Restraining orders are implemented with the intention of helping victims of domestic violence prevent further domestic violence incidents. But there are some instances where the restraining order is no longer needed, or both parties have made amends and feel it is time for it to be dismissed. In these cases, filing a petition to have the restraining order dissolved might be warranted. If you are a plaintiff or defendant who wishes to have a restraining order dismissed, hiring a qualified New Jersey attorney is imperative to the success of your petition. Attorney Joseph D. Lento has years of experience helping his clients defend against unnecessary or unwieldy restraining orders.
What Is a Restraining Order in New Jersey?
In New Jersey, there are two types of restraining orders: Temporary Restraining Orders (TRO) and final Restraining Orders (FRO). Which restraining order is issued will depend on the specifics of the case.
Temporary Restraining Order
TROs are meant to temporarily protect an alleged victim of domestic violence from their abuser by prohibiting the defendant from returning to the scene of the alleged domestic violence incident or from possessing firearms and other weapons. When a plaintiff files a domestic violence complaint with the Domestic Violence Unit of the Family Division or with a local police department, they are given the opportunity to request a TRO.
If the TRO is filed with a police department, it must be one where they live, the defendant lives, or where the alleged act of domestic violence took place. Police will then contact a municipal court judge who will review the matter and decide if a TRO is appropriate.
But if it is made at the Family Division, which is in the County Courthouse, court staff will meet with the alleged victim to determine if the TRO is warranted. They will then refer it to a judge or domestic violence hearing officer, who will hear the case as soon as possible and determine if the TRO is appropriate. The judge may also make decisions over animal possession and child custody for the period the TRO is valid.
Once the TRO is ordered, law enforcement officers will serve the defendant with the order and a date for the final hearing, usually within ten days. If the plaintiff and defendant reside together, the TRO will order the defendant to leave and stay somewhere else for the entirety of the TRO. A TRO will remain in effect until a judge issues a final restraining order, removes the order, or extends it in some other way.
Final Restraining Order
During the final hearing, both the alleged victim and the alleged abuser will present testimony to the judge. If the judge finds, after considering all the evidence, that (1) the parties are in a domestic relationship, (2) the defendant committed a predicate act of domestic violence, and (3) there is an immediate need to prevent further acts of domestic violence, they will order a FRO.
FROs may also include stipulations on temporary custody of any minors, counseling or therapy for either party, or temporary possession of the residence. Additionally, if a FRO is ordered, law enforcement officials will fingerprint and photograph the defendant and fine them somewhere between $50 and $500. It should be noted that in New Jersey, FROs have no time limit, meaning they could last for years, if not indefinitely. It will remain in effect until a court closes it.
Other Types of Restraining Orders
While TROs and FROs are the most common restraining orders in New Jersey, there are two others worth mentioning.
Under the Sexual Assault Survivor Protection Act, courts have the power to issue a sexual assault restraining order that is meant to protect alleged victims of sexual violence from their abusers. It is a temporary order but can be extended by the court if a judge believes it is warranted.
Another type of restraining order is an Extreme Risk Protective Order. These are also temporary orders but are meant to protect an alleged victim if the defendant is an immediate and present danger to themselves or others because they possessed, owned, bought, or received a firearm. A family or household member of the defendant must file an Extreme Risk Protective Order with a law enforcement officer.
These orders last until the final hearing (about ten days), where a judge will review the evidence resented and determine whether to issue a final Extreme Risk Protective Order.
Why Would a Restraining Order Be Dismissed?
There are three scenarios where a restraining order might be dismissed in New Jersey:
- A victim chooses to dismiss the TRO during the final hearing.
- A judge determines there is insufficient evidence to issue a FRO during the final hearing.
- A victim chooses to dismiss a FRO.
Additionally, any victim on the restraining order may request for it to be dismissed in regard to themselves. This means that children who have reached 18 years old who were allegedly assaulted by a parent can file a petition.
