If you or someone you know is in danger, a restraining order can be a powerful protective tool. However, there is a lot to understand before you determine whether or not you'd like to pursue a restraining order. It doesn't have to be overwhelming. To help break it down, this article will provide a comprehensive overview of how restraining orders work in New Jersey.
What is a Restraining Order?
A restraining order is a type of court document issued to protect one individual from another. Usually, a restraining order is a response to a dangerous incident, such as stalking, domestic violence, assault, etc.
What are the Types of Restraining Orders?
There are two types of restraining orders available in New Jersey: a temporary restraining order (TRO) and a final restraining order (FRO).
Temporary Restraining Order
A TRO is intended to offer immediate protection. It is temporary and intended to last until your court date. If a judge finds you to be in immediate danger, they can issue what is called an "ex parte" Temporary Restraining Order. This means that the judge has made a decision based on only your testimony and without input from the individual that you are filing it against.
Final Restraining Order
After your hearing, if a judge determines that you remain in danger, you will be issued a final restraining order. Final restraining orders last forever in New Jersey. The only exception is if one party files a motion asking the judge to change the order. In that case, it can be modified or ended.
In addition to the different types of restraining orders, there are also different restraining orders intended for different circumstances:
- A domestic violence restraining order, for victims of domestic violence
- A sexual assault restraining order, for victims of sexual assault of any kind
- An extreme risk protective order, which prohibits individuals who pose a risk to themselves or others from owning firearms
Why Is a Restraining Order Issued?
As outlined above, different restraining orders are used in response to different behaviors. No matter what, though, they all have one common goal: to protect a victim's safety.
Domestic Violence Restraining Order
Domestic violence restraining orders are specifically used as a response to incidents of domestic violence. The State of New Jersey maintains a legal definition of domestic violence.
It states that, in order for an event to constitute domestic violence, it must occur between a spouse, former spouse, current or former household member, dating partners, or a person with whom the victim is having a child or has had a child with. The victim must also be over the age of 18 (or an emancipated minor).
Additionally, the state describes domestic violence as any of the following behaviors:
- Sexual Assault
- Terroristic Threats
- Sexual Contract
- Criminal Mischief
- Criminal Restraint
- Criminal Trespass
- False Imprisonment
- Sexual Assault
- Sexual Contract
- Terroristic Threats
Domestic violence is a dangerous and unfortunately, relatively common problem in the United States. In fact, it is estimated that as many as 10 million Americans are affected by domestic violence annually. Domestic violence puts victims at risk for a variety of ill outcomes including mortality. Restraining orders can prove an important protective tool.
Sexual Assault Restraining Order
A sexual assault restraining order is intended for victims of sexual assault (and all other types of non-consensual sexual contact). However, in order to qualify for this type of restraining order, the victim must not have a domestic relationship with the perpetrator. If they do, they would file for a domestic violence restraining order instead.
New Jersey defines sexual violence as any kind of sexual act that is perpetrated against someone's will. This involves attempted perpetration.
Extreme Risk Protective Order
An extreme risk protective order (ERPO) is requested when a person is thought to pose a danger to themselves or somebody else. An ERPO can be petitioned by a family member, household member, or an officer of law enforcement. The petitioner will have to prove that the individual that they are seeking the order against has a proven history of violence.
What Does a Restraining Order Do?
A restraining order works by limiting the movement and behavior of the targeted party. Depending on the circumstances, a restraining order may tell a party to refrain from further abuse, stay a certain distance away from the victim, or cease contact with the individual immediately.
If a restraining order is violated, the perpetrator can face consequences. A victim can call law enforcement any time that a restraining order is violated—law enforcement will then enforce the restraining order. It is recommended that those who are issued a restraining order keep a copy of the restraining order on them at all times.
What Happens When a Restraining Order is Filed Against Someone?
If a temporary restraining order is filed, the recipient of the restraining order must abide by all of its stipulations. This usually means they will be unable to contact the person who filed the restraining order unless they do so through a lawyer. If the two parties live together, it may mean that the recipient of the restraining order has to move out, at least until the court hearing when the permanent order may or may not be granted.
With domestic violence restraining orders, the defendant may be allowed to contact the plaintiff if it is a critical matter involving childcare. However, this can put the defendant at risk of violation of the restraining order, so it's best that the utmost discretion is used. The defendant may want to arrange a third-party contact, such as a lawyer, who can communicate on behalf of them.
It is very important that defendants are aware of what is considered "contact" under the restraining order. In most cases, even the most benign interaction on social media sites can be seen as contact and can leave the defendant in hot water.
In some cases, a New Jersey restraining order may include conditions surrounding child support or spousal support. The law may also make a decision around parenting time.
