Weapons and Restraining Orders

 

As Americans, our right to own a weapon is found in the Constitution within the Second Amendment. The right to own a weapon is not absolute, however. There are several ways that an individual can lose their ability to legally possess a weapon. One way that an individual can lose their gun rights is by having a restraining order filed against them. If you have legal questions, then make sure that you speak to an attorney right away.

Restraining Orders Briefly Explained

A restraining order is a court order meant to protect someone from being harmed by someone else that is in a domestic relationship with them. A restraining order can restrict the accused from contacting the person seeking protection, coming within a certain distance of them, or having any contact with anyone close to the person seeking protection. Restraining orders are put in place to protect victims from any further acts of violence. If the parties involved in a restraining order case live together, then the accused can be forced to move out of the shared home.

How Can the Presence of Weapons Affect a Restraining Order Petition?

A judge that presides over a restraining order case has the authority to require a defendant to turn over any guns under New Jersey law. Pursuant to the New Jersey Statutes 2C:25-28(j), once a final restraining order has been granted, then the judge is required to prohibit the defendant from possessing or purchasing a gun. These measures include a prohibition on the defendant using or getting a firearms purchaser identification card and require the defendant to immediately surrender any guns or other dangerous weapons to the police.

These prohibitions will be in place as long as the restraining order is in place or for two years, whichever is longer. Restraining orders are permanent and require a separate motion to the court to have a restraining order canceled. If a temporary restraining order is granted, then the judge has the discretion to require that any weapons must be surrendered, but the judge is not required to do so under New Jersey law. If the defendant is a member of law enforcement or the military, then they retain their rights to possess and use a firearm only in the course of duty. Any violations of gun prohibitions can result in criminal charges.

Who Can Seek a Restraining Order?

New Jersey law generally allows victims of domestic violence, sexual assault, or stalking the right to seek a restraining order. Pursuant to the New Jersey Statutes, a “victim of domestic violence” can be any of the following:

  • At least 18 years old (or an emancipated minor) who is a victim of assault by a current or former spouse or roommate
  • Is a victim of assault by someone with who they share a child or anticipate sharing a child
  • Is a victim of assault by a dating partner

It is important to note that restraining orders are not available for protection from friends, acquaintances, neighbors, co-workers, etc. If the petitioner is not in a domestic relationship with the alleged abuser, or a victim of sexual assault or stalking, then the court will not grant any restraining order requests.

What Must Be Proven for a Restraining Order to be Granted?

For a restraining order to be granted, the petitioner has the burden of proof which requires him or her to prove the allegations made in court. The petitioner must prove by a preponderance of the evidence that the harm as alleged occurred and that continued protection of the petitioner by the court is necessary to ensure the petitioner's safety. If the petitioner is unable to prove the allegations or does not qualify for a restraining order based on the allegations made, then the court will deny granting a final restraining order.

The defendant in a restraining order petition is not required to prove anything nor is required to present any evidence or testimony at a final restraining order hearing. It is uncommon for a defendant to just sit silently and not cross-examine the petitioner and his or her witnesses during a final restraining order hearing, but, technically, a defendant can win a hearing without saying a word. Whatever strategy is taken must be based on appropriate preparation and review of an individual case. The approach that you take to either obtain or defend against a restraining order petition should be based on your unique facts and circumstances. It is important to have an experienced attorney review your case to determine the best approach so you can be successful.

How an Experienced Attorney Can Help

If there are weapons alleged to be in possession of the defendant or alleged to have been used by the defendant in committing harm against the petitioner, then the court will likely treat the case with the utmost caution. If you are seeking a restraining order, then it can be important to specifically detail what type of weapons are in the defendant's possession so they can be seized by the court. If you are a defendant facing false allegations, then it is just as important to properly defend yourself, so you don't lose your Constitutional right to bear arms. If you have legal questions, then give us a call at the Lento Law Firm so we can help!

Contact the Lento Law Firm Today

If you have questions about how weapons can affect a restraining order, then make sure you speak to an experienced attorney. A restraining order can be a useful tool for victims of violence but can also be based on false accusations. The attorneys at the Lento Law Firm have the experience and knowledge to help you with your case. To learn why the Lento Law Firm is the right choice, call us toll-free at 888-535-3686 or contact us online.

Contact a Family Law Attorney Today!

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Attorney Joseph D. Lento has more than a decade of experience practicing Family Law in New Jersey. If you are having any uncertainties about what the future may hold for you and your family, contact our offices today. Family Law Attorney Joseph Lento will go above and beyond the needs for any client and fight for what is fair.

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