If someone has applied for a restraining order against you, it can be overwhelming and scary, especially if you're concerned about what might happen with the custody of your children. While restraining orders can be a valuable tool to protect victims of domestic violence from their abusers, if you're accused of abuse you didn't inflict, you need an experienced New Jersey lawyer on your side. A restraining order can affect your child custody and visitation temporarily or permanently.
What is a Restraining Order?
Under New Jersey law, victims of domestic violence can apply for a restraining order to protect themselves from their abusers. See N.J.S.A. §§ 2C:25-17 - 25-35. These court orders, created under New Jersey's Prevention of Domestic Violence Act, can prohibit you from contacting or coming near the applicant or your children.
There are two restraining orders in New Jersey, temporary (TRO) and final restraining orders (FRO). A final restraining order is typically permanent and remains in place until the final hearing takes place. While temporary and final orders can include provisions awarding temporary custody, protecting the plaintiff, and awarding financial support, a TRO will typically only remain in place for about ten days. A FRO will remain in place until one of the parties asks a court to lift or modify the order.
Where Do FRO and Custody Hearings Happen in Salem County?
In Salem County, restraining order and custody hearings happen in the Family Part of the Chancery Division of the Salem County Superior Court. The courthouse is open from 8:30 am to 4:30 pm.
92 Market Street
Salem, NJ 08079
How Do Restraining Orders Work in Salem County?
When an ex-partner or family member applies for a restraining order against you, the judge will first review it in an ex parte hearing. You don't have the right to appear in this hearing, and the court won't notify you ahead of time. If the judge enters a TRO, it will only remain in place for about ten days until the final hearing.
The court will notify you of the date for the final hearing and serve you with the TRO. You'll have the right to appear at the FRO and tell your side of the story. Both you and the applicant have the right to present evidence and witness testimony. The FRO hearing is a formal court hearing, and it can be difficult to navigate without legal training. That's why you need a New Jersey attorney skilled in restraining order litigation representing you in court.
Can I Still See My Kids with a Restraining Order in Place?
Depending on the terms of your restraining order, you may be able to continue to see your kids. In some cases, the TRO may prevent you from visiting your children until the court resolves the final hearing. Additionally, the FRO can also contain provisions preventing you from seeing your children or awarding temporary custody to your co-parent. If the judge believes you are responsible for domestic violence during the FRO hearing, it may permanently affect your parental rights.
How Does a Judge Determine Custody in a Restraining Order Hearing?
The court will evaluate several factors before making a custody or visitation decision during a restraining order hearing, including:
- Whether the defendant has any pending criminal charges or a criminal record
- Whether the defendant directed violence at the child, parent, or both
- Whether the defendant is a threat to the parent or child
- If the defendant has a history of violence or domestic violence
- Whether the domestic violence happened multiple times
- Any injuries that occurred due to domestic violence
The court will also consider the testimony of any witnesses in the FRO, including police officers.
Custody and visitation provisions in a FRO are usually temporary with final custody determinations made by the family court. However, the family court will consider the findings from your FRO hearing, including any evidence of domestic violence. Ultimately, the court must decide the “best interests of the child.” To make this decision, the court will look at many factors about both parents and both homes, including:
- Any history of domestic violence
- Any history of mental illness
- Any history of drug or alcohol abuse
- The fitness of each parent
- The child's relationship with each parent
What Happens if I Violate a Restraining Order?
Violating the no-contact provisions of a restraining order is a criminal offense in New Jersey. See N.J.S.A. § 2C:29-9. You could be arrested for even sending a text to the plaintiff. If you violate the order a second time, you'll be arrested and could face 30 days in jail. See N.J.S.A. § 2C:25-30. Moreover, any violation of your restraining order could lead to the family court removing custody or visitation permanently.
What Happens if I Violate a FRO Custody Order?
Even though violating a custody provision of your FRO may not be a criminal offense, it's still not a good idea. Violating the custody or visitation provisions of your FRO could affect permanent custody decisions by the family court.
Can I Get Custody Back After the FRO Expires?
You may be able to get custody back after a court issues a FRO against you. However, FROs in New Jersey don't expire. One of the parties must ask the court to lift or modify the order. Before lifting the order, the court will likely hold another hearing to determine if the FRO is still necessary to protect the plaintiff from domestic violence. Your best chance of regaining custody or visitation or lifting a restraining order is to retain a skilled New Jersey lawyer with experience in family law, criminal law, and restraining order litigation.
Hire an Experienced FRO Attorney
When you're facing a restraining order hearing and are concerned
about custody issues with your ex-partner, you need an attorney guiding you through the process. Attorney Joseph D. Lento has helped many Salem County families through the restraining order process and custody and visitation disputes. He can help you too. Contact the Lento Law Firm at 888-535-3686 or schedule an appointment online.