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If you have questions about restraining orders, then it is important that you speak to an experienced attorney right away. We'll help you understand the restraining order process and effectively prepare and present your restraining order case. Attorney Joseph D. Lento and his team at the Lento Law Firm help clients overcome the challenges associated with restraining orders day in and day out throughout New Jersey. To learn why the Lento Law Firm is the right decision to help you with a restraining order, call us at 888-535-3686 or contact us online.
If someone feels threatened or fears for their safety in New Jersey, then they may be able to get a restraining order against the person causing the threat. Restraining orders are legal under the Prevention of Domestic Violence Act.
If you've had a restraining order filed against you, it's critical that you act carefully. The limitations that are placed on your life might not be totally clear yet. Violating the provisions of a restraining order can lead to serious consequences, including criminal prosecution. If you have legal questions regarding restraining orders, then it is important to speak to an experienced criminal defense attorney.
What Is a Restraining Order?
A restraining order is a court order that can restrict a defendant from contacting or coming within a certain distance of a plaintiff for a specified duration of time. The order is a preventative measure to protect plaintiffs from any ensuing acts of violence. Oftentimes, restraining orders not only call for no contact with the protected party, but they limit the defendant's interactions with the plaintiff's family, friends, acquaintances, roommates, and/or other relevant persons. These orders also bar the defendant from going to the workplace or residence of the plaintiff, even if both parties share these areas. It doesn't matter if the defendant lives in the same residence as the plaintiff. If an order is imposed, he or she will be required to move out.
It's important to note that restraining orders are court documents and do not expire if the parties involved reconcile. These orders are definite for the specified duration of time designated in the order, regardless of the circumstances. This means that even if a plaintiff and defendant willingly meet or interact while the order is in place, the defendant may still face criminal charges. A restraining order will remain in place until a judge lifts the order.
What Are the Grounds for a Restraining Order?
A restraining order can be granted on several different grounds. If the allegations are regarding sexual assault, then a restraining order can be granted under the Sexual Assault Survivors Protection Act (SASPA). Under SASPA, anyone making a sexual assault claim can petition the court for a protective order outside of any criminal proceedings. Prior to SASPA, New Jersey sexual assault claimants could only obtain a protective order if they were in a “qualified domestic relationship” with their alleged assailant. This left filing criminal charges as the main option to obtain protective orders. When someone is facing criminal charges, the presiding judge can set rules and conditions on the defendant to protect the alleged victim.
A restraining order can be obtained whether an alleged assailant is a stranger, or someone known to the alleged victim. If a judge grants a restraining order, then it will limit the defendant's freedom in several ways, namely forbidding any contact with the petitioner. If the petitioner only wants a no-contact order, then this can be accomplished with a restraining order. Filing criminal charges is not required if a restraining order is sought. Getting a no-contact order through a restraining order is an intermediary option that may appeal to some petitioners because of the lower standards of proof and the ability to avoid an in-depth criminal investigation.
Restraining order requests must be made in the local county court. Restraining order petitions must include a detailed explanation of what happened, making sure to include details such as the date, time, and location of the alleged incident. Restraining orders can be granted for the following types of alleged conduct:
- Assault
- Harassment
- Stalking
- Sexual assault
- Threats
- Kidnapping
- False imprisonment
A judge must find that assaultive behavior is present under the categories of sexual assault or domestic violence to grant a restraining order. If the judge feels a restraining order is necessary to protect the petitioner from the defendant, then the judge will likely grant a restraining order.
Who May Seek a Restraining Order in New Jersey?
New Jersey law generally gives those alleging domestic violence the right to seek a restraining order. Temporary restraining orders may be granted more easily as judges may tend to err on the side of caution. To be considered a “victim of domestic violence” under New Jersey law, an individual must be
- At least 18 years of age (or an emancipated minor) who has been assaulted by a spouse, ex-spouse, or any current or former roommates or housemates
- Someone who has been assaulted by someone they share a child with or anticipate sharing a child with
- Someone who has been assaulted by a dating partner
New Jersey law allows for someone to apply for a temporary restraining order if he or she is the alleged victim of sexual misconduct. Sexual misconduct includes rape, sexual assault, attempted rape, sexual assault, and lewdness.
New Jersey allows for someone to apply for a temporary restraining order if he or she is being stalked. A restraining order involving a stalking accusation can be made permanent if the defendant is later convicted of stalking.
THERE ARE TWO TYPES OF RESTRAINING ORDERS:
- TEMPORARY RESTRAINING ORDERS
- FINAL RESTRAINING ORDERS
Temporary Restraining Orders (TROs)
Temporary restraining orders, known as TROs, are ordered to temporarily protect a plaintiff of domestic violence from their alleged abuser. TROs are filed as a result of a domestic violence complaint made with the court or local police department. Once a TRO is requested, a superior court judge will hear the petitioner's side of events and will determine if a TRO is necessary to protect the petitioner until a final restraining order hearing can take place to decide more permanent measures.
