A restraining order is a civil court order intended to protect a victim from harassment, violence, abuse, etc. When an applicant is granted a temporary restraining order, a hearing is held where the court decides whether the implementation of a final restraining order (FRO) is warranted. In New Jersey, there are domestic violence restraining orders and sexual assault restraining orders. Domestic violence orders apply exclusively when the individuals have a current or past intimate relationship. Sexual assault orders apply when there are allegations of non-consensual sexual contact, assault or lewdness.
Because restraining orders are civil matters, the standard for proving the allegations is by a preponderance of the evidence. In many states, final restraining orders extend for a specified time period or may be subject to renewal. This is not the case in New Jersey, as a court order is required to dismiss or terminate it.
Second Chance Dismissal
According to N.J.S.A. 2C:25-29, provisions exist that allows for a “second chance” or for “forgiveness.” A final order may be “dissolved or modified” if the proper cause can be shown. Any such change is only to be made by the judge that implemented the original order. When this is not possible, another judge may do so after reviewing a “complete record” of the original hearing(s). The courts clearly addressed the requirements for a dismissal in the case of Carfagno v Carfagno (1995).
Understanding the Role of the Court
The principal goal of the court is to ensure the protection of victims in these matters; therefore, any request to terminate a FRO is heavily scrutinized. New Jersey's Protection of Domestic Violence Act (PDVA) does not allow for any automatic termination of a FRO. This places the perpetrator under an ongoing risk of criminal charges for any FRO violation and other adverse consequences associated with a FRO.
Factors Courts Consider in Determining Whether to Dismiss an Order
The Carfagno case outlined a series of 11 considerations to guide the courts regarding whether “good cause” for dismissal exists:
- The victim's opinion regarding whether the order should be lifted
- Does the victim still fear the defendant? If so, the court must determine if this fear is “objectively reasonable”
- The status of any relationship between the parties currently
- Whether there have been any violations of the order—known as contempt charges
- Any involvement with drugs and alcohol
- Any other incidents of violence committed by the perpetrator
- Whether the perpetrator completed any orders for counseling
- The perpetrator's current age and health
- The “good faith” of the victim
- Any other restraining orders against the perpetrator
- Other reasonable factors at the discretion of the court
Number of Years That Have Passed
The length of time that a FRO has been in place has a relatively minor impact on a court's decision to dismiss or not. The decision should be primarily focused on original events, any changes in circumstances since that time, and the perceived risk regarding the victim's safety.
Reconciliation Between Parties
In 1990, a trial court became aware that the parties have resumed a sexual relationship and deemed this to constitute a waiver of rights regarding the order. An appeals court disagreed and stated that reconciliation alone was not sufficient grounds for termination. In these instances, the courts are encouraged to consider the likelihood that the perpetrator may repeat their prior behavior.
Importance of Legal Representation
Individuals who are the subject of a temporary restraining order should promptly retain seasoned defense counsel to represent them in their upcoming hearing. The same applies to those who are currently subject to a final restraining order that is seeking to have the order dismissed. Your attorney may create an effective strategy that can improve the outcomes in both scenarios.
New Jersey Attorney for Restraining Orders
Attorney Joseph D. Lento has a firm understanding of how the courts in New Jersey make assessments and determinations relating to civil protection orders. For a consultation, contact the office today at (888) 535-3686.