Restraining orders are a tool for judges and courts to exercise control over a potentially dangerous situation between certain people. When a restraining order is granted by a judge, it will include several conditions that the defendant must follow to be in compliance. These conditions will remain until they are changed or canceled by a judge. If anyone wants an amendment to a restraining order, they must seek permission from the presiding judge. If you have questions about changing the conditions of a restraining order, then it is important to speak to an experienced criminal defense attorney immediately.
An Overview of Restraining Orders
Restraining orders are court orders that are meant to protect certain individuals from potential harm from another person. Restraining orders are civil actions that are filed and processed separately from any criminal case. There does not need to be an ongoing criminal case or even a prior complaint to the police to seek a restraining order. A restraining order can limit an individual from having contact with someone or being around them in any way. It can also limit someone from going to certain places and communicating with certain people that are close to the complainant.
Not all people can seek a restraining order; they must first be eligible. To be eligible to seek a restraining order, the people involved must be in a qualified domestic relationship. When there are allegations of domestic violence or sexual assault, then a restraining order can be sought. The only type of situation that does not require the people to be in an intimate relationship in some way is through an allegation of stalking.
If the petitioner of a restraining order claims that he or she has been sexually assaulted by the defendant, then he or she can be granted a restraining order due to the Sexual Assault Survivors Protection Act (SASPA).
SASPA allows petitioners to get a court protective order without the need to make a criminal complaint and seeking criminal charges against their alleged assailant. Before SASPA, the only ways an alleged sexual assault victim could be protected by a court would be if there was a qualified domestic relationship or if there were pending criminal charges. When someone is facing criminal charges related to an assault of any kind, the presiding judge can set bond conditions that prohibit contact with the alleged victim. SASPA gave people an additional option outside of the criminal courts to have protective orders without a criminal case. Restraining orders have become sort of a middle ground for certain situations.
If someone wants to petition for a restraining order against another person, then they must file their petition with the local county court. Whatever county you live in is where you would file for a restraining order. The court will expect you to file a written petition that describes, in detail, what happened, where it happened, and who else was there. The court will also inquire if there have been any other prior assaults or threatening behavior of any kind.
An eligible individual can petition for a restraining order if any of the following acts are alleged to have taken place:
- Sexual assault
- False imprisonment
A judge will have to be convinced that the defendant committed the alleged assaultive behavior towards the petitioner and that the petitioner needs to be protected by the court. If the judge believes domestic violence, sexual assault, or stalking took place, then the judge can authorize and enforce a restraining order against the defendant.
Who Can Request a Restraining Order in New Jersey?
Under New Jersey law, if someone is alleging domestic violence, then they have the ability to get a restraining order. The first restraining order that can be granted is known as a temporary restraining order. This order is often granted by judges without much in-depth consideration because of its temporary nature and the need to protect the petitioner from potential harm. In New Jersey, the law is specific on who can be considered a victim of domestic violence. To qualify as a victim of domestic violence in New Jersey, the person must be:
- At least 18 years of age (or an emancipated minor) who has been assaulted by a spouse, ex-spouse, or any current or former roommates
- An individual who has been assaulted by someone with who they have a child in common or expect to soon have a child in common
- An individual who has been assaulted by someone they date
What Types of Restraining Orders are Available?
In New Jersey, there are two kinds of restraining orders: Temporary Restraining Orders (TROs) or Final Restraining Orders (FROs).
A Temporary Restraining Order (TRO) is the first step in the restraining order process. It is an immediate restraining order that typically only lasts for about ten days. A petitioner must file their petition at the local superior court or a police station. The petitioner will then be taken in front of a judge who will hear only the petitioner's side of the story. This is known as an ex parte hearing. In most situations, ex parte hearings are not allowed as they are considered unfair because the judge will only be speaking to one side of a case. The defendant is not allowed to appear, nor is any attorney. TRO hearings are all conducted ex parte in an effort to protect those who want to petition for an order. If the judge grants the TRO, then the defendant is located by the police and is served with the TRO, notifying him or her that those conditions are in place.
