Can a Same-Sex Partner Be Served With a Restraining Order?

If you're in a same-sex relationship, it's important you understand how restraining orders (ROs) work if you need legal protection or you're served with an order. In New Jersey, the applicable laws treat all individuals equally no matter whether they're in a same-sex or opposite-sex relationship. However, you may have your own concerns about getting a RO or defending one – especially if your sexuality is a private and confidential matter to you.

To help you understand what to expect from the process, here's how ROs work in same-sex relationships and how they are served on perpetrators.

What Is a Restraining Order?

ROs are civil protective orders. They protect victims of violence and sexual harm from further danger by preventing the perpetrator from behaving in a certain way. For example, ROs can stop a person from contacting the victim, harassing, or stalking them, visiting them at work or school, or touching them in any way. ROs are legally enforceable, and breaching them can lead to serious consequences for anyone subject to an order.

Temporary vs. Final ROs

In NJ, there are two main types of ROs: temporary restraining orders (TROs) and final restraining orders (FROs).

  • TROs are issued on an emergency basis to protect a victim of abuse or violence from harm until the court can arrange a formal hearing between both parties.
  • FROs are issued following a court hearing, and they remain in place until they're terminated or modified by the court.

You can't obtain an FRO without getting a TRO. This is to ensure that the defendant has a fair chance to defend themselves against the allegations.

Consequences of a RO in NJ

ROs carry serious consequences. Depending on the terms of the RO, a defendant could be prevented from:

  • being within a certain vicinity of the victim
  • contacting the victim in any way, e.g., by text, phone, or social media
  • returning home (even if their name is on the mortgage or lease)
  • visiting or contacting their children

Even a temporary restraining order can severely impact a person's life, especially if they share a home with their partner or have joint custody over a child.

Are Restraining Orders Civil or Criminal?

ROs are civil orders, not criminal. Any criminal charges associated with a domestic violence incident are entirely separate from the civil case.

Being served with a RO does not mean you're charged with a criminal offense, and it won't itself lead to criminal charges unless you violate the order.

Who Can Get a Restraining Order?

Not everyone can apply for a RO in New Jersey. Under the New Jersey Statutes (N.J.S.A. 2C:25-19) a person can usually only apply for a RO if they meet the definition of a domestic violence victim. To be considered a domestic violence victim, you must be:

  • aged 18 or over (or an emancipated minor)
  • a victim of certain criminal offenses (including assault, sexual assault, stalking, and harassment)
  • the perpetrator must be someone you have a qualifying domestic relationship with (e.g., a spouse, partner, ex-spouse, or ex-partner)

So, if you have a romantic or sexual relationship with someone, and one party commits an act of domestic violence against the other, then the victim can seek a protective order against the perpetrator to protect them from further harm.

If a person can't file for a RO under the domestic violence provisions because they don't have a qualifying relationship with the alleged perpetrator, then they can file for a RO under the Sexual Assault Survivor Protection Act (SASPA) instead.

ROs and Same-Sex Couples

New Jersey recognizes and respects the rights of individuals to enter same-sex relationships. Same-sex marriages and civil unions are legally recognized, and they're afforded the same legal protections as heterosexual marriages.

You are protected by domestic violence laws regardless of your gender, sexual orientation, or sexual preferences. If you're dating a member of the same sex, or you're living with a same-sex partner (cohabiting), you're also protected by the NJ domestic violence laws.

To be clear, the laws extend to prior relationships, too. So, someone can commit an act of domestic violence against someone they once dated – victims can still rely on the domestic violence laws if they can show that they once had a relationship.

Does It Matter if We're Married or in a Civil Union?

No – so long as there's a qualifying domestic relationship between both parties, it doesn't matter if you are married or in a civil union. You are afforded the same legal rights as couples of the opposite sex. If you are a victim of domestic violence in a same-sex relationship, you can file for a restraining order no matter what your current legal relationship status is.

What Is the Process for Obtaining a RO in New Jersey?

Same-sex couples are protected in NJ. So, the process for obtaining an RO in NJ is the same, irrespective of your sexuality.

  • One party applies for a TRO ex parte, meaning that the judge only hears the applicant's side of the story before deciding whether to grant the order.
  • If the judge deems a TRO necessary, they'll grant the order and set a FRO hearing for 10 days time.
  • At the FRO, the judge hears evidence from both sides. They will grant the FRO if there's a domestic relationship, the defendant committed an act of domestic violence, and the order is necessary to protect the victim from further harm.

When Do ROs Take Effect?

Both TROs and FROs take effect from the moment the judge awards them. The difference is that TROs expire after the TRO hearing (either because the case is dismissed or the judge grants a FRO), whereas FROs remain in force permanently unless they're appealed or modified.

How are ROs Served in New Jersey?

