If you have a restraining order against you in New Jersey, you probably already know how limiting it can be. While a restraining order isn't a criminal matter, your name and information are in the New Jersey Domestic Violence Registry, a public database searchable by anyone. A restraining order can also prohibit you from seeing your children, owning or possessing a firearm, and even from entering a home that you own or pay for.
Domestic violence is a serious matter, and restraining orders help protect domestic violence victims from further harm or harassment. However, New Jersey restraining orders don't expire after a reasonable length of time. A final restraining order can remain in place years after entry, even if the parties no longer have a relationship or need a continuing order. Fortunately, it is possible to dissolve a restraining order in New Jersey in some situations.
Domestic Violence in New Jersey
The State of New Jersey takes domestic violence seriously. That's why the legislature passed the Prevention of Domestic Violence Act of 1991. The purpose of the law is to protect victims of domestic violence from their potential abusers. See N.J. Stat. §§ 2C:25-17 - 25-35 (1991).
The Legislature finds and declares that domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all social and economic backgrounds and ethnic groups; that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence. It is therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide.
N.J. Stat. §§ 2C:25-18.
New Jersey Restraining Orders
In New Jersey, there are two types of restraining orders aimed at preventing domestic violence – the temporary (TRO) and final restraining orders (FRO).
Temporary Restraining Order
A temporary restraining order (TRO) is temporary order from the court that prevents the respondent from approaching or contacting the complainant. In some cases, the order may even order the police to remove the respondent from a shared home and confiscate any firearms the respondent owns.
A court can enter a TRO in an ex parte hearing, meaning only the complainant is present. The judge will issue the TRO if they believe it's necessary to protect your life, health, or well-being. The TRO lasts until the hearing for a final restraining order, which the court will typically schedule within ten days. See N.J.S.A. §§ 2C:25-28(a),(f); 2C:25-29a.
Final Restraining Order
A final restraining order (FRO) is a permanent order a judge puts in place after a hearing with both parties. The FRO is the permanent version of the TRO and does not expire. Before entering the order, the court will hold a final hearing where both parties can tell their sides of the story. The hearing allows both parties to present evidence and testimony in support and cross-examine witnesses, but it still follows the rules of evidence and the court. As a result, it can be difficult to successfully defend a FRO in the final hearing without an attorney.
The FRO hearing has a much higher burden than the TRO hearing. The petitioner must prove their allegations by a preponderance of the evidence. A judge will only issue a FRO if the petitioner meets all the requirements.
- The parties must have a qualified domestic relationship.
A qualified relationship includes married or dating couples, couples who were once married or dating, members of the same household, or couples who have one or more kids together.
- The defendant committed an act of domestic violence.
Many crimes under New Jersey law qualify as domestic violence, including harassment, terroristic threats, assault, sexual assault, criminal restraint, kidnapping, burglary, criminal trespass, coercion, cyber-harassment or stalking, criminal sexual contact, violating a domestic violence restraining order, or any crime involving the risk of death or serious bodily injury.
- There is an urgent need for a restraining order.
The respondent must also prove by a preponderance of the evidence that a restraining order is urgently needed to prevent additional acts of domestic violence against the petitioner.
Under New Jersey law, in deciding whether to enact the FRO, the court should also consider:
(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;
(2) The existence of immediate danger to person or property;
(3) The financial circumstances of the plaintiff and defendant;
(4) The best interests of the victim and any child;
(5) In determining custody and parenting time the protection of the victim's safety; and
(6) The existence of a verifiable order of protection from another jurisdiction.
N.J. Stat. § 2C:25-29a (2013). Final restraining orders are permanent and do not expire. A FRO will remain in place until one of the parties petitions the court to dissolve or modify the order.
After the judge enters a FRO, the police will photograph and fingerprint the defendant or respondent. The police will then enter the respondent's information into New Jersey's Domestic Violence Central Registry and a national domestic violence database. A restraining order isn't a criminal matter; it is civil. As a result, the FRO won't appear in most standard criminal background checks. However, the New Jersey domestic violence registry is a public database, and employers who do more detailed background checks may find it. No court must find you guilty of a crime before placing you in the database.
Restraining orders are also available for sexual assault victims, but they are much less common than restraining orders involving domestic violence. The New Jersey Sexual Assault Survivor Protection Act (SASPA) allows courts to issue a civil protection order to safeguard victims of sexual violence from their assaulter. The court can enter a TRO with only one party present under SASPA if the judge believes it's necessary to “protect the safety and well-being of the victim.” The judge must also find that the petitioner was the victim of non-consensual sexual contact, sexual penetration, lewdness, or an attempt at one of these. See N.J.S.A. §§ 2C:14-13, et seq. The court typically holds the hearing for a final order within ten days.
