If you're applying for a restraining order in New Jersey, the entire process can seem confusing and hard to understand. But it's important to understand the restraining order process, what it can do for you, and how defending a restraining order works. You shouldn't try to handle a restraining order by yourself. Getting a restraining order is an important step, and you want to ensure the best possible chance for success. In this article, we'll discuss what a restraining order is, the type of lawyer you need to handle the process, and the best way to succeed in your petition or defense in court.
What Is a Restraining Order?
In New Jersey, domestic abuse can be a serious issue and devastating to families and communities. To wrestle with the problem, in 1982, the New Jersey legislature passed the Prevention of Domestic Violence Act. See N.J. Stat. §§ 2C:25-17 - 25-35. Under the Act, domestic violence victims, and victims of some other crimes, can get court orders to protect themselves from their abusers. A New Jersey restraining order can prohibit someone from contacting you or coming within a certain distance of you for a set period or indefinitely.
How Can I Use a Restraining Order?
The courts in New Jersey use restraining orders to protect victims of domestic violence and sexual assault from their assailants. The courts can also use restraining orders to prevent contact between two parties, give spousal or child support, and award temporary child custody to one parent. These orders are a necessary tool to protect victims of violence and sexual assault.
Restraining orders can also have severe repercussions for the defendant, which helps enforce their provisions. If a final restraining order (FRO) is issued, the defendant faces a $500 fine, fingerprints, photographs, and placement in New Jersey's domestic violence registry. Our state law also prevents the defendant from owning, buying, or possessing firearms. In many cases, police will also remove a FRO defendant from a home they share with you if necessary for your protection. The defendant may lose custody or visitation of the children. The court may order them to pay spousal and child support and order them to continue paying rent or a mortgage. Whether you're pursuing a restraining order or defending one, a New Jersey restraining order attorney can explain the full consequences and help you determine how best to proceed.
The Restraining Order Process
In New Jersey, the restraining order process involves three steps: an application, an ex parte hearing with a judge for a temporary restraining order, and a final hearing.
The Restraining Order Application
You can apply for a restraining order at the Family Part of the Chancery Division of the Superior Court at a county courthouse. If you file a domestic violence complaint in New Jersey, you can also ask for a temporary restraining order (TRO) at your local police station. If you file a complaint locally, you need to file it at the police station in the area where you or the defendant live or where the incident of domestic violence happened. At your local station, the police will often contact a municipal court judge and help you obtain a TRO in person or over the phone. If you complete the paperwork for a TRO at the Family Part at the courthouse, a judge will then meet with you to determine if you qualify for the TRO.
The Temporary Restraining Order Hearing
You can immediately ask for an ex parte temporary TRO when filing for a restraining order. “Ex parte” means that a judge will meet with you without the defendant present to determine if you qualify for the restraining order, based only on the information you provide. The judge will grant the TRO if they feel it is necessary to protect your life, health, or well-being. The TRO can remain in place until the hearing for a final restraining order, which normally happens within 10 days. See N.J.S.A. §§ 2C:25-28(a), (f); 2C:25-29(a).
The Final Restraining Order Hearing
Both you and the defendant will have notice of the final hearing date and time, and you both have the right to appear. Both parties will have the chance to present evidence, examine and cross-examine witnesses, and present evidence at the final hearing. To grant a FRO for domestic violence, the court must find a qualifying domestic relationship, that the defendant committed an act of domestic violence, and that the order is necessary to prevent future domestic violence.
Qualifying Domestic Relationship
FROs aren't available for strangers, only for those with certain qualifying intimate or domestic relationships, such as
- Married or formerly married couples
- Dating or formerly dating couples
- Those with a similarly intimate relationship
- Siblings, children, and parents
- Members of the same household
- Same-sex couples
- Couples with a child together
- Family members by marriage or blood
Neighbors, co-workers, friends, and other relationships that don't meet the qualifications above cannot obtain a FRO
Act of Domestic Violence
To get a restraining order, you'll also need to show that an act of domestic violence occurred. If a court has already convicted the defendant of domestic abuse, your task may be easier. In New Jersey, many crimes qualify as domestic violence, including:
- Sexual assault
- Criminal mischief
- Criminal coercion
- Criminal trespass
- False imprisonment
- Cyber harassment
- Contempt of a domestic violence order that is a crime or “disorderly persons offense”
- Any other crime that involves a risk of serious bodily injury
If the defendant doesn't have a conviction, this doesn't make your task impossible. If you have documentation from physical violence, such as an emergency room visit, photographs, and witnesses, it may help your case. Likewise, having documentation of threatening messages, destruction of property, break-ins, or stalking can also help your case. But it's important to remember that a final restraining order hearing is a formal court proceeding. These proceedings can be challenging to navigate without formal legal training. The judge will expect both parties to comply with the court's rules and the rules of evidence. Your best chance of success will be with an experienced New Jersey restraining order litigator by your side.
