The end of a relationship can be messy and upsetting, especially if there are disputes about children or property. In the worst cases, tempers may flare and lead to threats and violence.
New Jersey law provides a mechanism for victims of domestic violence to protect themselves and the rest of their household by obtaining a court order forbidding the perpetrator from entering or approaching the victim's home or workplace. This type of order is known as a restraining order for criminal trespass. A person who has been served with the order is prohibited from entering or even crossing the boundary line of the property. If the property is a house or apartment, this would include entering the yard, parking lot, or driveway. Sitting in a car on the street just outside the restricted area could also be considered trespass.
The order is handed down by a judge after a hearing. A person who violates the order is deemed to be in contempt of court. Violation of the order constitutes a felony and can result in a criminal record, a state prison term of up to 18 months, and a fine of up to $10,000.
A restraining order for criminal trespass is available regardless of gender or marital status if the person requesting the order is in a qualifying domestic relationship:
- A current or former marriage
- A dating relationship
- A shared household
- Sharing one or more children
This includes people who do not currently live together but have been in a romantic relationship and anyone who has a child or is expecting a child with someone else. The children may be included in the restraining order.
The process of obtaining a restraining order sometimes begins with a 911 call to the police from a household where one partner has physically harmed (or threatened to harm) a member of the household. When law enforcement officers arrive on the scene, they may arrest the perpetrator and suggest that the victim file a complaint for an emergency temporary restraining order.
A police referral is not required in order to request a TRO. Neither is an arrest or conviction of the perpetrator, but the victim must be able to prove that a predicate act of violence has occurred. Predicate acts of violence encompass a wide range of behaviors, including but not limited to threats, stalking or cyberstalking, harassment, whether it be in person, online, or via text, and kidnapping, burglary, and robbery.
If circumstances make it impossible for the victim to visit the court, a judge can still issue a TRO based upon the victim's sworn complaint or the testimony of a legal representative, such as someone from the Lento Law Firm.
You can find the forms to request a protective order online, in the court clerk's office of any county courthouse, or at a police station. You need to file it in the Family Part of the Chancery Division at the courthouse located in the county where you live, the county where the abuser lives, or the county where the violence occurred.
When you go to court to file the request, you will need to bring a driver's license or some other form of photo ID with you. You will also need to bring information about the abuser, including the abuser's work and residence address (or the place where the abuser is currently staying), automobile license number, if possible, and any history of gun ownership or drug use.
Read the directions for filling out the form carefully. The person requesting the restraining order is the “plaintiff,” and the person who presents a threat is the “defendant.” Don't hesitate to ask the clerk questions if you don't understand something. Be aware that clerks of the court can answer questions about how to fill out the forms, but they are not allowed to provide legal advice.
The form will ask you to write down a detailed description of all the abuser's behavior that has prompted you to apply for a protective order, including any verbal threats. Do not sign the complaint until a clerk has reviewed it for completeness.
Under the New Jersey Address Confidentiality Program, a victim who has moved to a new address and would like to keep it concealed from the abuser may apply for a confidential designated address, which is not disclosed to anyone except employees of the Department of Children and Families' Division on Women. There is no fee to file for a restraining order or to have it served.
Because emergency TROs do not require that the defendant be served or notified before the order is issued, the court will schedule a full hearing to take place soon afterward, where the judge can decide whether to make the order final. This gives the defendant time to be served with a notice of hearing by the police or sheriff, and it gives both parties time to assemble evidence and prepare for the hearing.
In some cases, the judge may decide that not enough evidence has been presented to issue a TRO. Either way, the judge will set a date for a full hearing so that each side can present their case in court. A police officer or sheriff will serve the alleged abuser with notice of the hearing.
On the date of the hearing, both parties must appear in court. To ensure the safety of all, sheriffs are always present during the hearings and accompany the parties out of the courtroom after the hearing.
Final Restraining Orders
If the defendant fails to appear or send a legal representative, the judge will most likely grant the restraining order. If the plaintiff does not appear, the judge may reschedule the hearing or may take it off the calendar, which means that the plaintiff will have to start the application process over again.
After hearing from both parties, the judge will decide whether to grant a final restraining order. If it is granted, the plaintiff should make several copies. One copy should be kept with them at all times. The others should be distributed to any places where the defendant might likely show up: at the plaintiff's workplace, home, and in the car. If there are school-age children in the relationship, a copy should be given to the school office.
If the defendant did not show up for the hearing and has not yet been served with the order, then as soon as this has been done and the person serving has signed the proof of service, make copies of it, and give one to everyone who has already been given a copy of the order.
Protective orders generally last for one year. At the end of that year, the protected party may apply to the court for an extension. In some cases, they can be made permanent.
Keep in mind that protective orders are not self-enforcing–the protected person must notify law enforcement if the other person violates it. If the protected person voluntarily allows the other person to spend time with them, and the domestic violence later recurs, it will be extremely difficult to prove that the order was violated.
If you need advice about obtaining or contesting a New Jersey protective order or with any other family law matter, contact the Lento Law Firm.