Provisions in a New Jersey FRO
In New Jersey, the judge has a lot of discretion concerning the conditions they put in a final restraining order. While all FROs will prevent the respondent from contacting or physically approaching the petitioner, the judge can include a wide variety of provisions providing financial support, housing, and physical and communication restraints.
Every restraining order is different and tailored to the needs of the petitioner, but FROs often include provisions for:
- Modifying or creating custody and visitation for shared children, as well as financial support for children or a spouse,
- Paying existing financial obligations the couple and the defendant already have, including a mortgage, rent, car payments, or insurance,
- Preventing the respondent from owning, possessing, or buying weapons, including firearms,
- The respondent to pay restitution to the complainant, and
- Counseling or therapy, including alcohol or drug counseling or domestic violence counseling.
Along with the final restraining order, the court will order the police to photograph and fingerprint the defendant. They will enter this information into New Jersey's central domestic violence registry. The defendant will also face a $500 fine, and New Jersey and federal law will then prohibit the defendant from owning or possessing a firearm.
While sexual assault restraining orders are much less common, a FRO related to sexual assault may also prohibit a wide range of behaviors, including:
- Contacting the complainant online or in person,
- Preventing stalking, online harassment, or in-person harassment,
- Coming within a certain distance of the complainant,
- Prohibiting the defendant from entering the complainant's workplace, home, school, or other places where the complainant may normally be.
Violating a New Jersey Restraining Order
While a restraining order in New Jersey is a civil rather than criminal matter, violating a restraining order is a criminal contempt of court violation. If the police know or reasonably believe you've violated a restraining order, they will arrest you, and you can go to jail. If you violate a restraining order a second time, a conviction comes with a mandatory 30-day jail sentence. Violating a New Jersey restraining order will give you a criminal record.
Dissolving a New Jersey Restraining Order
While a New Jersey restraining order does not expire, one or both parties can petition the court to dissolve or modify a restraining order. Under New Jersey law, the defendant can move the court to dissolve a restraining order “upon good cause shown.” The statute states:
Upon good cause shown, any final order may be dissolved or modified upon application to the Family Part of the Chancery Division of the Superior Court, but only if the judge who dissolves or modifies the order is the same judge who entered the order, or has available a complete record of the hearing or hearings on which the order was based.
N.J.S.A. § 2C:25-29d (2016).
Whether a court will dissolve a FRO depends on whether the defendant can show “good cause.” Because the statute doesn't define this, we look to New Jersey case law to determine what is “good cause” for a court to lift a restraining order. In Carfagno v. Carfagno, the Superior Court of New Jersey set forth the standard that New Jersey courts use today. See 288 N.J. Super. 424, 672 A.2d 751 (Ch.Div. 1995).
The Carfagno Case
In Carfagno, the restraining order at issue arose from a divorced couple where the ex-husband harassed his ex-wife by repeatedly calling and harassing her, taking her car without permission, and following her on multiple occasions. When Ms. Carfagno requested the restraining order, the court found that Mr. Carfagno committed the alleged acts of domestic violence and entered a restraining order prohibiting him from contacting his ex-wife except to discuss the welfare of their child in her custody.
Mr. Carfagno violated the restraining order twice, with the court entering convictions for contempt each time. Mr. Carfagno later applied to dissolve the restraining order under N.J.S.A. § 2C:25-29(d), arguing that:
- He hadn't violated the restraining order since his second contempt convictions,
- It was in the best interests of their child to dissolve the order,
- Both parties had inadvertently violated the restraining order,
- Ms. Carfagno no longer needed the order for protection, and
- Ms. Carfagno was opposing the request to dissolve the order in bad faith to prevent him from getting a job with a local police department.
After briefs and a hearing, the court found that Ms. Carfagno objectively feared he husband. Moreover, her fear was reasonable considering his past threats and behavior, his FRO violations, and his continued attempts to exert power and control over her. The judge also found that she opposed his motion to dissolve the FRO in good faith.
In its decision, the Carfagno court noted that the legislative history of the Prevention of Domestic Violence Act indicated that the legislature intended the Act to protect victims of domestic violence and not those accused of domestic violence:
[I]t is therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide […]. Further, it is the responsibility of the courts to protect the victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by ordering those remedies and sanctions that are available to assure the safety of the victims and the public […].
288 N.J. Super. 424 at 434. The court ultimately found that Mr. Carfagno didn't show “good cause” for the court to dissolve the final restraining order.