Steps to Take to Have a Restraining Order Dismissed in New Jersey
If you have already obtained a TRO and want to have it dismissed, or no longer want to pursue a FRO, you must appear at the final hearing and tell the court. The judge will ask you to speak to a domestic violence counselor who will explain the cycle of domestic violence to you and ensure you know what options are available to you. After speaking with the counselor, you will sign certain paperwork that states that you acknowledge you have spoken to the counselor and that the cycle of domestic violence has been explained to you, and that you want to dismiss the restraining order and are doing so without coercion. The judge will call you back to court, where you will confirm that you want to dismiss the case.
And, if you already have a FRO, the process to have it dismissed is essentially the same, though you do have to contact the court to set up a date for it to be heard.
Alternatively, if you are a defendant who wishes to petition a FRO, you must follow the steps lined out below. Because these steps are so nuanced, having an experienced attorney on your side is highly advisable. An attorney will ensure everything is filed correctly and on time, build a strategic defense, and advocate efficiently on your behalf.
How to ask the Court to dismiss a final restraining order:
- Fill out a Notice of Motion for Dismissal of a Final Restraining Order by Defendant.
- Fill out the Certification in Support of a Motion to Dismiss a Final Restraining Order, making sure to include copies of all previous orders.
- Fill out the Notice to Plaintiff.
- Fill out the Cover Letter.
- Make three copies of everything and mail or deliver it to the court.
During the petition, the judge will consider the following to determine if there is enough good cause to dismiss the restraining order:
- Whether or not the plaintiff consents to the dismissal
- Whether or not the plaintiff is still in fear of the defendant
- The nature of the relationship between plaintiff and defendant
- The number of times the defendant has been convicted for violating the order
- Whether or not the defendant continues to use drugs or alcohol
- Whether or not the defendant is still involved in other violent acts with other individuals
- If the defendant attended counseling
- The age and health of the defendant
- Whether or not the plaintiff is acting in good faith when opposing the defendant's request to dismiss the FRO
- Whether or not another court has ordered another TRO or FRO between the plaintiff and defendant
- Any other factors the judge thinks are relevant
The court conducts a qualitative analysis. This means that the judge will run through these factors, and any other factors they believe are relevant, and determine how much weight each one has. So even if you have ten in your favor and one not in your favor, if that one that is not in your favor holds more weight than the others, the judge may still deny your petition for dismissal. It is important to show as much evidence to reflect the changes you've made since the FRO has been issued, or in instances where the defendant has been falsely accused and adjudicated as such, what went wrong during the final hearing, and what has happened since.
What Happens After a Restraining Order is Dismissed in New Jersey?
Final restraining orders live on your criminal records and will pop up on background checks for as long as they are in effect and cannot be expunged. The only way to have a clean background check is to have the restraining order formally dismissed by a judge. Once that happens, a record of the restraining order only lives within the court's records as proof of a potential pattern if another restraining order, whether by the same victim or a new alleged victim, is brought against the defendant later on.
And for alleged victims, if the restraining order is dismissed, there is no further court-ordered protection present. The defendant can be in the same vicinity as you without having to worry about repercussions.
How an Experienced New Jersey Attorney Can Help
Restraining orders can wreak havoc on a defendant's ability to live and work easily. A FRO remains on your criminal record after being issued and will pop up on every background check you undergo, making it hard to get new jobs and limiting the places you might find work. Additionally, the other court decisions that are included with the FRO – like who has possession of the residence or what child custody looks like between the plaintiff and defendant – can become cumbersome and frustrating. If you or someone you love has been on the receiving end of a restraining order, the best course of action is to petition to have the FRO dismissed.
Working with an experienced attorney is the safest way to not only ensure your filings are done correctly but that the judge actually hears your case. So often, defendants believe that this is an easy petition in which they might represent themselves. But even the New Jersey court system urges defendants to hire an attorney because presenting the necessary proof is complicated. An attorney, like Attorney Joseph D. Lento, will work diligently to create a strategic defense that advocates on your behalf.
Alternatively, if you are a plaintiff wishing to dismiss a TRO or a FRO, an attorney will be able to help you determine if that is the best plan for your situation and, if so, help you navigate the proceedings.
Call 888-535-3686 today to schedule a consultation. Attorney Joseph D. Lento is a highly skilled New Jersey attorney with years of experience working on restraining order-related petitions. You are not alone in this endeavor; Attorney Lento and his team at the Lento Law Firm are here to help.