps must be taken to defend against such claims.
What is considered "Domestic Violence" in New Jersey?
"Domestic Violence" in New Jersey can come in many forms, and can be referred to by various names; domestic abuse or spousal abuse, for example. In addition, people may often, albeit mistakenly, believe that only men can be responsible for domestic violence, but this is not the case. Husbands, wives, boyfriends, girlfriends, parents, and other relations can commit acts of domestic violence as defined by New Jersey law. Domestic violence in New Jersey is defined by statute - N.J.S.A. 2C:25-19 – New Jersey Code of Criminal Justice - Prevention of Domestic Violence Act of 1991. Specifically, the "New Jersey Prevention of Domestic Violence Act" defines "domestic violence" as the occurrence of certain acts inflicted upon a person protected under the Domestic Violence Act by an adult or an emancipated minor.
The New Jersey Prevention of Domestic Violence Act prohibits acts that may be obvious, such as harassment, stalking, assault, and sexual assault. The Act also prohibits offenses that may not immediately be considered as acts of domestic violence, such as kidnapping, burglary, homicide, and more.
When falsely accused of domestic violence, what should I expect?
When a person, whether a man or woman, is falsely accused of domestic violence in New Jersey, they often will become aware of their predicament when they are served with a Temporary Restraining Order. For a defendant to be served a TRO, certain steps have to take place in advance. The defendant obviously has to be served the actual TRO, but what occurs prior to that taking place is of more important note regarding false claims of domestic abuse.
The plaintiff (the alleged victim) in a domestic abuse case must initially appear in Court to make allegations that invoke the temporary protection of New Jersey Prevention of Domestic Act. When a plaintiff makes such allegations at the TRO hearing, the defendant is not present; therefore, it is considered an "ex parte" court proceeding (a one-sided proceeding where unilateral communications are made by one party to the Court; in this case, the applicable party being the plaintiff).
Not only is the defendant not present when the initial allegations are made, the defendant generally will not even know that such a proceeding is taking place. Despite matters taking place "behind the scenes," the stakes cannot be any higher for the defendant when falsely accused of domestic abuse by the plaintiff at the TRO hearing. If the Court finds that the plaintiff meets his or her burden in establishing that a temporary restraining order should be issued against the defendant, a TRO can prevent the defendant from returning or residing at his or her house or apartment, even if the defendant's name is on the mortgage or lease, and even if the defendant is financially responsible for the house or apartment.
Because the defendant is not present at the TRO hearing, the defendant cannot contest false allegations made by the plaintiff. In addition to concerns as basic as the defendant being forced from his or her own house or apartment, if a TRO is granted to the plaintiff, the defendant, at a minimum, will generally be ordered to stay away from the plaintiff and to have no contact with the plaintiff (either on the defendant's own or through third parties).
How can I fight false domestic violence allegations in New Jersey?
It is far from ideal when confronted with false claims and how a temporary restraining order can upset a defendant's life, but defendants should take solace in knowing that they will be able to fight the TRO at a "final" hearing that, per New Jersey law, must be scheduled within ten (10) days after the TRO was granted.
A defendant falsely accused of domestic violence must appear before the presiding New Jersey Superior Court judge to contest the allegations. If the defendant does not appear, however, the applicable New Jersey Family Court can issue a "final" restraining order against the defendant (which will last a lifetime), or the Court can issue a bench warrant for the defendant's arrest if circumstances warrant as such. Appearing in Court at the FRO hearing and fighting the false domestic violence allegations is arguably the only realistic manner to have the TRO dismissed.
Based on which grounds can I fight a TRO in New Jersey?
In addition to disputing the false allegations and claims made by the plaintiff outright, a defendant can introduce relevant testimony, evidence, and witnesses that can "impeach" the plaintiff's version of events, and therefore, the plaintiff's credibility. Relevant sources of evidence that the defendant can use against the plaintiff to refute the plaintiff's false claims include, but are not limited to: photographs, phone records, phone messages, text messages, social media postings, emails, statements made by the plaintiff to third parties, evidence that the plaintiff filed previous false charges, relevant "crimen falsi" evidence against the plaintiff (convictions against the plaintiff for crimes of dishonesty; such as theft and related offenses); and so forth.