Unless the defendant is already in custody, the police will serve the TRO at the defendant's place of residence.

  • If the defendant and the applicant live together, the defendant will be expected to vacate immediately.
  • The police can arrest the defendant if they're aggressive or uncooperative.
  • Police will inform the relevant family court if they can't serve the TRO on the defendant e.g., they can't be located.

If you're served with a TRO, it should include the date of the final restraining order hearing. You should call Joseph Lento and his Criminal Defense Team as soon as possible to discuss your options.

What Happens After a Restraining Order Is Served?

The TRO or FRO comes into effect immediately, and so it depends on the exact terms of the order. For example, the defendant may be arrested or expected to relinquish their firearms, or they could be prohibited from contacting the defendant.

From the moment the judge grants the order, you could face criminal charges for violating its terms. Various defenses may be available, though, depending on the facts of your case, so the Lento Law Firm will be happy to talk through your options.

Can I Stay in the Home We Share?

Even if you own or co-own the home you share with the applicant, you must usually leave the property while the RO is in force. This is because a RO will normally prohibit you from visiting the victim's home or being within a certain proximity to them. You may still be expected to pay the rent or mortgage on the property, even if you're no longer living there.

Can I See Our Children?

A RO may stop you from seeing or contacting your child, depending on the facts of the case. However, if you're allowed to see or visit your child, you will often need a friend, family member, or another individual to facilitate this. You will be unable to contact the applicant to arrange any meetings, e.g., dates and times.

If your sexuality is a private matter, it's especially important that you choose a trusted person to support you here. Choose someone you feel comfortable with and who you believe will remain discreet.

If there's a custody case ongoing, then a FRO could impact the outcome of the case, depending on the victim's allegations. They may also impact your chances of fostering or adopting a child – the Lento Law Firm can explain the possible consequences as they relate to your case.

Where Can ROs Stop Me From Going?

TROs and FROS can adversely affect the defendant, especially if they move in the same social or professional circles as their partner.

For example, if the defendant must stay a certain distance away from the applicant and/or their children, then a restraining order can stop them from attending significant gatherings, such as weddings, funerals, and birthday parties. They may also be required to change working arrangements if, for example, they're co-workers in a shared office space or they work the same shift patterns.

If the defendant shares a home with their partner, then there's also an issue of returning to the shared property. In many cases, the order will prevent a defendant from visiting the alleged victim's home, which could mean they're unable to return to their own home.

What Happens if the RO Is Violated?

It's a criminal offense to breach a TRO or FRO. If a person violates an RO, even accidentally, they could be arrested and face criminal contempt charges. It doesn't matter if the breach is very small – such as sending a non-threatening message on social media – if it contravenes the order, it's considered an offense.

Do I Need to Tell Anyone About the RO?

You don't necessarily need to inform anyone about a TRO or FRO against you. It's also not necessary to reveal your sexuality or sexual preferences just because there's a RO in place.

Civil orders, like restraining orders, are not included in regular background checks, so they're not public record. So, if you're concerned about anyone treating you differently due to a restraining order, it's not something you're obliged to share with everyone.

However, you may need to inform certain people depending on your circumstances. For example, you may be required to inform your employer if you need to change your working patterns to avoid being in contact with the applicant. It may also be relevant if you're applying for certain jobs e.g. if you want to work in law enforcement.

Are Other Types of Orders Available?

Victims of domestic violence may not be comfortable applying for a RO. In some cases, it may be possible to enter a civil restraints agreement instead.

A civil restraints agreement is an agreement between two parties in a romantic relationship. Both parties agree to avoid harassing or harming each other, and either party can file a motion with the court if the other person violates the agreement. There's no formal punishment for breaking the agreement – the penalty is at the court's discretion.

Civil restraints may be considered if a final restraining order would be unduly harmful or disproportionate to the family unit. These agreements are more flexible than ROs, and they don't negatively impact the defendant's life to the same extent. They can also make it easier for one or both parties to keep their sexuality a secret, as there's no chance of a public FRO hearing. This may be a determining factor in whether an applicant seeks civil restraints rather than an FRO, depending on whether their sexuality is public or not.

Civil restraints still protect the applicant by preventing the defendant from taking certain actions like contacting them, touching them, or visiting them at work. They're just less strict, or severe, than FROs.

Are TRO Hearings Public?

TROs are issued ex parte, meaning the judge hears from only one party (the applicant) before deciding whether to grant the order. These hearings usually take place in private, especially if it's an emergency. In some cases, they may even take place remotely, such as by telephone. This may be of some reassurance to you if you have concerns about revealing your sexuality in public.

Are FRO Hearings Public?

Typically, yes. Under the NJ Rules of Court, all hearings, including FRO hearings, are held in public unless there's a compelling reason to make the hearing private (N.J. Ct. R. 1:2-1(a)).

