If you're facing an upcoming hearing for a restraining order, you're undoubtedly worried about what will happen in this process, how this will affect your life, and, most importantly, how this will affect your kids. Restraining orders are a valuable way to protect victims of domestic violence from their abusers. However, if you're unjustly accused of abusing an ex-partner or your children, it can affect your child custody and visitation, in some cases permanently. To avoid losing your parental rights, you need to have a skilled New Jersey attorney by your side to help you through the restraining order process.
What is a Restraining Order?
Under New Jersey's 1982 law known as the Prevention of Domestic Violence Act, 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. A court-ordered restraining order can prevent you from contacting your ex-partner and, in some cases, can prevent you from seeing your children.
Where Do FRO and Custody Hearings Happen in Somerset County?
In Somerset County, custody and restraining order hearings happen in the Family Part of the Chancery Division of the Somerset County Superior Court. The county courthouse is open from 8:30 am to 4:30 pm.
20 North Bridge Street
Somerville, NJ 08876
How Do Restraining Orders Work in Somerset County?
If someone applies for a restraining order against you, a judge will first look at the application in an ex parte hearing. The court won't notify you of this hearing in advance, and only the plaintiff will attend. However, if the court issues a temporary restraining order in this hearing, the court will serve you with a copy of the TRO and notice of the upcoming final hearing. The TRO will only remain in place until the final hearing, in about ten days.
At the final hearing, you will have the right to attend and present evidence and any witness testimony in support of your case. The plaintiff will also have the opportunity to introduce evidence and witnesses. However, this hearing is a formal court proceeding, which can be difficult to successfully navigate without an attorney. As a result, you must have an experienced New Jersey restraining order litigator with you in court.
Can I Still See My Kids with a Restraining Order in Place?
You may still be able to keep seeing your children with a restraining order in place. However, it depends on the provisions of the order. Both TROs and FROs can provide for temporary custody and visitation, and, in some cases, a TRO may prevent you from seeing your children until the full hearing occurs. Moreover, during the FRO hearing, the judge will be deciding if a FRO is necessary to prevent future acts of domestic violence. If the judge believes this is necessary, the FRO may prevent you from visiting your children.
How Does a Judge Determine Custody in a Restraining Order Hearing?
No judge will unilaterally restrict your parenting rights. Instead, during the FRO hearing, the court will ask several questions, including:
- Did you direct domestic violence at the child or parent?
- Are you still a threat to the parent or child?
- Do you have a history of violence or domestic violence?
- Did the domestic violence occur multiple times?
- Do you have any pending criminal charges or a record?
- Were there any injuries from the domestic violence?
- How did witnesses in the FRO, including police officers, testify?
A judge's custody provisions in a FRO are generally temporary, leaving final custody and visitation decisions to the family court. However, the findings in the FRO will undoubtedly affect the family court's custody decisions. When evaluating custody, the family court must decide the “best interests of the child.” As part of this analysis, the court will look at any domestic violence in the relationship and other factors, including:
- Any drug or alcohol abuse
- Any history of mental illness
- The child's relationship with each parent
- How stable each home is
- Whether each parent is fit
See N.J.S.A. § 9:2-4A (2016). But if the judge in your FRO hearing decides that domestic violence did happen and that there's still a risk of violence, you may also lose custody in family court.
What Happens if I Violate a FRO?
Restraining orders are a civil matter in New Jersey. However, violating the no-contact portion of a restraining order is criminal contempt of court, and it is a criminal offense. See N.J.S.A. § 2C:29-9. If you violate the order in even a small way, you may face arrest. If you violate the FRO again, you can end up in jail for 30 days. See N.J.S.A. § 2C:25-30.
What Happens if I Violate a FRO Custody Order?
You may not end up in jail for violating the custody or visitation portion of a final restraining order. However, willfully violating a court order is never a good idea. If the plaintiff goes back to court, or if you still have a custody decision pending in family court, violating the order may affect the judge's decision on your permanent custody and visitation rights.
Can I Get Custody Back After the FRO Expires?
You may be able to regain custody or visitation eventually. However, FROs don't typically expire in New Jersey. One of the parties to the FRO must ask the court to modify or lift the order. If you petition to remove the order, the court will probably set another hearing. In the hearing, the court will again evaluate whether a FRO is necessary to prevent future acts of domestic violence. If you'd like to regain custody or modify a FRO, your best chance at success is with an experienced New Jersey attorney by your side.
Hire an Experienced FRO Attorney
Facing a restraining order hearing is a serious matter in New Jersey, particularly if you have children and may lose custody. You need a skilled family law attorney with experience in restraining order litigation guiding you through the process. Attorney Joseph D. Lento has helped many Somerset County families through custody disputes and restraining order litigation. He can help you too. Contact the Lento Law Firm at 888-535-3686 or schedule an appointment online.