Joseph Lento Can Aggressively Defend You Against a Restraining Order
If you are facing a hearing for a domestic violence restraining order in New Jersey, you need an experienced defense attorney by your side. While you can appeal or try to dissolve a restraining order, It is much harder to defend once the order is in place. An attorney can help present your best possible defense at the FRO hearing, hopefully dismissing the order.
Attorney Joseph D. Lento and the skilled defense team at the Lento Law Firm have been guiding New Jersey clients through restraining order hearings and appeals for years. They can help you too. Contact the Lento Law Firm today at (888) 535-3686 to set up a consultation.
Facing a Restraining Order?
If you've been notified that someone has filed a restraining order against you in New Jersey, you're undoubtedly wondering what you should do next? While New Jersey law treats those who engage in domestic violence harshly, it's important to remember that you have rights, and you're entitled to have a lawyer help you protect them. Your best chance of defeating a restraining order is with an experienced criminal defense attorney like Joseph D. Lento by your side.
What Is a Restraining Order?
New Jersey's Prevention of Domestic Violence Act works to combat domestic violence in families. The law allows victims of domestic violence to petition the court for a restraining order against an alleged abuser. A domestic violence restraining order issued by a New Jersey court can prohibit an alleged abuser from contacting or approaching an alleged victim.
New Jersey law creates two types of restraining orders for domestic violence, a temporary restraining order (TRO) and a final restraining order (FRO). Both restraining orders can prevent future violence, protect an alleged victim, provide for temporary child custody and financial support, and prevent harassment or contact between the parties. A final restraining order is permanent and will remain in place until the court lifts it.
Who Can File a Restraining Order in New Jersey?
Under New Jersey law, someone can only file a restraining order against you in New Jersey if you have a “domestic relationship.” You have a domestic relationship if you:
- Live together
- Have a current or former intimate or dating relationship
- Are current or former spouses
- Have children together
- Are immediate family members such as parents, siblings, and children
How Can I Get a Restraining Order Dismissed in New Jersey?
A petitioner can request and receive a temporary restraining order against you without your knowledge. They'll usually have an ex parte hearing before a judge, and you don't have the right to be present. However, a TRO only remains in place for about ten days until a scheduled court hearing for a final restraining order. You will receive notice of the hearing, and you have the right to attend. If you're served with a TRO and notice of a hearing for a FRO, you should attend the hearing with an attorney. This final hearing is your best chance of getting a restraining order dismissed.
To issue a FRO, the court must find that you have a qualifying domestic relationship, an act of domestic violence occurred, and that there's an urgent need for an order to prevent future domestic violence.
- Domestic Relationship: You and the petitioner have a qualifying domestic relationship if you have a current or past intimate or dating relationship, you are or once were married, you have children together, you are close family members, or you share a household.
- Act of Domestic Violence: Under New Jersey law, domestic violence includes a long list of specific crimes ranging from assault and harassment to rape and stalking.
- Urgent Need: The judge must also find the order is needed urgently to prevent future domestic violence between the parties.
If the petitioner can't prove these elements by a “preponderance of the evidence,” the judge will dismiss the restraining order. An experienced criminal defense attorney can ensure that you present the best possible defense at your final restraining order hearing.
Can I Appeal a Final Restraining Order in New Jersey?
While it's best to have a restraining order action against you dismissed before it goes into effect, you do have options after the fact. You can appeal a restraining order action, or you can later ask the court to dissolve the order.
Appealing a Restraining Order
After the court enters a final restraining order, you will have only 45 days to appeal. You must have legitimate grounds for an appeal based on the judge's misapplication of the law or mistake of fact that they relied upon to issue the order.
- Misinterpreted the Law: The judge misinterpreted or misapplied the law in some way, resulting in a flawed decision to issue a FRO against you.
- Misinterpreted the Facts: The judge misinterpreted the facts, as recorded in the hearing record, in the decision to issue the FRO.
- Misapplication of Rules: The judge misapplied the New Jersey Rules of Evidence, mistakenly allowing or excluding evidence that may have changed the FRO hearing outcome.
- Incomplete Findings: The judge's findings were incomplete in some way, excluding exculpatory evidence or not touching on all elements necessary for issuing the FRO.
Dissolving a Restraining Order
If you think that a restraining order is no longer needed, you can ask the court to dissolve the order. New Jersey law allows you to petition the court to dissolve a restraining order“upon good cause shown.” Unfortunately, the New Jersey domestic violence statute doesn't define “good cause.” As a result, we must look to New Jersey case law to determine what is “good cause” to remove a restraining order.
A 1995 New Jersey case, Carfagno v. Carfagno, sets forth the standards that a New Jersey court will consult to make this determination. The “good cause” factors include:
- Whether the petitioner consents to the removal of the restraining order
- Whether the victim still fears the defendant
- Your current relationship with the petitioner
- Whether you've violated the restraining order or have any convictions for criminal contempt of court
- Whether you've used alcohol or drugs or engaged in past violence
- Whether you've had counseling
- Your age and health
- If the petitioner is opposing the removal of the restraining order, are they acting in good faith?
- Do you have any restraining orders in other jurisdictions?
If the judge believes there is good cause to lift the order, the court may order a hearing where both parties present witnesses and evidence. The court will also order a search of New Jersey's domestic violence registry to see if you have any additional restraining orders in place against you and no pending domestic violence charges.