A Final Restraining Order (FRO) is the final step in the restraining order process. FRO hearings typically take place within ten days of a TRO being granted by a judge. FRO hearings are full hearings that allow both sides to be present and present their cases according to court rules and the rules of evidence. FRO hearings are similar to a civil bench trial where the judge will both rule on legal objections and be the finder of fact in the case. After conducting a hearing, the judge will grant a FRO if the judge is convinced in the petitioner's allegations and further convinced that the petitioner needs to be further protected from the court to prevent future harm. A FRO will contain all of the restrictions the court feels are necessary relating to the defendant's conduct. Once a FRO is granted, it is permanent and won't be canceled unless a judge agrees to do so. They do not simply cancel on their own.
What Happens After a Restraining Order is Granted?
Once a judge grants a petitioner's request for a FRO, then that order is both immediate and permanent. These orders will only be changed through a proper request that is discussed in the next section. You will most likely find that a restraining order will include language prohibiting the defendant from:
- Having or attempting any contact with the petitioner; and
- Committing or attempting to commit any sexual acts or other acts against the petitioner.
The restraining order will also likely contain language that prohibits the defendant from:
- Going to certain places that the petitioner goes, such as their home, school, or workplace. A judge can also limit contact with people close to the petitioner, such as family members or roommates.
- Attempting to contact the petitioner through a third party. This includes any attempted form of contact, including in-person contact, written contact, or attempted contact over the telephone or electronic means. Any attempted contact of this sort would violate a restraining order.
- Making threats against the petitioner or stalking him or her.
- Harassment of any kind, including cyber harassment that takes place over the internet. Any sort of harassment or unwanted attention brought to the petitioner by the defendant through the use of social media or other methods online.
These orders will continue unless a judge changes or cancels them. If you want the conditions of a restraining order changed, regardless if you are the petitioner or defendant, you must get the court to approve.
How Can a Restraining Order Be Changed?
Restraining orders will only be changed upon court order. Restraining orders and their provisions are permanent and do not expire. An appeal or motion for reconsideration are the first options in changing the terms of a restraining order. When someone appeals a judge's decision granting a restraining order, then they are alleging that some legal mistake took place, or the facts of the case simply do not meet the burden of proof necessary to be granted. An appellate court will make the final decision on any restraining order appeals.
If someone wants to file a motion for reconsideration, then they are typically asking the judge to reconsider their decision for a list of stated reasons. A petitioner and defendant can both ask the judge for reconsideration of their decision. For a judge to change their minds about their decision, the evidence presented must convince them that the restraining order is not necessary to protect the petitioner.
Some may believe that if the couple reconciles, that the restraining order just goes away. Well, it doesn't because restraining orders don't operate that way. A couple's reconciliation could actually result in a restraining order violation in certain circumstances. A petitioner can also ask the court to change or even add conditions due to circumstances involving the defendant or any children in common.
If the circumstances have changed to the point where a restraining order is no longer necessary, then this can be brought to the judge's attention when determining whether to keep a restraining order in place. You will not get multiple attempts to have the judge listen to the same evidence, so it is important that the circumstances have changed to the point where the judge will be comfortable making changes. Often, having an attorney can help you in this situation.
How An Attorney Can Help Change a Restraining Order
If a restraining order is already in place, then it is important to select the best approach if you are seeking any changes because courts are often inclined to simply keep existing orders in place. An attorney can help you zero in on what facts and circumstances will help convince the judge that they should change their previous order regarding the situation. You will need to show the judge that the circumstances are no longer dangerous and that the court does not need to protect the petitioner anymore from the defendant. If there are children in common and custody has been agreed to in a family court, then this can lead to the judge changing any custody orders granted by a restraining order.
If you are a petitioner that no longer wants protection from the court, then an attorney can help you show the judge that you feel safe and are no longer in need of a restraining order. If you are a defendant, then an attorney can help you convince the judge that the situation will not be dangerous, and it is in everyone's best interest to change restraining order provisions. If you have legal questions about restraining orders in New Jersey, then call attorney Joseph D. Lento and the Lento Law Firm so we can help!
Contact the Lento Law Firm Today
If you are looking to update or change the terms of a restraining order, then it is important that you speak to an experienced attorney right away. It is important to understand the restraining order process to properly present any argument to change any restraining order provisions. To learn why attorney Joseph D. Lento and the Lento Law Firm are the right decision to help you with a restraining order, call us at 888-535-3686 or contact us online.