Carfagno Factors
In developing its conclusion in the Carfagno case, the Family Part identified many factors to determine whether the defendant has met the “good cause” standard of the New Jersey restraining order statute. The factors include:
- Whether the victim consents to the dissolution of the restraining order,
- Whether the victim still fears the defendant,
- The parties' current relationship,
- Whether the defendant has violated the restraining order or has any contempt convictions,
- Whether the defendant used alcohol or drugs or engaged in violence,
- Whether the defendant attended counseling,
- The defendant's age and health,
- Whether the victim is acting in good faith in opposing the dissolution of the restraining order,
- Whether the defendant has any restraining orders entered against them in other jurisdictions.
Before dissolving an order, the court will also order a search of the central domestic violence registry to ensure that the defendant hasn't committed any other domestic violence acts or had additional restraining orders issued against them.
Why You Should Dissolve a New Jersey Restraining Order
While a New Jersey restraining order is a civil rather than criminal matter, a FRO can still completely disrupt your life. Future employers may find your restraining order. You could face the consequences concerning custody and visitation of your children. You could face the consequences with your job, future employers, and the FRO may eliminate certain career choices for you. You could also lose your right to carry, own, or possess a firearm. The entry of a FRO against you could also affect your immigration status or citizenship application or even your ability to travel in and out of the United States. As a result, petitioning the court to dissolve a restraining order may be the best path forward for many defendants.
Employers Can Search the State Domestic Violence Registry
Employers will often run a standard criminal background report on new applicants applying for a job. A typical background check won't reveal a TRO or FRO because it's not a criminal matter. However, once a judge enters a final restraining order, the police will place your information in New Jersey's central domestic violence registry. This registry is a publicly searchable database. As a result, if your employer or potential employer runs a more in-depth background check, they may find the FRO. Because a judge must make a finding for a FRO that an act of domestic violence occurred, a FRO in the central registry discovered by an employer may have consequences to your career.
The New Jersey legislature created the domestic violence central registry for law enforcement officials and courts issuing restraining orders. Its purpose is to protect domestic violence victims from further acts of violence by ensuring that the police and courts can easily find any already existing restraining orders against a defendant. However, some jobs, such as those in the military, those requiring a security clearance, or jobs in law enforcement or the court system, will result in your employer finding out about a restraining order. Even if you only had a TRO against you and the court failed to enter a FRO, your TRO will typically still appear in the State's domestic violence registry. However, a TRO that never became a final order is probably less likely to result in the loss of a job or a job opportunity.
You Can Lose Custody of Your Children
Losing a job because of a restraining order can be frustrating and have a huge financial impact on you and your family. But if you are a parent subject to a restraining order, undoubtedly, the biggest concern is how this might affect your relationship with your children. Concern about custody and visitation after a FRO is a valid concern.
As part of the FRO, a New Jersey court may include provisions that remove you from a shared home with the complainant, even if you also share that home with your children. The court will also do this even if the home is in your name or you pay for it. Moreover, a New Jersey FRO will typically include provisions for temporary custody and visitation arrangements for any shared children, as well as financial support for those shared children.
Under New Jersey law, as part of a restraining order, the court may issue:
[a]n order providing for parenting time. The order shall protect the safety and well-being of the plaintiff and minor children and shall specify the place and frequency of parenting time. Parenting time arrangements shall not compromise any other remedy provided by the court by requiring or encouraging contact between the plaintiff and defendant. Orders for parenting time may include a designation of a place of parenting time away from the plaintiff, the participation of a third party, or supervised parenting time.
N.J.S.A. § 2C:25-29b (2013). So, while the court can ensure that the FRO enshrines visitation, a judge will typically only do so if the order also protests “the safety and well-being of the plaintiff and minor children.” Without representation, it can be difficult to ensure that the court properly considers your visitation time.
If the plaintiff has custody and you have visitation time or joint custody, upon request, New Jersey law requires the court to assess the risk of harm to the child. If the judge denies a request for this evaluation, they must do so on the record and only if the judge finds the request is “arbitrary or capricious.” Id. at § 2C:25-29b (3)(a). The plaintiff can also ask for an emergency hearing after certifying under oath that the defendant “threatened the safety and well-being of the child.” Id. at § 2C:25-29b (3)(b).
Even if a judge grants you visitation time under a restraining order, you'll be subject to heightened scrutiny by the court or child welfare agencies. And the plaintiff may drag you back into court even if the initial restraining order grants you visitation and parenting time.
You Can Lose Your Home
At the hearing for the FRO, the judge can issue an order granting the plaintiff the “exclusive possession […] of the residence or household.”
