If you are facing the possibility of a Restraining order (RO) in New Jersey, then it is important to understand how a restraining order can affect you and your everyday life. Restraining orders have broad power, and judges can even limit if you are allowed to see your kids. Restraining orders are generally not criminal in nature, but they can quickly turn into a criminal offense if one isn't careful. Restraining orders also follow a specific timeline in the court system. It is important to be aware of your position on the timeline of restraining order proceedings to understand what your legal options are. If you have legal questions about restraining orders, then it is important that you speak to an experienced criminal defense attorney as soon as possible.
Restraining Orders Explained
A restraining order is a court order that is granted by a judge. A restraining order can limit or ‘restrain' someone from having any contact or being near someone else. A judge will grant a restraining order when allegations of violence or other harm are made by a specific individual. Restraining orders can only be sought by those who are in qualified domestic relationships. In most of these cases, those involved are a former couple or are family members. If a judge grants a restraining order against someone, then that person will be limited in what kind of contact they can have with those named in the order. A restraining order can include orders on child custody if there are children in common with the petitioner.
If someone wants to petition the court for a restraining order, then they must do so by filing a petition with their local county court. This petition must be filed in the Superior Court as restraining orders can only be granted by Superior Court county judges. In the petition for a restraining order, the petitioner is required to give a detailed explanation about what happened, where it happened, and who was involved. The judge will also want to know if there are any prior accusations of violence involving the defendant. A judge can grant a restraining order if one or more of the following acts are alleged:
- Sexual assault,
- Kidnapping, or
- False imprisonment.
For a restraining order to be granted, a judge will need to exam if the facts and circumstances are sufficient to find domestic violence is present under the categories of domestic violence or sexual assault. The judge will also need to determine that the restraining order is necessary to prevent any future similar acts to keep the petitioner safe.
What Types of Restraining Orders Exist?
In New Jersey, there are two types of restraining orders: Temporary Restraining Orders (TROs) or Final Restraining Orders (FROs).
A Temporary Restraining Order (TRO) is an interim restraining order that a judge can authorize if an allegation of domestic or sexual violence is made. This allegation must be made to the appropriate superior court or a local police station. Anyone requesting a TRO must appear in court for a judge to hear their petition. If the judge grants the TRO, then the TRO is served on the defendant by the local police or county sheriff. TRO hearings are held ex parte, outside of the presence of the defendant or an attorney. In TRO hearings, the judge only hears one side of the story.
A Final Restraining Order (FRO) is a restraining order that is only granted after a full hearing. In a full hearing, both sides get a chance to present their cases. If the judge decides that a restraining order is warranted after a full hearing, then the judge will grant the order and list specific conditions that must be followed. A FRO is permanent and cannot be canceled unless a judge decides to do so. If a judge decides to approve an initial TRO after an ex parte hearing, then a FRO hearing will be scheduled within ten days. The TRO will continue until a FRO is decided.
What Type of Action is a Restraining Order?
Restraining orders are not criminal in nature initially. They are civil proceedings and must meet a preponderance of evidence standard to be granted. In criminal cases, the burden of proof for conviction is proof beyond a reasonable doubt. This is a much higher standard than the preponderance standard in civil cases.
It is important to know that a restraining order can become a criminal matter if there is an alleged violation. If a judge grants a restraining order, then all the provisions of that order will be uploaded to police databases. This is meant to help the police in case there is a call for help involving the petitioner and defendant.
What Happens If You Violate a Restraining Order?
Even though a restraining order is a civil order, a violation of a restraining order is a criminal matter and will result in a criminal contempt charge. Alleged restraining order violations also result in immediate arrest in New Jersey. There are different types of punishment for different types of restraining order violations, including:
- First violation: up to 180 days in jail and up to a $1,000 fine.
- Second violation: mandatory 30-days in jail.
If domestic violence is alleged in the violation of a restraining order, then the accused can be charged with a fourth-degree felony. A conviction can be punished with up to 18 months in state prison and a fine of up to $10,000. This charge would be in addition to any criminal charges that could arise from the alleged conduct. Put simply, violating a restraining order is a dangerous undertaking. It can affect your life in ways you likely have not thought about. If you have questions about specific orders in a restraining order to make sure that you don't end up with a violation, then make sure to speak to an experienced criminal defense attorney.
What is a Custody Order?