Although the burden of proof is lower in a FRO hearing than in New Jersey criminal court, if the defendant's case is "stronger" than that of the plaintiff's, the defendant should prevail. Nonetheless, defendants must understand that plaintiffs do not have to prove "as much" to be granted a FRO, and allegations alone, even when outright lies, can be sufficient for the Court to issue a FRO against the defendant. Because of this, the potential for a FRO to be issued against the defendant, with its attendant potentially-severe consequences, cannot be taken lightly. Defendants must therefore do everything within their power to have the TRO dismissed; this includes having proper representation.
Can I fight a TRO based on the nature of the relationship between the plaintiff and I?
At times, and because allegations alone can allow the Court to grant a plaintiff a FRO, plaintiffs may be able to fabricate a story, allegations, claims, and so forth, that hold up to cross-examination at trial. In light of this potential concern, another basis which a defendant falsely accused of domestic violence can utilize in his or her defense is whether the plaintiff's alleged charges "qualify" as "domestic violence under the New Jersey Prevention of Domestic Violence Act.
The Act specifically defines who will be considered a victim of domestic violence. If the plaintiff's relationship to the defendant does not meet the Act's definition, the defendant can argue that the TRO should be dismissed and the FRO should be denied. In New Jersey, any person who meets any of the three following categories can be considered a victim of domestic violence:
Spousal or Household Member Domestic Violence
A person who is 18 years of age or older (or an emancipated minor) and who is the alleged victim of domestic violence by a spouse, former spouse, or a person who is a current or former household member.
Child in Common Domestic Violence
A person, regardless of age, who is the alleged victim of domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant.
Dating Relationship Domestic Violence
A person who is the alleged victim of domestic violence by a person with whom the victim has had a dating relationship.
Some relationships are obviously easier for the plaintiff to prove than others; spousal relationships, for example, such as alleged abuse committed by either the husband or wife against the other; parties who have a child together; and so forth.
Other relationships may be more difficult for plaintiffs to prove. For example, the defendant, through proper testimony and evidence introduced at the FRO hearing, may be able to cast doubt on whether the plaintiff and defendant were in fact dating; the defendant may also be able to cast doubt on whether the plaintiff and defendant were in fact household members under the statute.
Although the plaintiff must "prove" that the defendant committed the alleged acts of domestic violence to be granted a FRO, it may be difficult at times to refute false allegations made by the alleged victim; even after all necessary steps are taken to prepare the best possible defense .All means of "attacking" the plaintiff's false claims must of course be made, but ultimately, if the defendant can show that the relationship between the plaintiff and defendant (or lack thereof) do not meet the requirements outlined by the New Jersey Domestic Violence Act, the defendant can prevail at a FRO hearing.
Lastly, a defendant can also claim self defense as a bass to defeat a FRO if he or she had to use “reasonable force” to defend against the plaintiff if the plaintiff claims he or she attacked the defendant.
New Jersey Attorney to Fight a Domestic Violence Restraining Order | New Jersey Attorney to Fight a FRO
A New Jersey domestic violence restraining order, once issued against a defendant, will last a lifetime. When falsely accused of domestic violence allegations in New Jersey, having an attorney in your corner who s experienced with how to contest a restraining order, whether a TRO or a FRO, can mean the difference between victory or defeat in the courtroom.
The stakes are always high for a defendant when accused of domestic violence allegations, and this is even more the case when the allegations are false because a falsely-accused defendant is not deserving of such potentially-severe consequences nor was this what New Jersey Family Law was intended to address. In addition, a plaintiff who makes false domestic violence allegations to obtain a TRO or FRO does a disservice to legitimate victims of domestic abuse.
Whether facing false domestic violence allegations in Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Mercer, Ocean, or Salem County, contact attorney Joseph D. Lento to learn how he can help.