Are Restraining Orders Effective?
Some schools of thought state that restraining orders are ineffective at doing what they set out to do, i.e., protecting people from harm. Restraining order skeptics state that restraining orders are not adequate protection against extreme violence and only prevent more benign (though still significant) ongoing harassment such as threatening letters, stalking, etc.
However, there is research out there that shows that restraining orders can be helpful when used correctly. In fact, they are such an essential tool for vulnerable individuals that mental health professionals and protection officers alike often recommend them as a course of action.
One possible reason for the variation in restraining order effectiveness is the broad reasons for seeking out a restraining order in the first place. This means that a restraining order can be called into practice in the case of any threat of harm. The severity of the threat of danger varies, which means that you will have instances when a restraining order will be beneficial and cases when it won't be enough. Another reason is that what a “restraining order” means varies widely from place to place, making data hard to track and even harder to pin down.
The easiest way to determine whether or not a restraining order is working is by studying the violation rate. If a violation is sporadic or uncommon, then a restraining order is said to be effective. However, the fact that some violations may go unreported, combined with the fact that it is hard to quantify the severity of violations, makes it even harder to track the effectiveness of restraining orders.
Nonetheless, significant research shows that the use of restraining orders can not only be helpful but can sometimes be a lifeline, especially in the case of domestic violence victims.
How Do You Get a Restraining Order in New Jersey?
When you are seeking a restraining order in New Jersey there are several necessary steps to the process, a process that can be quite confusing and complex. Subsequently, if you're considering a restraining order, you should consult with an attorney to understand clearly what to expect. A lawyer will be able to help you navigate the filing and ease your burden during this stressful, and likely frightening, time.
- File the Proper Paperwork
The first step to obtaining a restraining order in New Jersey is to go to the courthouse and collect the necessary forms. You can either go to the courthouse of the county that you live in, the courthouse of the county that the perpetrator lives in, or the county where an incident has occurred. An attorney will be able to assist you in acquiring the correct paperwork and ensuring that it's clearly and correctly filled out.
If you are looking to file a restraining order outside of court hours, you can either file at the municipal court or you can call the police. The police will be able to connect you with a judge who works on-call. They then will be able to issue you a TRO.
When filing paperwork, ensure that you are filling each form out properly and to the best of your knowledge. If you're filing in person at the courthouse, the county clerk will be able to help answer questions that you have about the forms (though they won't be able to offer legal advice). Make sure that you bring an ID with you to the courthouse.
- Receive Temporary Restraining Order
If a judge reviews your paperwork and determines that you are in danger, they will grant you a Temporary Restraining Order. Again, this acts as a valid restraining order until the time of your court hearing, when a judge will determine whether a more permanent restraining order will be issued.
- Attend Court Hearing
Once you have received a TRO, you will be given a court date for your full hearing (usually within 10 days).
At a restraining order court hearing, both the plaintiff (i.e., the individual who requests the order) and the defendant (i.e., the individual for whom the order is requested against) will have a chance to present their side of the story. It is important to have a lawyer to help you prepare for this and present at this.
- Receive Final Restraining Order
If a judge grants the plaintiff a final restraining order, the plaintiff will be able to leave the courthouse with the order. It is critical that you review the order correctly to ensure that all of the information is incorrect. If it's not, you need to inform the court clerk immediately.
You should carry a copy of the order with you at all times. It might be a good idea to make copies and leave a copy in your car glove box, in your home, or with a trusted friend or relative.
What Happens at a Restraining Order Hearing?
As mentioned above, the purpose of a restraining order hearing is for the plaintiff and the defendant to share their sides of the story. Your attorney will be able to help you prepare for the FRO hearing and ensure that you have everything you need to adequately present your case.
All final restraining order hearings in New Jersey take place at the New Jersey Superior Court in the Family Part. A judge will also be the one who determines the outcome of a restraining order petition; there will never be a jury involved.
When it's your turn at the hearing, you will be given a chance to present the judge with the details of why you are seeking protection through a restraining order. You will also be allowed to share any relevant evidence and any witness statements that you have to put forward. It is in your best interest to make sure that your story matches the details you initially provided on your filed petition.
It is very important that the plaintiff's evidence be compelling and show proof of danger. You may be examined or have your evidence cross-examined by the defendant. To provide you with a permanent restraining order, the judge will be looking for clear evidence of a risk of danger. The level of “danger” is not well-defined and can include a variety of things, such as the utterance of threats, the possibility of physical harm, stalking, etc.
