In New Jersey, restraining orders are a tool used by the courts to help protect victims of domestic violence from their abusers. Victims can seek these orders from the court to obtain temporary custody of children, financial support and prevent an abuser from contacting them. But if you're a defendant to a protective order application and unjustly accused of domestic violence, the court process can be frightening and can permanently affect your ability to see your children. As a result, it's essential to have a skilled New Jersey family law attorney by your side during the restraining order litigation process.
What is a Restraining Order?
Under New Jersey's Prevention of Domestic Violence Act, a 1982 law, victims of domestic violence and certain other crimes can obtain a restraining order. See N.J.S.A. §§ 2C:25-17 - 25-35. This court-ordered document can prevent you from approaching or contacting the petitioner temporarily or permanently. A restraining order can also affect your ability to see your children in some cases.
New Jersey law allows two types of restraining orders, temporary (TRO) and final restraining orders (FRO). A final restraining order is permanent in New Jersey. The order remains in place until the petitioner/plaintiff or the defendant asks the court to modify or lift the FRO. Restraining orders often include clauses awarding child custody to one parent, providing financial support for a child or significant other, and preventing the defendant from contacting the plaintiff.
Where Do FRO and Custody Hearings Happen in Cape May?
In Cape May County, custody and restraining order hearings happen in the Cape May County Family Division in the Cape May County Courthouse building. The courthouse is open from 8:30 am to 4:30 pm.
Cape May County Courthouse
9 N. Main Street
Cape May, NJ 08210
How Do Restraining Orders Work in Cape May County?
When a Cape May County judge receives an application for a restraining order, they will review the application in an ex parte hearing, meaning you won't be notified or allowed to be present. If the judge decides to issue a temporary restraining order (TRO) in this hearing, it will only remain in place until the final hearing, which will take place in about ten days.
During the final TRO hearing, both parties will have an opportunity to present evidence and witness testimony to support their story. However, a FRO hearing is a formal court hearing, and both parties must comply with court rules and the rules of evidence. As a result, it can be challenging to navigate a FRO without a lawyer by your side.
Can I Still See My Kids with a Restraining Order in Place?
In some cases, you may be able to see your children with a restraining order in place, depending on the order's provisions. Both TROs and FROs can award temporary custody to a parent and provide for supervised or unsupervised visitation. However, if the judge believes there is a credible threat of violence, a TRO may prevent you from seeing your children until the court resolves the final hearing. During a final hearing, in some cases, the judge may order only supervised visitation or may even remove custody from you temporarily or permanently. Therefore, you need to have a family lawyer experienced in restraining order litigation represent you during the restraining order process
How Does a Judge Determine Custody in a Restraining Order Hearing?
Before deciding custody or visitation during a FRO hearing, the court will look at:
- If the defendant has a history of violence or domestic violence
- Whether the defendant directed the act of domestic violence at the child, parent, or both
- If the domestic violence occurred multiple times
- Whether the defendant accused of domestic violence is still a threat to the parent or child
- The injuries occurred because of the domestic violence
- If the defendant has pending criminal charges or a record
- Any testimony of witnesses in the FRO, including police officers
When a judge makes a custody or visitation determination during a FRO hearing, those provisions are temporary, with final custody determinations made by the family court. However, the family court will consider the FRO against you, as well as the circumstances leading to the order, when making visitation and custody determinations.
In New Jersey, the judge will look at the child's best interests when determining custody and visitation, considering many factors, including:
- Any history of domestic violence
- Drug or alcohol abuse
- Mental illness
- The parent's relationship with the child
- The stability of each home
- The fitness of each parent
What Happens if I Violate a FRO?
Violating a restraining order in New Jersey is criminal contempt of a court order, and it is a criminal offense. See N.J.S.A. § 2C:29-9. Violating a court order, even with a small act, like a text or email to the plaintiff, can also affect your child custody and visitation and result in an arrest. Moreover, a second violation can land you in jail for 30 days. See N.J.S.A. § 2C:25-30.
What Happens if I Violate a FRO Custody Order?
While violating the custody and visitation portion of a FRO may not land you in jail, a willful violation of a court order is never a good idea. A violation could affect your permanent visitation and custody matters in family court. A violation could also result in the removal of visitation or custody.
Can I Get Custody Back After the FRO Expires?
You may be able to regain custody or visitation after some time or once a court lifts the FRO. However, in New Jersey, final restraining orders don't expire. Instead, one of the parties must ask a judge to lift or modify the order. The court will typically hold another hearing to determine if the FRO is still necessary to prevent future acts of domestic violence. Therefore, it's best to have an experienced lawyer skilled in family law and restraining order litigation.
Hire an Experienced Restraining Order Attorney
If you're facing a final restraining order hearing and are concerned about custody issues, you need an experienced lawyer to guide you through the process. Attorney Joseph D. Lento has helped Cape May County families through years of restraining order litigation and custody and visitation disputes. He can help you too. Contact the Lento Law Firm at 888-535-3686 or schedule an appointment online.