Restraining orders are used as a means to protect victims of domestic violence and their loved ones. Yet, court-ordered separation can often wreak havoc on family connections, including young children.
Whether children are subjected to abuse surrounding an instance of domestic violence or become part of a custody battle in court, it's essential to understand what restraining orders are, who may seek them, and how they can affect child custody. Comprehending the implications now will only improve your chances of rectifying the situation.
What Are Restraining Orders?
In New Jersey, instances of domestic violence are addressed with two types of restraining orders. Temporary restraining orders (TROs) are sought through a domestic violence complaint in a local county courthouse or police department, which compels the defendant to stay away from and refrain from contacting the plaintiff. After ten days, the TRO will culminate in a final decision from the Family Division of the New Jersey Superior Court. Final restraining orders (FROs) end with subsequent sanctions levied, preventing the defendant from coming within a certain distance of the plaintiff and inhibiting future communication.
Those seeking restraining order must show or have substantiated by contact with law enforcement that a predicate act occurred. While several of the following may happen during an instance of domestic violence, only one of the acts listed in the Prevention of Domestic Violence Act (PDVA) must demonstrate the need for a restraining order.
- Criminal coercion, mischief, restraint, sexual contact, and trespass
- False imprisonment
- Sexual assault
- Terroristic threats
If one of the aforementioned predicate actions can be proven by a preponderance of the evidence, the restraining order will likely become permanent, especially if the judge reveals a pattern of abuse. While a considerable breadth of parties may seek a restraining order against someone else, there are limitations. State law provides criteria to which courts must adhere when deciding the validity of restraining orders.
The PDVA explains that “protected persons” under the act are typically married, living together, or in a dating relationship. N.J.S.A. § 2C:25 states the following parties may file a restraining order:
- Persons at least 18 years of age
- Emancipated minors
- Those subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member
If the plaintiff does not fall into one of those categories, a TRO or FRO cannot be granted.
Although instances of domestic violence may involve children under the age of 18, they will not be handled through the PDVA and will fall under child abuse. New Jersey's Division of Child Protection and Permanency (DCPP) within the Department of Children and Families (DCF) investigates reports of child abuse.
DCF defines child abuse as the following categories of harmful action against anyone under the age of 18 by that child's parent or caregiver:
- Risk or threats of harm
Nevertheless, federal law also oversees child abuse. For example, the Child Abuse Prevention and Treatment Act (CAPTA) states that child abuse and neglect can be defined as any “recent” actions or failure to act that results in emotional, physical, or sexual abuse or that threatens to cause such. N.J.S.A § 9:6-8.14 also mandates all New Jersey citizens to report child abuse, and failure constitutes a misdemeanor—or disorderly persons—offense, punishable by up to $1,000 in fines and up to six months in jail.
However, there may be adult children still living in the home. If they are at least 18 years old or under the age of 18 but married, they fulfill the requirements of the PDVA and may thus seek a restraining order.
How Do Restraining Orders Affect Child Custody?
In some cases, a TRO will prevent the defendant from seeing their kids until the final hearing is resolved. During the FRO hearing, the New Jersey court system will examine several factors to determine whether the defendant should have custody of the child. These circumstances include:
- Immediate dangers to persons or property
- Financial circumstances of both parties
- Interests of children
- Previous domestic violence between the parties
If the court finds that living with the defendant is not in the child's best interest, it will remove the defendant's custody rights and award sole custody to the plaintiff. While defendants may be granted visitation rights, it is up to the court's deference to give them, limit visitation rights to supervised visits in some cases, or institute no-contact directives.
Can You Regain Child Custody After a Restraining Order Expires?
If a defendant loses custody of their children due to a restraining order, it is possible to regain guardianship later. However, New Jersey FROs typically do not have an expiration date. FROs remain in place until one of two things happens.
Plaintiffs may seek to withdraw a FRO by filing a Dissolution of Restraining Order to petition the court to enter into a Certification to Dismiss. Defendants may also request a FRO dismissal via a Notice of Motion accompanied by supporting documentation outlining “good cause shown.” The court cannot hold a hearing for dismissal unless the plaintiff is given notice and an opportunity to be heard.
The court will consider a myriad of factors as part of their determination, including, but not limited to:
- Age and health of the defendant
- Completion of court-ordered counseling
- Drug or alcohol abuse
- Previous domestic violence allegations
- Plaintiff consent
- Nature of the relationship between the parties
How Can Attorney Joseph D. Lento Help You?
Under New Jersey law, violating the TRO or FRO is a criminal offense that could end in serious jail time. Furthermore, any restraining order violation will inhibit your chances of obtaining child custody in the future. Your best chance to get custody back through modifying a restraining order is with an attorney skilled in litigating restraining orders.
Joseph D. Lento and his team at the Lento Law Firm pride themselves on teaming empathy for distressed families with proven experience in the courtroom to give you the best chance for redress. To speak with restraining order experts with a proven track record of fighting for their clients regardless of party status in a TRO or FRO, call 888-535-3686 today, or visit the confidential online consultation form.