What is a New Jersey domestic violence restraining order?
- “[P]urposefully or knowingly disobeys a judicial order or hinders, obstructs or impedes the effectuation of a judicial order or the exercise of jurisdiction over any person, thing or controversy by a Court, administrative body or investigative entity.”
If a person is charged with Criminal Contempt as a result of violating a domestic violence restraining order in New Jersey, a sentence of up to 18 months in jail and a fine of up to $25,000 is possible. A second conviction for Criminal Contempt of a TRO or FRO can result in a sentence of a minimum of 30 days in jail.
Restraining orders in New Jersey can be an effective tool to combat domestic violence and spousal abuse. Because strong emotions are involved in these kinds of matters, it is unfortunate however, that people on occasion abuse this tool in an effort to "get back" at a former loved one, whether an ex-husband, ex-wife, ex-boyfriend, ex-girlfriend, and so forth. Whether a plaintiff or defendant in a TRO or FRO, and whether alleged abuse is real or not, the necessary steps need to be taken to achieve the relief sought in court.
The Temporary Restraining Order (TRO)
The first step towards having a final restraining order issued is for the domestic violence victim to seek a temporary restraining order against the alleged domestic violence offender. A TRO will be issued if a New Jersey judge, in the county where the alleged domestic violence took place, has cause to believe that the TRO plaintiff, the party seeking the temporary restraining order, has been the victim of domestic violence caused by the TRO defendant, the party accused. A TRO is temporary as its name indicates. The judge will issue a TRO in an effort to provide temporary protection from alleged domestic violence to the party seeking the TRO. Depending on the circumstances of the domestic violence case, the plaintiff's allegations can be sufficient for a judge to have a sufficient basis to issue the TRO.
The Final Restraining Order (FRO)
After a TRO is issued, a FRO hearing will be scheduled within ten (10) days in the Family Division of the Superior Court of New Jersey. The county where the alleged domestic violence took place will determine which New Jersey Superior Court will preside over the final restraining order. If the plaintiff alleged that the domestic violence took place in Camden County for example, the FRO hearing will take place in the Camden County Superior Court; if the alleged domestic violence took place in Gloucester County, the hearing will take place in the Gloucester County Superior Court; and so forth.
A FRO hearing is not a criminal proceeding, and for that reason, the standard of proof required is that domestic violence must be proven by a "preponderance of the evidence;" not the more rigorous standard of proof "beyond a reasonable doubt." At a hearing for a final restraining order, the plaintiff must prove that it is "more likely than not' that domestic violence was committed by the defendant. What this for a plaintiff and a defendant at a FRO hearing is that: 1) it is arguably easier for a plaintiff to meet their burden, and therefore, obtain a FRO against the defendant; and 2) it is harder for a defendant to defend against a FRO because of the lower standard of proof required.
Who goes first at the FRO hearing? Who goes last?
Understanding the battlefield is critical to achieving success at a FRO hearing, and the sequence of events at the hearing is of particular importance. Although individual judges at the various New Jersey Superior Courts have specific courtroom procedures, all FRO judges follow a general order as to how FRO cases proceed:
- The FRO plaintiff presents their case - The alleged victim will have the opportunity to testify about the incident(s) that gave cause for the TRO to be issued. The plaintiff can also call witnesses to support his or her claims and present evidence such as hospital records, photographs, emails, text or voicemail messages, and bills that demonstrate damages or financial losses.
- Cross-examination by the FRO Defendant - The FRO defendant will then have the opportunity to cross-examine the alleged victim and all witnesses that testified.
- The FRO defendant presents their case - This is the alleged offender's opportunity to testify about their version of the events in question, call their own witnesses, and present their own evidence.
- Cross-examination by the FRO Plaintiff - The alleged victim then gets the opportunity to cross-examine the FRO defendant and their witnesses.
- Redirect by the FRO Plaintiff - The alleged victim can then offer "rebuttal" testimony and evidence to anything that the FRO defendant may have presented. "Rebuttal" testimony and evidence is intended to."refute" testimony and evidence presented by the FRO defendant. Depending on the particular circumstances of the FRO case, rebuttal evidence may include evidence not initially presented in the FRO plaintiff's case, or it may include a new witness who contradicts the FRO defendant's witnesses. As with all testimony and evidence, the judge will decide what rebuttal evidence will and will not be allowed. This is especially true if an objection is made to any proferred testimony or evidence.
- Superior Court Judge makes a ruling - The judge will make a decision, which will be based on "a preponderance of the evidence" as noted. This means that a final FRO order can be issued against the defendant that provides all of the relief sought by the plaintiff even if the defendant's guilt was not proven "beyond a reasonable doubt," the burden of proof required in New Jersey criminal court. Parties in a FRO action must understand the "preponderance of the evidence" burden of proof because that what is required in order to have the judge find in one's favor. A "preponderance of the evidence" means that a party has shown that its version of facts, causes, damages, or fault is more likely than not the correct version. Throughout the proceeding for the final protection order, the judge may ask various questions to both parties and witnesses. A judge's potential questioning does not, however, negate the requirement that the plaintiff meet their burden to have a FRO granted, nor does it negate the requirement that the defendant properly defend against the allegations to have the matter dismissed. New Jersey domestic violence cases often present difficult issues of proof for the judge because there are often no witnesses to the alleged abuse. Such cases often come down to a matter of “he said, she said," with the judge ultimately finding in favor of the party that, in light of all testimony and evidence presented, is more credible. At the end of the FRO hearing, the judge will briefly explain to the parties the basis for the decision that was made.