If a judge grants a TRO, then local law enforcement will serve the TRO on the defendant along with a final restraining order hearing date. A final restraining order hearing is typically set within ten days after the TRO has been issued. If the defendant owns a firearm, then he or she must turn over the firearm as soon as the TRO is served. TROs are legally enforceable until a judge removes, extends, or replaces them with a final restraining order.
Four Steps to Follow If a TRO Is Ordered Against You
If a TRO is ordered against you, then your behavior over the next ten or so days is critically important. It is important that you follow the appropriate steps if a TRO is ordered against you, including the following four steps:
Step 1: Retain an experienced attorney to oversee your case
Your first step after being served with a TRO is to hire an experienced attorney. An experienced attorney will help you understand the process and how you can fight your case. An experienced attorney can help you in many ways in your TRO case, including:
- Allowing you to focus on your daily responsibilities
- Preventing you from violating your TRO
- Preparing an effective defensive in your upcoming FRO hearing
- Getting a favorable ruling in your FRO hearing
Once you have retained an experienced attorney, then your focus should be on how to avoid the consequences of your TRO and a potential final restraining order.
Step 2: Mind the conditions of your TRO
If you have been served with a TRO, then it is critical to follow its provisions. Any alleged violation of the TRO can severely harm your case in front of the judge when deciding whether to grant a final restraining order.
Under New Jersey law, a judge can set several types of conditions in a TRO, including:
- Forbidding the defendant from having any contact with the petitioner
- Forbidding the defendant from possessing any firearms
- Forbidding the defendant from having any contact with his kids
- Requiring the defendant to pay child support
- Forbidding the defendant from going to or living in certain locations
Temporary restraining orders are not as in-depth as final restraining orders due to their temporary nature. Since TROs are only generally active for ten days, their restrictions are painted with a broad brush. Don't expect a TRO to contain permanent custody or financial supports orders. Those are generally determined at a final restraining order hearing if they are at issue.
To follow the judge's orders in a TRO, you may need to make specific arrangements, including:
- Finding and living in temporary housing
- Submitting any firearms to the court
- Arrange to get any personal items from any place you are disallowed from being
- Shutting off all social media platforms
- Deleting any phone numbers of anyone named in the TRO
It may seem like these measures are extreme, but they are often the first steps to ensure that the provisions of a TRO are followed appropriately. TRO violations are not only harmful in a final restraining order hearing; any violation can result in a fourth-degree criminal charge.
Step 3: Monitor the status of your TRO
Most TROs that are granted end up in a final restraining order hearing. However, this is not always the case. If a petitioner who obtained the TRO decides not to continue towards a final restraining order, then a different resolution process will take place.
If a petitioner tries to have a TRO dismissed, then the defendant may still have to:
- Complete ordered counseling
- Complete TRO-related paperwork
- Appear and be heard in front of a judge
Because FRO hearings typically take place within ten days of a TRO issuance, it is likely that a claim will advance to a FRO hearing. The petitioner can request the dismissal of the restraining order on the defendant if he or she chooses during the FRO hearing. The judge may require that the petitioner speaks to a domestic violence advocate before speaking in court regarding the restraining order. Make sure you are up to date with any developments regarding your TRO after its issuance.
Step 4: Prepare for your FRO hearing
When preparing for your FRO hearing, you will learn that having an experienced attorney can be hugely beneficial. Some of the advantages an experienced lawyer will give you include:
- Explaining the general format of a FRO hearing
- Explain the legal basis that can result in a favorable result
- Help you prepare for testimony if you testify
You are an important witness at a FRO hearing if you choose to testify. It is also important to be mindful and careful that your testimony can be used against you in other criminal proceedings. In addition to properly preparing you for whatever can be thrown at you during your testimony, an attorney can also prepare your case by:
- Connecting with witnesses who can testify favorably
- Recording witness statements and making sure they appear in court
- Initiating discovery to help understand all of the available information in a case
- Locating and collecting evidence
- Building and implementing an appropriate case strategy
Your lawyer can lead your defense and help you avoid the consequences of a FRO. If you have been served with a TRO, then it is important to follow the following four steps:
- Retain an experienced attorney
- Mind your TRO conditions
- Monitor your TRO status
- Prepare for your FRO hearing
Final Restraining Orders (FROs)
Final restraining orders (FROs) are the permanent version of TROs. Judges determine whether to grant a FRO following a FRO hearing.
