The state of New Jersey believes that domestic violence — including incidents of choking or strangulation — is an offense against the whole of society. It is an offense that not only causes victims to suffer but also affects children and family members in many ways. As a result, New Jersey intends to give victims of domestic abuse the maximum protections available under the law. One of these protections is a restraining order, which is a court order directing an abuser to stay away from their victim. Obviously, this is an important tool to protect victims of abuse from further harm. The person who is the subject of the restraining order, whether rightfully or wrongly accused, will face serious consequences. A restraining order can impact employment, child custody, living arrangements, and other aspects of everyday life. That's why it's important to seek legal advice if you believe you will be, or are, the subject of a restraining order in a domestic violence case.
Everyone deserves justice, so if you are facing the possible imposition of a restraining order against you in New Jersey, you need a skilled and knowledgeable attorney at your side. The Lento Law Firm and its Criminal Defense Team can supply that attorney. Reach out to us by calling 888-535-3686 or using this online form to tell us about your case.
The firm knows what to do when someone finds themselves involved in allegations of domestic abuse and a restraining order is looming. An attorney from the Lento Law Firm is ready to hear your side of the story, explain the legal process, and work with you to achieve the best possible outcome. Do not try to handle the matter on your own since there is too much at risk. Your job, your reputation, and your child custody arrangement may be in jeopardy. The Lento Law Firm can help, regardless of your location in New Jersey. From Asbury Park to Gladstone to Lambertville to Red Bank, the Lento Law Firm is all set to help you.
Choking and Strangulation as Domestic Abuse in New Jersey
In New Jersey, domestic abuse cases involve the state's Code of Criminal Justice as well as the affiliated Prevention of Domestic Violence Act. Under the PDVA, domestic violence involves the occurrence of certain offenses, which include, but are not limited to:
- Assault;
- Burglary;
- Criminal coercion;
- Criminal mischief;
- Criminal restraint;
- Criminal sexual contact;
- Criminal trespass;
- Cyber-harassment;
- False imprisonment;
- Harassment;
- Homicide;
- Kidnapping;
- Lewdness;
- Sexual assault;
- Stalking; and
- Terroristic threats.
To be considered domestic violence, one of the statutorily listed acts must be committed by an adult or emancipated minor and inflicted upon a person who falls under the protection of the PDVA. Protected persons include anyone 18 years of age or older or an emancipated minor who has been subjected to domestic abuse by a spouse, ex-spouse, or any other individual who is a current or previous household member. The protected class of persons also includes anyone, regardless of age, who has endured domestic violence by an individual with whom they have a child or with whom they will have a child if one of the parties is pregnant. Further, the protections extend to anyone who has faced domestic abuse by an individual with whom they have, or had, a dating relationship.
As mentioned above, assault is one of the predicate or underlying acts of domestic violence in New Jersey. The state has a broad definition of assault that encompasses a number of illegal activities. In New Jersey, the law considers assault to be either simple or aggravated. Simple assault involves an attempt to cause, or purposely, knowingly, or recklessly cause, bodily injury to another person. Simple assault is also defined as negligently causing bodily injury with a deadly weapon and as attempting, by being physically menacing, to put someone in fear of imminent serious bodily injury.
Aggravated assault covers an even wider range of unlawful behavior. In general, aggravated assault is defined as attempting to cause serious bodily injury to another person, purposely or knowingly causing injury, or recklessly causing injury under circumstances demonstrating extreme indifference to the value of human life. New Jersey also says aggravated assault occurs when someone attempts to cause, or purposely or knowingly causes, bodily injury to an individual with a deadly weapon or recklessly causes bodily injury to someone with a deadly weapon.
Further, New Jersey law says aggravated assault includes the acts of choking and strangulation when perpetrated against an individual who falls within the law's domestic violence protections. Specifically, an aggravated assault occurs when someone knowingly, or under the circumstances showing extreme indifference to the value of human life, recklessly obstructs the breathing or blood circulation of a person by putting pressure on the throat or neck or by blocking the nose or mouth, thereby causing, or attempting to cause bodily injury.
Restraining Orders in New Jersey
If your spouse, ex-spouse, romantic partner, or another individual in the protected class of persons accuses you of choking or strangling them, you may be facing a restraining order. There are two kinds of restraining orders in New Jersey. The first is a temporary restraining order (TRO), and the second is a final restraining order (FRO). These orders are civil court orders. In some situations, a domestic violence incident may result in criminal charges, but a restraining order is a civil matter. However, if someone violates a restraining order, that violation is a criminal offense.
