If you are considering getting a restraining order (RO) or may be facing a restraining order in New Jersey, then it is important to understand the restraining order process. The provisions in restraining orders can regulate an individual's activity, behavior, and where they can physically go. Restraining orders are civil orders, so this means that in themselves, they are not criminal charges. However, one wrong move and the person named in a restraining order can find themselves facing criminal charges in addition to the restraining order.
Restraining orders and criminal charges operate independently from one another, although the information gained from one proceeding can be used in the other proceeding if the circumstances allow. It is important to know what exactly you are facing when dealing with a potential restraining order or criminal charge. If you have legal questions about restraining orders or how criminal charges can relate, then it is important that you speak to an experienced attorney as soon as possible.
Restraining Orders Explained
Restraining orders can be granted by judges separate from any criminal proceeding or case. A restraining order can limit someone from several activities, include having contact with someone or being in their vicinity. A judge will grant a restraining order when allegations of violence or other harm are made by a specific individual. To be eligible for a restraining order, those involved must be in a qualified domestic relationship.
If the alleged misconduct is sexually assaultive in nature, then an alleged victim can seek a restraining order pursuant to the Sexual Assault Survivors Protection Act (SASPA). Under SASPA, those who claim to have been sexually assaulted have an option to seek a protective order independent of any criminal charges or proceedings. Before the passing of SASPA in New Jersey, those alleging sexual assault were unable to seek protective orders unless they were in a qualified domestic relationship with the alleged perpetrator. The only option previously to seek any sort of protective order was through a criminal case. If an individual is charged with a criminal offense, then the presiding judge can set bond conditions on the defendant to protect the alleged victim.
Whether the alleged assailant is a stranger or a former partner, a petitioner can seek a restraining order. If a restraining order is granted, then it will limit the defendant's ability to see or have contact with the alleged victim. If that is all the petitioner wants to do, then the petitioner is not required to file any criminal charges against the defendant. Filing a restraining order is an intermediary option that some petitioners may prefer due to the lower standards of proof and the ability to avoid an in-depth investigation and prosecution.
If someone wants to request a restraining order against someone else, then they must petition their local county court. In filing a petition, the petitioner must give a detailed explanation of their allegations, including the date, time, and who was present. If there are any prior allegations of violent or assaultive behavior, then the judge will want to know about them as well. Restraining orders can be granted for the following types of alleged conduct:
- Sexual assault,
- Kidnapping, or
- False imprisonment.
For a restraining order to be granted, a judge will examine if the facts and circumstances are sufficient to find assaultive behavior is present under the categories of domestic violence or sexual assault. A restraining order will be granted if the judge finds it necessary to protect the petitioner from any future harm.
What Types of Restraining Orders Exist?
Two types of restraining orders are available in New Jersey: Temporary Restraining Orders (TROs) or Final Restraining Orders (FROs).
A Temporary Restraining Order (TRO) is an immediate and short-term restraining order that can be ordered if an allegation of domestic violence or sexual assault is made. The petitioner must first file for a TRO when seeking a restraining order. This petition must be made to the appropriate superior court or local police station. TRO petitions will only be granted once the judge hears the petitioner's side of the story in a live hearing. If the judge grants the TRO, then the defendant is served with the TRO by the local police or county sheriff. TRO hearings are held ex parte, outside of the presence of the defendant or any attorneys. In TRO hearings, the judge only hears the petitioner's side of the story.
A Final Restraining Order (FRO) is a permanent restraining order that a judge can grant after conducting a full hearing. In a FRO hearing, both the petitioner and defendant can present their cases. After a hearing is completed, a judge will decide if a FRO is warranted. If one is granted, then it can list several provisions regulating the defendant's conduct. FROs are permanent orders and cannot be canceled without a judge's approval. If a TRO is initially granted, then a FRO hearing will be scheduled to take place within ten days. The TRO will be valid until a decision on a permanent FRO is made.
What Type of Action is a Restraining Order?
Restraining orders are civil actions that carry the power of law enforcement. If someone violates any of the terms of a restraining order, then they can face criminal proceedings. Shortly after a judge grants a restraining order, the restraining order will be entered on police databases along with its specific provisions. This is meant to assist police in the event a call for help is made. The granting of a restraining order does not generate an entry onto anyone's criminal record. If the defendant named in a restraining order is alleged to violate the restraining order, then the arrest and subsequent charges will appear on his or her criminal record.
Those who are named in a restraining order also lose their second amendment right to own a firearm under New Jersey law. Any firearms that are owned by the defendant will need to be turned over to the local police station immediately. The only way that a defendant will regain their right to own a firearm is if the restraining order is canceled. Violating this law can result in separate criminal charges for illegally possessing a weapon.