When a couple has children in common, then it is likely there are custody or parenting time conflicts if a restraining order is sought. If there are conflicts over custody in New Jersey, then decisions can be made by a Superior Court judge to divide custody and parenting time. Judges are required to follow the appropriate New Jersey law and examine specific factors to determine what is appropriate regarding custody. A judge's order can be altered or overridden if there are allegations of threats of violence or harm by the defendant.
What Law Applies to Custody If Violence is Alleged in New Jersey?
If domestic violence is alleged against a parent in New Jersey, then a judge can override existing custody orders. Before a judge takes measures like this, they must examine several factors. Some of the questions that a judge will ask include:
- Is domestic or sexual violence alleged against a parent?
- Is domestic or sexual violence alleged against a child?
- Is domestic or sexual violence alleged against both a parent and child?
- Is the threat of further violence imminent?
- Is there a previous history of violence?
- Were there any injuries?
- Are there any witnesses who can testify?
The answers to these questions are important to determine what a judge will order regarding custody in restraining order cases. A judge has the authority to alter, limit, or even rescind a child custody order based on the information learned during a restraining order hearing. Judges have additional options, such as ordering anger management or ordering restitution if necessary. If it is later determined that the allegations were false, then custody can be reexamined in light of the false allegation.
Can a Restraining Order Override Existing Child Custody Orders?
Yes, in certain cases. An initial order in the TRO can immediately revoke custody rights if the judge believes that you are either a threat to your kids or may try to escape the jurisdiction with your kids before the final restraining order hearing. If a FRO is ordered that has custody provisions, then those custody provisions can later be challenged and addressed by the court.
It is important to note that restraining orders can temporarily override custody orders for parents who don't want to go through the full legal process for custody or if a parent fears that their child is facing imminent endangerment. Some parents will use this as a sword against the other parent, so it is important to be aware of how this is accomplished.
If a Restraining Order Revokes My Custody Rights, Do I Still Have to Pay Child Support?
Yes. If you are under a previous child support order, then those requirements will continue even if a judge revokes your custody rights in a restraining order. If you would like to have your child support orders changed due to the revocation of custody, then you will have to petition the court to do so. This means that any orders of support, including paying a mortgage or rent, will continue even if you are ordered to leave the home.
Can a Restraining Order Grant Custody If There Isn't a Pre-Existing Custody Order?
Yes. If custody is not already addressed in a previous order, then a judge may address custody specifically in a restraining order. If child abuse is alleged by the petitioner, then a judge can immediately award custody to the petitioner pending a final custody order. It is important to understand how quickly this can happen, so calling an experienced attorney immediately if there are allegations of violence is highly recommended.
Can I Have a Custody or Restraining Order Cancelled?
Both custody and restraining orders are considered permanent unless the court decides to revisit them and make any changes. The court will only revisit custody or restraining order issues when an appeal or motion for reconsideration is filed. Judges will only make changes to existing orders if they are convinced that the change should be made in the best interests of those involved. Even if a couple reconciles, the court orders will remain until they are changed by a judge. If custody is changed by a judge in granting a restraining order, however, then that order is temporary. Custody that is changed by a restraining order can be revisited and negotiated later. The results of the later negotiation and/or custody hearing will determine final orders regarding custody.
If you want to appeal a custody or restraining order decision of a Superior Court judge, then you will have to file the case with the appropriate court of appeals. At the appellate court level, cases are reviewed individually and are largely based on a reading of the transcripts of any testimony taken to determine if the Superior Court judge followed New Jersey law correctly. An appeal needs to be filed within 45 days of the order.
If you want to file a motion for reconsideration, then that motion must be filed with the Superior Court within 20 days of the judge's decision. If you don't file your motion for reconsideration within this time, then you will likely lose the opportunity to change the judge's mind regarding the issue. If you miss the filing deadline, then any motions for reconsideration are required to be based on a new set of facts and circumstances for the judge to consider. If you have legal questions, then call us at The Lento Law Firm so we can help!
Contact the Lento Law Firm Today
If you have questions about custody or restraining orders, then it is important that you speak to an experienced attorney. It is important to understand the restraining order process to see how your custody rights can be affected and what legal options you may have. Attorney Joseph D. Lento and his team at the Lento Law Firm have helped countless clients throughout New Jersey overcome the various challenges associated with custody and restraining orders. To learn why the Lento Law Firm is the right decision to help you with your case, call us at 888-535-3686 or contact us online.