How does a judge decide whether or not to grant a FRO?
New Jersey Superior Court judge will consider the following three (3) factors in deciding whether or not to grant a final restraining order: 1) whether an act of domestic violence occurred; (2) whether a prior history of domestic violence exists between the plaintiff and defendant; and (3) whether the alleged victim is in reasonable fear for their safety and a final restraining order is necessary to ensure their safety.The judge must first determine if a predicate act of domestic violence took place. To do so, the judge will consider the crimes included in New Jersey's domestic violence statute.
What crimes are covered under New Jersey's domestic violence statute?
A victim of domestic violence can seek a restraining order (temporary or final) based on specified criminal offenses that are covered under New Jersey's domestic violence statute, which is known as the “Prevention of Domestic Violence act of 1991,” P.L. 1991, c.261 (C.2C:25-17 et al.). One or more of the following criminal offenses will be considered an act of domestic violence in New Jersey; obviously, and because of their nature, some acts of domestic violence will obviously be alleged as a basis more often than others:
- Homicide - N.J.S.A. 2C:11-1 et seq.
- Assault - N.J.S.A. 2C:12-1
- Terroristic Threats - N.J.S.A. 2C:12-3
- Stalking - N.J.S.A. 2C:12-10
- Kidnapping - N.J.S.A. 2C:13-1
- Criminal Restraint - N.J.S.A. 2C:13-2
- False Imprisonment - N.J.S.A. 2C:13-3
- Criminal Coercion - N.J.S.A. 2C:13-5
- Sexual Assault - N.J.S.A. 2C:14-2
- Criminal Sexual Contact - N.J.S.A. 2C:14-3
- Lewdness - N.J.S.A. 2C:14-4
- Robbery - N.J.S.A. 2C:15-1
- Criminal Mischief - N.J.S.A. 2C:17-3
- Burglary - N.J.S.A. 2C:18-2
- Criminal Trespass - N.J.S.A. 2C:18-3
- Harassment - N.J.S.A. 2C:33-4
If the judge determines that a predicate act of domestic violence did not occur, the TRO will be dismissed. If a predicate act of domestic violence did occur under New Jersey's domestic violence statute, the judge will continue his analysis of the case.
What happens if the judge determines that an act of domestic violence took place at the FRO hearing?If the judge determines that a predicate act of domestic violence was committed by the defendant, the judge will then determine whether a history of domestic violence exists between the plaintiff and defendant. A previous history of domestic violence can include prior harassment, threats, and physical violence. The next, and ultimate question that the judge will decide is whether the plaintiff is in reasonable fear for their safety and if a FRO is necessary to protect the plaintiff's safety.
Once issued, can a FRO be dismissed or vacated?One of the most significant considerations regarding a New Jersey FRO is that it is permanent once issued against a defendant. In other words, the final restraining order will last a lifetime in New Jersey. The FRO will remain in effect unless the plaintiff petitions the applicable New Jersey Superior Court to have the order vacated. The judge will hold a hearing on the matter and will question the plaintiff as to why he or she wants to have the FRO vacated against the defendant. Prior to the hearing, the plaintiff will often be required to speak with a court domestic violence counselor to determine whether the plaintiff is making the request to have the final restraining order vacated of their own free will, or if it is the result or coercion by the defendant for example.
A New Jersey Restraining Order Attorney Can Help
For a FRO plaintiff who is subject to potential or actual harm at the hands of an abuser, a final order is needed to help ensure the plaintiff's safety. The plaintiff cannot risk obtaining a temporary restraining order order only to have it dismissed because they failed to meet their burden at the hearing for the final restraining order.
On the other end of the battlefield is the TRO defendant, and the issuance of a restraining order against a person, temporary or final, can have serious negative consequences, both short and long-term. A temporary restraining order can lead to a final restraining order, and a final restraining order can lead to further consequences yet. The potential of a restraining order resulting in criminal charges is real.
Moreover, a restraining order in and of itself can jeopardize a person's employment, school, most basic rights, and the like. The stakes can be higher yet if a retraining order defendant has to maintain a professional license or professional certification for work; as is the case with doctors, nurses, teachers, and so forth People who have to carry firearms for employment purposes also have to be extremely mindful as to the implications of having a final restraining order issued against them; police officers, probation and parole officers, correctional officers, and other law enforcement agents, for example.
Ultimately, regardless of one's place in life, or the reasons why parties find themselves at hearing for a domestic violence restraining order in New Jersey, it is critical to take the proper steps to respond to and address a TRO and FRO, and a New Jersey restraining order attorney can help.
If seeking or defending against a TRO or FRO in New Jersey, contact attorney Joseph D. Lento today to learn how he can help.