If your sexuality is a private matter, you may have concerns about the FRO hearing taking place in open court. The Lento Law Firm can advise whether you have grounds for requesting a private hearing based on the unique facts of your case.

What Happens if the FRO is Dismissed?

Courts won't always grant FROs. If there's insufficient evidence to show that the order is necessary to protect the alleged victim from the defendant, then the court may dismiss the applicant's request for a FRO. The alleged victim can make a new application if they disagree with the judge's decision; however, in the meantime, the TRO expires.

Are you concerned about having your name associated with a TRO? This is completely understandable. Although a TRO will not appear on background checks, it's often possible to have the TRO removed from police, court, and law enforcement records. Joseph Lento and the Criminal Defense Team can explain how the process of TRO expungement works and if it's applicable in your case.

Can FROs Be Appealed?

Yes. Defendants can appeal a FRO in New Jersey within 45 days of the FRO hearing. You will need sufficient grounds for appealing an FRO – here are some examples.

  • The judge misinterpreted the law in some way. For example, they found that the defendant assaulted the alleged victim, but only because they read the law incorrectly.
  • When the judge granted the FRO, they did not clearly explain their reasons for doing so, which means their findings are incomplete or inconclusive.
  • The FRO is unfair because the judge misinterpreted the facts of the case to the defendant's detriment.
  • The judge made a procedural error; for example, they admitted evidence that should have been dismissed.

Joseph Lento and his Criminal Defense Team can determine which grounds may be open to you based on the judge's findings.

Can FROs Be Changed or Terminated?

Yes – either party can apply to the court to have a FRO modified or ended. Unless the FRO is changed or canceled, it remains in force indefinitely.

The application process varies depending on whether you are the applicant or defendant in the original complaint.

  • Applicants can ask the court to modify or vacate (end) the order because it's disproportionate or no longer required.
  • Defendants, on the other hand, can either appeal the FRO if they're within the timeframe or, beyond this timeframe, they can ask the court to reconsider the FRO if their circumstances change.

The Lento Law Firm can explain what options are available based on the facts of your case.

What if We Reconcile?

It's not uncommon for couples to reconcile even after one party files for a restraining order. However, if there's a restraining order in force against you, then you should not have any contact with your partner until the restraining order is modified or ended.

If your partner attempts to see you or contact you, do not respond – even if they propose a reconciliation. Instead, seek legal advice about how to proceed. It's also helpful to retain any evidence of the other party initiating contact, as this may be helpful in supporting your case if the applicant accuses you of harassing or stalking them.

Will a Restraining Order Show on Background Checks?

Restraining orders are civil orders, so they won't show up on regular criminal background checks unless you're arrested for a RO violation (which is a criminal offense).

However, if you're subject to a restraining order, your details are entered into the Domestic Violence Central Registry. This database is confidential, but it may be accessed by law enforcement, the court, and the Division of Child Protection and Permanency (DCP&P). So, the RO will show if, for example, you wish to adopt or foster a child, or you're looking for a job in certain professions, e.g., social work.

Ordinary members of the public, including potential employers, should normally have no access to the Registry (New Jersey Stat. Title 2C:25-34).

Is There Any Way to Challenge a RO Without Revealing My Sexuality?

If you're accused of domestic violence, the applicant completes a four-page form that includes some basic information about you, including your gender, age, and your relationship with the applicant. There are no sections requiring the applicant to specify their sexuality or sexual orientation. However, your sexuality may be inferred from the nature of the complaint, the allegations made, and the relief sought by the applicant.

At the Lento Law Firm, Joseph Lento and his Criminal Defense Team understand that your sexuality may be a sensitive and confidential matter. However, you deserve the chance to defend yourself properly against these allegations. We urge you to contact us to discuss how to defend domestic abuse allegations – we will protect your privacy and confidentiality as far as possible, and we will explain how the process works based on the facts of your case.

How the Lento Law Firm Can Help

If there's a restraining order issued against you, it's vital that you get urgent legal advice to explore your options and determine the best way forward.

Any restraining order has the potential to severely impact your professional and personal life, and you deserve a fair chance to defend yourself against the allegations. You must also understand precisely how the RO works, or else you may accidentally breach its terms – which means you risk facing criminal charges.

Joseph Lento and the Criminal Defense Team understand how to challenge ROs in New Jersey. We will evaluate the evidence, determine which defenses may be open to you, and help you achieve the most favorable outcome in the circumstances. We will treat you with the compassion and respect you deserve – call the Lento Law Firm now at 888.535.3686 or leave a message to arrange a consultation.

​​​Contact The Lento Law Firm Today

When it comes to criminal defense cases, you need the right person in your corner. To learn more about how Mr. Lento can help you, call the Lento Law Firm today at 888-535-3686. or contact him online.

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