During the trial, the defendant (or the defendant's defense attorney) will also have the opportunity to present their own case to the judge. Just as the defendant is allowed to examine the plaintiff, as the plaintiff you or your attorney will also have the opportunity to ask the defendant questions about any of the materials they are presenting or the statements they are making. You don't need professional legal help to attend this trial, but having a trusted lawyer on your side can help—especially if you know that the defendant is bringing their own lawyer to the trial.
What Happens If a Final Restraining Order is Denied?
If a judge denies your petition for a final restraining order, your experienced attorney should be able to assist you. Since they have been helping from day one, they will be familiar with all of the details and able to act swiftly to protect you and your loved ones. Often, this takes the form of filing for an appeal. If another incident of domestic violence occurs after your restraining order petition has been denied, you can file for a restraining order again.
Remember, if you are looking for a restraining order against somebody with whom you do not share a domestic relationship, you may be able to file a sexual assault restraining order instead.
If a sexual assault restraining order does not suit your situation and you do not share a domestic relationship with your abuser, there may be other options available to you. For example, if the perpetrator is committing a crime (such as property damage, harassment, etc), you may be able to file charges in criminal court.
Do Restraining Orders Show Up on a Criminal Record in New Jersey?
If you are considering filing for a restraining order, you may wonder whether or not restraining orders will show up on the criminal record of the perpetrator.
In New Jersey, a restraining order is a civil matter, meaning that it will not show up on an individual's criminal record. However, the violation of a restraining order is a criminal offense and therefore would show up on records, as outlined in N.J.S.A. § 2C:29-9. N.J.S.A. § 2C:25-30 states that if an order is violated a second time, the defendant will face 30 days, minimum, in jail.
Also, when a final domestic violence restraining order is ordered in New Jersey, the defendant will be fingerprinted, photographed, and added to the Domestic Violence Central Registry. This registry is available for the public to search. The individual does not need to have committed a crime to be added to the registry.
Is a Restraining Order the Same Thing as a No-Contact Order?
No, a restraining order and a no-contact order are not the same things in New Jersey. While restraining orders are considered a civil matter, no-contact orders are a matter of the criminal court. A no-contact order is usually requested as part of a bail condition after an individual commits a crime. For example, a judge may grant bail with the condition that the defendant doesn't contact certain individual(s). Often, the defendant will have been accused of a violent crime, including domestic violence.
It is possible for a no-contact order to be removed if requested by the victim. The violation of a no-contact order can find the defendant in contempt of court and could lead to their bail being forfeited. This violation could also lead to harsher sentences imposed when the court date comes.
Can a New Jersey Restraining Order Be Enforced in Other States?
If you leave New Jersey, your restraining order can still protect you. United States federal law outlines that any protective order that is issued by one state must be enacted in all other states.
Can a New Jersey Restraining Order Ever Be Lifted?
Yes, in some cases, a restraining order can be lifted. One possible way is if the victim who requests the restraining order asks for it to be lifted. They would have to file a motion with the court and alert the court that the victim wishes again to have contact and no longer fears for their life.
The recipient of the restraining order also has the option of requesting that a restraining order be lifted. In this case, they will need to inform the court of why it should be lifted and should be able to prove a change of circumstances. For the restraining order to be lifted, there will usually need to be a hearing where a judge will determine whether eliminating the order is appropriate.
Does a Restraining Order Cost Money?
Many people wonder whether a restraining order costs money. Concerns over cost can be one of the main reasons an individual may hesitate to apply for a protective order.
While it does not cost anything to file a petition for a restraining order in most cases, it's always wise to consult with an attorney who can assist you with the process. You want to ensure that you are well-prepared with the necessary evidence to protect yourself and your family.
Are There Any Alternatives to Restraining Orders?
In New Jersey, one possible alternative to a restraining order is what is known as a "civil restraint agreement". A civil restraint agreement is a mutual agreement made between that defendant and the plaintiff that states that neither party will harass the other. It is intended for parties that have an existing matter in the family court.
Violations of a civil restraint agreement can be prosecuted, but the process is much more lengthy than that of a restraining order. If a civil restraint agreement is breached, the victim must file a court motion and wait for a court date.
Do I Need a Lawyer to File a Restraining Order?
You do not need to go through a lawyer in order to file a restraining order in New Jersey. However, in almost all cases, it is advantageous to have one. As mentioned earlier, this is especially true if your defendant will have a lawyer themselves, which they almost certainly will.
Expert Attorney for Restraining Orders in New Jersey
If you or your loved one is fearful for their safety and considering a restraining order, you want to make certain that you have someone who can help you navigate the courts during this frightening time. Attorney Joseph D. Lento and the Lento Law Firm are here to assist you as they have countless plaintiffs seeking restraining orders throughout New Jersey. Call today at 888.535.3686 or contact us online to see how we can assist you.