If you're embroiled in a custody dispute but also facing a restraining order, you're no doubt concerned about what will happen next but also worried that a restraining order might affect your custody issues. In New Jersey, victims of domestic violence can seek restraining orders to protect themselves from their abusers. But if an ex-partner unjustly accuses you of abuse, it can feel like the justice system is working against you. A restraining order can prevent you from contacting your ex-partner, but it can also prevent you from seeing your children. That's why you need an experienced New Jersey lawyer skilled in restraining order litigation representing you in court.
What is a Restraining Order?
In 1982, the New Jersey legislature passed the Prevention of Domestic Violence Act. See N.J.S.A. §§ 2C:25-17 - 25-35. The law allows victims of domestic violence to apply for restraining orders to protect them from their abusers. New Jersey allows two types of restraining orders, temporary (TRO) and final restraining orders (FRO). Both types of restraining orders can protect the applicant, award temporary custody of children to a parent, and order financial support for an ex-partner or children. In extreme cases, a FRO can permanently prevent you from seeing your children.
Where Do FRO and Custody Hearings Happen in Essex County?
In Essex County, custody and restraining order hearings happen in the Family Division of the Essex County Superior Court. The courthouse is open from 8:30 am to 4:30 pm.
Robert N. Wilentz Justice Complex
212 Washington St.
Newark, NJ 07102
973-776-9300 ext. 57210
How Do Restraining Orders Work in Essex County?
When an applicant requests a restraining order in Essex County, a judge will first evaluate the application in an ex parte hearing. The court will not notify you of an ex parte hearing, which will take place between the judge and the applicant, and you will not have the right to appear. If the judge issues the restraining order, it will only remain in place for about ten days until the final hearing takes place.
You will have the right to appear at the final hearing, where both you and the plaintiff will have the chance to tell your stories. Both parties can present evidence and witnesses at this hearing. However, the FRO hearing is a formal court proceeding, which can be challenging to navigate without an experienced lawyer by your side. Your best chance to win is with a skilled restraining order attorney representing you in court.
Can I Still See My Kids with a Restraining Order in Place?
In many cases, you can still see your children if you have a restraining order in place against you. It will depend on the terms of the restraining order and any restrictions the judge puts in place. The judge can include provisions concerning custody and visitation in either a TRO or a FRO. In the FRO hearing, the court may include restrictions on visitation and custody if the judge believes there is a high risk of further acts of domestic violence.
How Does a Judge Determine Custody in a Restraining Order Hearing?
Before deciding whether to limit your custody or visitation rights in a FRO hearing, the court will ask:
- Did the defendant direct the act of domestic violence at the child, parent, or both?
- Is the defendant still a threat to the parent or child?
- Does the defendant have a history of violence or domestic violence?
- Has the domestic violence occurred multiple times?
- Does the defendant have pending criminal charges or a record?
- Were there any injuries that may have occurred because of the domestic violence?
The court will also consider the testimony of witnesses in the hearing, including police officers.
The custody visitation provisions in the FRO are typically temporary. However, the family court will also consider the findings from the FRO hearing and the circumstances leading to the restraining order. Ultimately, the family court will make custody and visitation decisions based on the “best interests of the child.” To decide the child's best interest, the court will look at many factors, including:
- Whether there's any history of domestic violence
- Whether there's any drug or alcohol abuse
- Mental illness
- The child's relationship with each parent
- The stability of the home
- Whether each parent is fit
See N.J.S.A. § 9:2-4A (2016). Whatever the family court's determination, it will consider the FRO as part of the decision.
What Happens if I Violate a FRO?
Violating a New Jersey restraining order is criminal contempt of a court order and a criminal offense. See N.J.S.A. § 2C:29-9. Even what seems like a minor violation, like texting the plaintiff or sending a message on Facebook, can result in your arrest. Violating a FRO for a second time can result in 30 days in jail. See N.J.S.A. § 2C:25-30. Any violation of a FRO can affect your custody and visitation rights as well.
What Happens if I Violate a FRO Custody Order?
While violating the custody or visitation portions of your FRO probably won't land you in jail, it's still not a good idea to willfully violate a court order. However, one party may need to file an action in Essex County family court to enforce the order. However, if you violate the order, it could affect your permanent custody and visitation arrangements.
Can I Get Custody Back After the FRO Expires?
You may be able to regain custody or visitation or modify the arrangements after a period of time or once the court lifts the FRO. However, FROs in New Jersey don't typically expire. They remain in place until one of the parties asks the court to lift or modify the order. The court will then hold another hearing to determine if the restraining order is still necessary to prevent further acts of domestic violence.
Hire an Experienced FRO Attorney
If you're facing a restraining order hearing and worried about how it will affect your custody decision, you need an experienced restraining order lawyer by your side. Attorney Joseph D. Lento has helped many Essex County families through restraining orders and custody and visitation disputes. He can help you too. Contact the Lento Law Firm at 888-535-3686 or schedule an appointment online.