Temporary Restraining Orders in New Jersey
When law enforcement responds to a call about possible domestic violence, officers are required to give the victim a special notice regarding a TRO. The notice tells the victim that they have the right to go to court to get a TRO to protect themselves from further abuse. The notice also says that a judge who issues a TRO can include a variety of terms in the order. The TRO can include any of the following terms, for example:
- Allowing the attacker to retrieve personal belongings from the home with police supervision;
- Temporarily forbidding the attacker from entering the victim's home;
- Temporarily forbidding the attacker from contacting the victim and their relatives;
- Temporarily forbidding the attacker from contacting the victim at their job;
- Forbidding the attacker from possessing a firearm or weapon;
- Ordering seizure of a firearm or weapon;
- Directing the attacker to pay temporary child support or support for the victim;
- Giving the victim temporary custody of the children; and
- Directing the attacker to repay the victim for any medical treatment or property repairs.
The notice also states that the victim has the right to obtain a TRO even if it is a holiday, weekend, or other time when the courts are closed. Lastly, the notice advises the victim that they have the right to file a criminal complaint and have charges pressed against the attacker. Note, however, that a domestic violence victim can get a TRO even if law enforcement did not respond to the incident.
The court system issues a TRO when it is necessary, on an emergency basis, to protect the life, health, or well-being of the victim. Since the court issues the order on an emergency basis, the defendant does not have the opportunity to contest the TRO. That opportunity arises several days later, as discussed below. When the court issues a TRO, the order is valid throughout the state of New Jersey. The court serves the TRO on the defendant/attacker, and a copy also goes to the municipality police where the victim lives and to any other relevant law enforcement agencies. It is extremely important to cooperate with law enforcement if you are served with a TRO. The best thing to do is stay calm and call the Lento Law Firm and its Criminal Defense Team. They will make sure your rights are observed.
Final Restraining Orders in New Jersey
A TRO usually stays in effect for 10 days, at which time there will be a court hearing for a FRO. The court will notify the defendant of the hearing, and the defendant has the chance to participate and present their case. The victim will also present their case. Note that if there is a criminal case against the defendant, testimony from the FRO hearing is usually not admissible in the criminal case. Since the FRO hearing gives a defendant the opportunity to contest the issuance of a final order, it is always a good idea to have a lawyer present. The Lento Law Firm is well-versed when it comes to FRO hearings in New Jersey, and they will protect your interests.
At the FRO hearing, the court will determine whether the allegations against the defendant have been proven by a preponderance of evidence. The court can consider these factors, among others:
- Any prior history of domestic violence between the victim and the defendant;
- The existence of immediate danger to person or property;
- Both parties' financial circumstances;
- The best interests of the victim and any children;
- The existence of an order of protection from another jurisdiction; and
- The victim's safety when determining child custody and parenting time.
When deciding to issue a FRO, the court can grant any relief that is necessary to prevent further abuse. In New Jersey, any FRO that is issued must ban the defendant from purchasing, owning, possessing, or controlling a firearm during the time period when the restraining order is in effect or for two years, whichever period is greater. The order must also direct the defendant to immediately turn over any firearms or other weapons.
Further, the court can order the following types of relief in a FRO:
- Stopping the defendant from subjecting the victim to domestic violence;
- Granting exclusive possession of a residence to the victim;
- Providing for parenting time and specifying a place away from the victim, the possible participation of a third party, or a supervised visit;
- Requiring the defendant to pay the victim monetary compensation for losses suffered as a direct result of domestic violence;
- Requiring the defendant to receive domestic violence counseling;
- Requiring the defendant to undergo a psychiatric evaluation;
- Preventing the defendant from entering the victim's home, property, school, or job;
- Preventing the defendant from contacting the victim; and
- Awarding temporary custody of minor children.
As you can see, when a court issues an FRO against an individual, there are serious repercussions that can affect every aspect of life. There can be social repercussions as well since a defendant may be ostracized by friends, family, and neighbors. In addition, a defendant may lose a job or a professional license once they are the subject of a FRO. Further, if someone violates a FRO in New Jersey, they will be arrested and face criminal charges.
Retain the Lento Law Firm if You Are Accused of Domestic Abuse Involving Choking or Strangling in New Jersey
When a domestic abuse situation arises, the chances that a victim will apply for a TRO and a FRO are high. When a domestic abuse incident involves choking or strangulation, that incident is an aggravated assault in New Jersey. That means the stakes are even higher. Victims of domestic abuse must be protected, and that is the job of the court system, of course. But, at the same time, the legal rights of an individual who is accused of perpetrating domestic violence must be protected. The Lento Law Firm believes that everyone deserves the chance to travel through the judicial system with their rights safeguarded. If you think you will be the subject of a TRO or FRO, do not hesitate to seek legal representation. Time is of the essence. The Lento Law Firm and its Criminal Defense Team have the experience you need when there is the possibility that a restraining order will be issued against you. The Lento Law Firm can assist you no matter where you are in New Jersey. The firm can come to your aid if you are in Fanwood, Hoboken, Mendham, Sea Girt, or any other municipality in the state. There is a lot at stake when a restraining order comes down, so it's always a good idea to have an experienced attorney in your corner. Get in touch with us by calling 888-535-3686 or filling out this online form to contact us.