Preventing Future Domestic Violence
Finally, to grant the final restraining order, the judge must also believe that the order is needed to prevent future acts of domestic violence. Again, you can help your case by presenting documentation of threats and injuries as well as witness testimony.
Terms of the Final Restraining Order
If the judge decides to grant the FRO at the hearing, they will enter an order with more details than the temporary restraining order. It can include provisions that will:
- Prevent the defendant from contacting or harassing you or your children
- Provide for temporary custody and financial support for your children
- Order financial support for rent, a mortgage, a car loan, insurance, or other ongoing financial obligations
- Protect you from violence
- Keep the defendant from owning or possessing firearms
- Order the defendant to attend counseling or therapy
There are many options for the final order, and your attorney can help you with suggestions for provisions to place in the order.
The judge can order the FRO to remain in place indefinitely until one of you petitions the court to end or modify the order. See N.J.S.A. § 2C:25-29(d). Once in place, the defendant will have to pay a $500 fine and can no longer own or possess a firearm. The New Jersey police will also place the defendant's photo, fingerprints, and information in a statewide domestic violence database.
What Kind of Lawyer Do I Need for a Restraining Order?
Whether you're applying for a restraining order or defending against one, you're probably wondering the best kind of lawyer for the proceeding. Not all attorneys will handle a restraining order, but you may encounter lawyers who practice family law, criminal law, and general practitioners in your search.
A final restraining order involves both informal and formal hearings. The final hearing before the judge will be a formal hearing that complies with the court's rules and the rules of evidence. As a result, you'll need an attorney who is experienced in litigation, interviewing witnesses, presenting evidence in court, and someone well versed in domestic violence prosecution and defense.
Family Law Attorneys
Family law attorneys specialize in family matters, including separation and divorce, child custody matters, and child and spousal support issues. Family law attorneys often spend time in court and hearings advocating for families and children. Using a family law lawyer for a restraining order matter can be useful if you are also dealing with complex custody and visitation matters in family court. Your attorney may already be familiar with your history of domestic abuse.
Criminal Law Attorneys
Criminal law attorneys handle criminal defense, including criminal trials and defense of domestic violence or child abuse allegations. Because criminal defense lawyers are intimately familiar with defending criminal allegations, they can be helpful in a restraining order matter whether you are the applicant or the defendant. Understanding how another attorney will attempt to defend the respondent to the restraining order will be crucial in presenting a good case with evidentiary support to the judge in the final restraining order hearing.
General practitioners are typically the jack-of-all-trades in the legal world. They may handle everything from drafting simple wills, assisting in business formation, tax law, and family and criminal law matters. However, general practitioners are not always litigators, and they may not have the extensive experience in criminal or family law matters necessary to handle a FRO effectively. Unless you find a general attorney with extensive experience handling restraining orders, this may not be the best type of attorney for you in this matter.
What Happens if the Defendant Violates a New Jersey Restraining Order?
Typically, a restraining order is a civil matter in New Jersey. However, enforcing a restraining order can be a criminal matter. If the defendant violates the no contact portions of a restraining order or harasses or harms you in violation of the order, the police can enforce the FRO. If convicted of violating the FRO, the defendant will be guilty of criminal contempt of a court order and have a criminal record. See N.J.S.A. § 2C:29-9. If the defendant violates the order again, a conviction will result in a mandatory 30 days in jail. See N.J.S.A. § 2C:25-30.
If the defendant violates the financial support portions of your restraining order, you can enforce it through the family court with an order to show cause, a motion, or an affidavit. Possible civil violations of a restraining order include:
- Not following the terms of visitation
- Orders for the defendant to pay financial support
- Orders that the defendant attend domestic violence counseling
- An order that requires the defendant to make rent or mortgage payments
- A court order granting either party possession of personal property
The Best Possible Chance for Success in a Restraining Order Hearing
The best thing you can do to succeed in obtaining or defending against a New Jersey restraining order is to hire an experienced New Jersey attorney well versed in handling restraining order hearings. Attorney Joseph Lento is an experienced family attorney with years of experience helping people pursue and defend restraining orders and domestic violence charges. He can help protect your rights in family court and the restraining order process. Not all family attorneys can or will handle restraining orders, but attorney Joseph D. Lento understands how important it is to protect you, your children, and your parental rights. He can help you too. Give the Lento Law Firm a call today at 888-535-3686 or contact them online to schedule your consultation.