At the hearing the judge of the Family Part of the Chancery Division of the Superior Court may issue an order granting any or all of the following relief:
An order granting exclusive possession to the plaintiff of the residence or household regardless of whether the residence or household is jointly or solely owned by the parties or jointly or solely leased by the parties. This order shall not in any manner affect title or interest to any real property held by either party or both jointly. If it is not possible for the victim to remain in the residence, the court may order the defendant to pay the victim's rent at a residence other than the one previously shared by the parties if the defendant is found to have a duty to support the victim and the victim requires alternative housing
N.J.S.A. § 2C:25-29b (2013). While it won't affect the title to any home you own by yourself or jointly, a court's restraining order may force you to leave your home and continue paying for it. Alternately, the court may order you to pay the plaintiff's rent elsewhere.
You Lose Your Right to Own or Carry a Firearm
New Jersey law prohibits anyone convicted of misdemeanor domestic violence charges from owning or possessing a firearm. See N.J.S.A. § 2C:39-7b(1), (2). Even if someone is charged with domestic violence but not yet convicted of the charge, a judge can order that they be unable to own or possess a firearm. See N.J.S.A. §§ 2C:25-19; 2C:25-26a.
The same holds for those accused of domestic violence in a restraining order petition. If a court issues a restraining order against you, New Jersey law prohibits you from buying, owning, possessing, or controlling a firearm.
In proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse. In addition to any other provisions, any restraining order issued by the court shall bar the defendant from purchasing, owning, possessing or controlling a firearm and from receiving or retaining a firearms purchaser identification card or permit to purchase a handgun pursuant to N.J.S.2C:58-3 during the period in which the restraining order is in effect or two years whichever is greater, except that this provision shall not apply to any law enforcement officer while actually on duty, or to any member of the Armed Forces of the United States or member of the National Guard while actually on duty or traveling to or from an authorized place of duty.
N.J.S.A. § 2C:25-29b; 2C:58-3c(6) (2013). However, a judge can also prevent a defendant to a restraining order from buying or possessing a firearm in an ex parte hearing for a temporary restraining order. A judge could place this restriction on you even if you had no prior notice of the hearing. See N.J.S.A. § 2C:25-28f, j; 2C:25-29b.
Accordingly, anyone convicted of domestic violence crimes in a New Jersey court must immediately surrender their firearms to the police, as well as any permits to purchase guns and firearm purchase identification cards. If a New Jersey judge issues a domestic violence restraining order against you and the order prohibits you from owning or possessing guns, you must surrender all of your firearms to the police. Under New Jersey law, the prosecutor has 45 days to petition the court to take the firearms' title. See N.J. Stat. Ann. § 2C:25-21d(2), (3).
Restraining Orders Can Affect Employment
While a restraining order won't end your career under most circumstances, it can cause problems. Particularly if you work in law enforcement, are in the military, or have a security clearance.
Many employers run background checks on potential employees and periodically on current employees. A New Jersey restraining order isn't a criminal matter; it's a civil matter. Therefore, most typical background checks won't turn up a FRO. However, the New Jersey domestic violence database is available to the public and searchable. If your employer does a more detailed background check or uses an FBI background check, they will find a restraining order against you. The New Jersey Domestic Violence Central Registry contains information from all temporary and final restraining orders, including TROs, where the court declined to grant a final restraining order.
- Military Careers
While a restraining order won't affect all careers, it can impact a military career. A restraining order alone typically isn't grounds to discharge you from the military but losing the ability to carry a firearm can be a problem. New Jersey's restraining order statute makes allowances for people in the military acting in the line of duty, stating:
[T]his provision shall not apply to any law enforcement officer while actually on duty, or to any member of the Armed Forces of the United States or member of the National Guard while actually on duty or traveling to or from an authorized place of duty.
N.J.S.A. § 2C:25-29b (2013). While this provision does allow military members to use a firearm, there are also federal laws that prohibit those with a restraining order from possessing firearms. While there are exceptions for military members, these exceptions are limited, and a restraining order will still affect your career.
It's important to remember that final restraining orders don't expire in New Jersey. The FRO will remain in place until you or the plaintiff ask the court to remove or modify the order. If you petition the court to dissolve the restraining order, you'll need to show “good cause” under the Carfagno factors. You should consult an experienced criminal defense attorney well versed in dissolving restraining orders.
