A restraining order can be a powerful, effective, and necessary tool to protect an individual from someone who wishes them harm or wants to harass them. If the alleged abuser violates the instruction of this order, he or she may face serious consequences. But not everyone who seeks a restraining order does so with pure intentions. Some people use restraining orders as a way to manipulate the system and tip the scales of justice in their favor, leaving the defendant to face false allegations and the ramifications that accompany them.
The ease with which someone can get a restraining order against you depends on the type of restraining order.
Civil or Criminal?
In New Jersey, restraining orders are issued by both criminal and civil courts. Criminal restraining orders typically involve situations when a crime – such as assault or harassment – has occurred. In these situations, the defendant may be arrested and jailed in order to protect the victim from danger.
Civil restraining orders are often issued in domestic violence situations where the applicant is not in immediate fear for his or her safety and does not need the defendant to be jailed but is seeking some other form of relief. The applicant will have to provide some evidence, but only enough to show that more likely than not, he or she has reasonable cause for concern.
Temporary or Final?
When a restraining order is issued by a New Jersey civil court, it will be either temporary or final, and the standards for obtaining a restraining order depend on which type it is. It is relatively easy to get a temporary civil restraining order. A judge needs only to believe that the victim is warranted in saying he or she fears violence from the defendant.
However, when a judge is deciding on a final restraining order, the standards are much higher. The hearing for a final restraining order must be held within ten days of the issuance of the temporary order, and the judge will require evidence that the alleged abuse occurred. But, even with the requirement of evidence, the standard of proof for a final restraining order in a civil case is still lower than the requirement in a criminal case.
Criminal Restraining Order
Because the justice system takes criminal offenses very seriously, it is much more difficult for someone to get a restraining order issued by a criminal court. In criminal court, the legal standard is “beyond a reasonable doubt.” This means that the applicant must show, beyond a reasonable doubt, that the defendant represents a threat.
The applicant will need to present evidence that includes details of the incident that led to filing for the restraining order, and the applicant may provide witnesses. Documentary evidence is likely to include threatening recordings, text messages, emails, or letters. The defendant's attorney and the judge will be able to question the defendant, the applicant, and any witnesses.
The judge will make a decision based on the testimony given, all the evidence presented, and on information such as whether there is a previous history of domestic violence. If the judge issues a restraining order, it can include prohibiting the defendant from contacting or harassing the applicant, and it can stipulate custody of any minor children, temporary possession of personal property, and a prohibition against weapon possession. While this can be a godsend for true victims who need protection, it can be a nightmare for individuals who are wrongly accused.
Lives & Reputations Destroyed
When a restraining order is issued based on false accusations, an innocent person can suffer greatly. He or she may have to relocate, change his or her daily activities to avoid the victim, and lose precious time with his or her children. Having this restraining order on file can also damage an innocent person's reputation and may implicate him or her in future crimes simply because they are perceived as being violent.
If you are at risk of being falsely accused of domestic violence, you should seek advice from an experienced lawyer who knows how to protect your rights and your reputation. Call attorney Joseph D. Lento and the Lento Law Firm today at 888-535-3686.