What Happens If You Violate a Restraining Order?
If someone violates a restraining order, then it turns from a civil to a criminal matter. This is because anyone violating a restraining order provision is subject to a criminal contempt charge. Under New Jersey law, alleged violators of a restraining order must be taken into custody by police, even if the allegation is untrue. Violations of restraining orders are punished by criminal contempt charges that operate as follows:
- First violation: up to 180 days in jail and up to a $1,000 fine.
- Second violation: mandatory 30 days in jail.
If the complainant alleges domestic violence in the restraining order violation, then the defendant can be charged with a fourth-degree felony. If convicted, the defendant can serve up to 18 months in prison and be assessed a fine of up to $10,000.
A Criminal Charge Explained
The actions alleged in restraining order petitions can often also be the basis for criminal charges. Based on what is alleged, there are various potential criminal charges that a defendant in a restraining order petition can face. Criminal charges have wide-ranging power and can affect your freedom, your livelihood, and your future. Criminal charges can end up in convictions, and those convictions and the record of the case will be made public. A petitioner seeking a restraining order does not have to seek criminal charges separately or concurrently. If someone has filed criminal charges, then a restraining order may be unnecessary as the presiding judge can order protective conditions at the beginning of the case. An
What is the Difference Between a Sexual Assault Protective Order and a Criminal Complaint in New Jersey?
Under a sexual assault protective order, a judge can order whatever is necessary to protect the petitioner from the defendant. If this is all the petitioner wants and does not want to pursue criminal charges, then the petitioner can stop there. Police investigations regarding restraining orders are limited because they are not conducted with the intention of criminal prosecution.
If the petitioner wants to file a criminal complaint, then they will be subject to a full investigation by the police to ensure the appropriate level of evidence is present to authorize criminal charges. A sexual assault investigation is among the most serious that a police department will face and will require a probing investigation. Recorded statements will be taken, and physical evidence can be collected when a criminal complaint of sexual assault is made.
Under the New Jersey Revised Statutes at 2C:14-14, a petitioner can seek a protective order, and a judge may grant a protective order regardless of whether a criminal complaint has been filed. Protective orders are processed in the Family Division of the Superior Court and not in the criminal court. Because protective order cases are civil cases, the burden of proof is lower, requiring a preponderance of evidence to be granted. If a criminal complaint is filed, then a criminal conviction requires the highest level of proof, known as proof beyond a reasonable doubt. Ultimately, it is easier from a burden of proof perspective to get a protective order authorized than it is to secure a criminal conviction.
What Happens When a Restraining Order is Granted in New Jersey?
If a judge grants a final restraining order after conducting a full hearing, then the order is immediate, and it is permanent. The most common provisions that a restraining order will contain include:
- Prohibiting the defendant from having any contact with the petitioner; and
- Prohibiting the defendant from committing any nonconsensual sexual acts, or any attempted acts against the petitioner;
Other common provisions that a restraining order will contain include:
- Prohibiting the defendant from going any place that the petitioner is known to go, including their home, school, or place of employment. This can include protection for the petitioner as well as their family or household members;
- Prohibiting the defendant from attempting contact through third parties or any direct contact through any means. This includes in-person contact, telephone contact, written contact, or any electronic contact or attempts at communication. Any contact that is perceived to threaten or harass the petitioner can be deemed as a violation of a restraining order;
- Prohibiting the defendant from making any threats or stalking the petitioner; and
- Prohibiting the defendant from harassing the petitioner. This includes any form of cyber harassment which can result from social media posts or other forms of internet harassment.
The violation of a restraining order is a criminal contempt charge but does not necessarily have to result in criminal charges. If someone violates a restraining order but did not otherwise commit a crime, then their punishment will be limited to contempt charges.
If the defendant is also charged with a crime of domestic violence or sexual assault, then they can face imprisonment, sex offender registration, court supervision, and significant fines along with other penalties as deemed appropriate by the court. If you have legal questions, then call us at the Lento Law Firm so we can help!
Contact the Lento Law Firm Today
If you have questions about how restraining orders and criminal charges differ, then it is important that you speak to an experienced attorney right away. It is important to know the differences between both processes to understand what obstacles may lie ahead and how to best petition or defend your restraining order case correctly. Attorney Joseph D. Lento and his team have helped countless clients throughout New Jersey overcome their concerns related to restraining order and criminal cases. To learn why the Lento Law Firm is the right decision to help you with your restraining order or criminal case, call us at 888-535-3686 or contact us online.