2. Using a Firearm on Base
Under federal law, if you have a restraining order against you may not possess a firearm even if you are on base. Under the Federal Gun Control Act of 1968, you can neither possess a firearm nor ammunition if you had a chance to participate in the hearing and a court finds:
- You were a credible threat to the physical safety of your intimate partner or child; or
- The court's order prohibits the attempt or threatened use of force “reasonably expected to cause bodily injury” against an intimate partner or child; or
- The restraining order prohibits you from harassing, stalking, threatening, or engaging in conduct that would put an intimate partner or child in “reasonable fear of bodily harm.”
See 18 U.S.C. § 922(d)(8) (2015).
This law does include an exception for military personnel that allows you to use your firearm during military duties. However, you may only possess a firearm while actively performing your military duties. See 18 U.S.C. § 930(d)(2). But this exception to federal law won't apply if:
- The restraining order specifically states that you cannot own or possess a firearm. In this case, you may not possess one, even for military duties on a military base.
- Your commanding officer determines that you should not be permitted to possess a firearm or ammunition.
While a commanding officer's decision that you can't possess a firearm or ammunition won't discharge you from the military, you can be disciplined if you violate the order. You could face an Article 15 or other disciplinary measures, including loss of pay of rank, extra work assignments, and a written reprimand. If you're in the military and face a hearing for a final restraining order, or if one is already in place, you should consult an experienced criminal defense attorney as soon as possible.
3. Security Clearances
If you have a security clearance or need one for your job, a restraining order against you can become a problem. When you complete your SF-86 form, the questionnaire for national security positions, you'll need to report a restraining order against you, whether it is temporary or final.
Section 22.3 of the form asks, “Is there currently a domestic violence protective order or restraining order issued against you?” If you have a criminal restraining order against you, you will report this here. However, restraining orders in New Jersey are civil orders. If you are the plaintiff to a restraining order or a defendant to a civil restraining order, you report it in section 28. This section asks, “Have you been a party to any public record civil court action not listed elsewhere on this form?”
The context of your restraining order and the facts leading to the order may determine whether or not a restraining order prevent you from obtaining a security clearance. While it's impossible to predict the results, it's best to consult a New Jersey criminal defense attorney to determine your best path forward.
Restraining Order Can Affect Immigration
A final restraining order in New Jersey can also affect your immigration status. The government can deport those convicted of a crime of “moral turpitude,” drug-related offenses, aggravated felonies, firearms violations, or domestic violence-related crimes. Violating a protective order can also jeopardize your immigration status.
Restraining orders in New Jersey are civil violations but violating the terms of a temporary or final restraining order is a criminal violation. If the police have a credible allegation that you violated a restraining order against you, the law obligates the police to arrest you. Violating a restraining order, even accidentally, could lead to deportation.
1. Green Card Application
A crime of “moral turpitude,” which is a criminal conviction for a crime against another person, can be grounds for removal from the United States and can also prohibit you from entering the U.S. Domestic violence crimes are considered crimes of “moral turpitude.” However, a final restraining order is a civil offense in New Jersey, not a criminal offense.
Violating a restraining order, however, is a criminal offense and can affect your green card application. If the police believe the plaintiff has a credible allegation that you violated the order's terms, the police must arrest you. The Immigration and Nationality Act states:
Any alien who at any time after entry is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is deportable. For purposes of this clause, the term “protection order” means injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a pendente lite order in another proceeding.
See 8 U.S.C. § 1227 (a)(2)(E)(ii) (2008). If your green card application is pending, and you're facing a restraining order hearing, or you already have a restraining order against you, you should consult a criminal defense attorney as soon as possible.
2. Citizenship Application
If you have a pending application for citizenship in the U.S., any criminal conviction, especially one for a crime of “moral turpitude,” can after your application and lead to deportation. A New Jersey restraining order is a civil rather than criminal matter, but it can still affect your application. While a civil order alone won't necessarily lead to your deportation, it can prevent you from establishing “good moral character.” As part of the naturalization process, you must establish good moral character, and a restraining order could affect your ability to become a naturalized citizen.
Moreover, violating a restraining order is a criminal offense in New Jersey. If convicted, you could face deportation. Violating a restraining order is a fourth-degree offense in New Jersey and could result in up to 18 months in jail. If you're in the middle of the naturalization process and face a restraining order or already have one against you, you should consult an experienced New Jersey criminal defense attorney as soon as possible.
Have a Restraining Order Against You? Contact the Lento Law Firm Today
If you have a restraining order against you, the consequences can be lasting. But it is possible to have a restraining order dissolved in some circumstances. While the best time to retain a criminal defense attorney is before a restraining order hearing, it's still possible to receive relief once an order is in place. An experienced New Jersey criminal defense attorney like Joseph D. Lento can help. Contact the Lento Law Firm today at (888) 535-3686 for a consultation.