A FRO requires the judge to find that:
- The petitioner and defendant had a domestic relationship
- More likely than not that the defendant committed an act of domestic violence
- The defendant must be restrained to ensure the petitioner is not subject to further imminent harm
FROs can have a significant impact on an individual's life. A FRO can cause the individual restrained to move, change jobs, and even lose custody of their kids. It is important to fight the issuance of a FRO if at all possible, because of the significant impacts it can have.
FRO Hearings Information
The procedures that govern a FRO hearing are outlined in the New Jersey Domestic Violence Procedures Manual. It is important to know the rules and procedure of a FRO hearing to properly prepare for one.
TRO and FRO hearings will typically take place in the same court, county, and even judge. If a legal reason arises why a case should not be heard in the local county, then the case may be transferred or heard elsewhere. FRO hearings will take place within ten days of the issuance of a TRO unless there are extenuating circumstances.
FRO hearings are similar in form to a nonjury trial. The judge will be the factfinder and referee regarding legal issues that arise during the hearing. The judge will hear testimony offered by both petitioner and defendant and will determine whether to grant a FRO based on the information presented during the hearing.
A FRO hearing will consist of:
- An information stage where a domestic violence advocate will explain and explore each side's case and testimony regarding the FRO
- Potentially required financial paperwork if the petitioner is seeking financial assistance or damages from the defendant
- The petitioner and defendant will be allowed to testify, along with any witnesses
- Other evidence may be admitted for the judge's examination
- Oral arguments made by opposing attorneys representing their clients
A judge may delay a hearing or amend a complaint under certain circumstances. Once a FRO hearing is completed, a judge may:
- Enter a FRO with all the desired conditions
- Dismiss the TRO and deny the issuance of a FRO
- Continue the case and the conditions of a TRO until the court can determine whether to grant a FRO
If the court grants a FRO, then those orders are final unless the defendant is able to get the judge to reconsider or successfully appeal. Those situations are uncommon, so your best bet is to prevent a FRO from being issued in the first place. FROs are permanent and don't have a time limit. When a FRO is issued, the defendant will be photographed, fingerprinted, and fined by the court. The defendant will also lose their right to own a firearm in New Jersey.
What Happens When a Restraining Order is Granted in New Jersey?
After a judge oversees a final restraining order hearing, he or she will determine if a final restraining order is appropriate. If a FRO is granted, then it can include several provisions that restrict the defendant's conduct, including:
- Prohibiting any contact with the petitioner
- Prohibiting any actual or attempted nonconsensual sexual acts or any other acts against the petitioner
It is also common to see a FRO include provisions such as:
- A provision that prohibits the defendant from going where the petitioner is known to frequent. This can include places such as the petitioner's home, school, or workplace. This provision can extend to protect other family members of the petitioner as well
- A provision that prohibits the defendant from having direct contact or attempting any third-party contact. This provision governs in-person contact, telephone contact, written contact, or any electronic contact or attempts to communicate. Any contact that is prohibited can be grounds for a violation and contempt of court
- A provision that prohibits the defendant from threatening or stalking the petitioner
- A provision that prohibits the defendant from harassing the petitioner. Harassment can also be electronic in nature. Cyber harassment can occur from social media posts or other online activities.
Even though violating a restraining order is criminal contempt, it does not necessarily have to result in criminal charges. If someone did not commit a separate crime when violating a restraining order, then they will not be charged with any additional crimes.
If the defendant is also charged criminally with a domestic violence offense or one of sexual assault, then they can face several consequences and punishments. These can include imprisonment, sex offender registration, court supervision, and other penalties.
Criminal Contempt
If someone is accused of a restraining order violation, then they can face serious consequences. Once a temporary or final restraining order has been served on a defendant, each and every provision of the order must be followed. If any provision of a restraining order is violated, regardless of intent or accident, then the police will be notified, and the defendant will be arrested. This can further result in criminal contempt charges.
Under New Jersey law, a person is guilty of criminal contempt if he or she purposely or knowingly disobeys a judicial order or protective order, or hinders, obstructs, or impedes the effectuation of a judicial order or the exercise of jurisdiction over any person, thing or controversy by a court, administrative body or investigative entity.
Criminal contempt is a felony crime of the fourth degree in New Jersey. A conviction of this offense leads to a fine of up to $10,000 and up to 18 months in state prison.
Do You Need an Attorney?
A restraining order can drastically and expeditiously change many aspects of a defendant's life. Because of these changes, defendants may find themselves violating the provisions of their order. This is why it is always recommended that defendants on the tail end of a restraining order obtain legal counsel. A knowledgeable and experienced legal professional can help defendants avoid criminal contempt charges and defend them if necessary.
It is also recommended that defendants retain an attorney before a FRO hearing because they are very similar to criminal trials. An attorney can help build a solid defense by helping to prepare you for the testimony you'll give and by analyzing the sufficiency of any evidence that is available.
