If someone seeks to get a restraining order against you, then the first thing you are likely wondering is how to get it dismissed. Restraining orders can have a significant impact on your life, freedom of movement, and who you can communicate with. If you are facing the potential of having a restraining order granted against you, then it is critical that you act fast. Make sure you speak to an experienced criminal defense attorney if you have legal questions.
Restraining Orders Explained
A restraining order is a court order that is authorized by a judge to prevent someone from having contact or communication with another individual. Judges grant restraining orders when there are allegations of violence or threats of violence to keep people safe from threatening or harmful individuals. It is common to find that restraining orders involve people that know each other, such as a former couple or members of the same family. Restraining order petitions in New Jersey must be filed in the county where the alleged victim lives. Restraining orders can be granted if there are allegations of:
- Sexual assault,
- Kidnapping, or
- False imprisonment.
How a Restraining Order Gets Granted
In New Jersey, there are two types of restraining orders. They are known as Temporary Restraining Orders (TROs) and Final Restraining Orders (FROs), with the main difference being the length of time that they are good for.
The usual first stop for a restraining order is a TRO. A TRO is a placeholder restraining order that can be authorized when there is an allegation of violence. A TRO request must be filed with the appropriate superior court or a local police station. The petitioner who is asking for a TRO is required to appear in court for a hearing with the judge to decide if the TRO should be issued to protect the individual. If the judge grants a TRO, then the TRO is served on the individual named in the complaint by local police or county sheriff. A TRO will remain in place until a Final Restraining Order (FRO) hearing.
The second and more permanent type of restraining order in New Jersey is called a FRO. A FRO can be authorized after a full hearing in front of a judge that gives both sides the ability to tell their side of the story. TROs operate differently. When deciding whether to grant a TRO, a judge will only hear from the petitioner. If a FRO is granted, it will be permanent and cannot be changed unless the judge agrees to do so. If a preliminary TRO is granted, then the court will then set a hearing date for a permanent FRO hearing within ten days.
How a Restraining Order Gets Dismissed
If a FRO is granted by a judge, then it remains permanent unless the case is later reopened and a judge makes changes. To have a judge reopen a FRO case, you are required to file a motion for reconsideration or appeal. Judges have the ultimate power here as even if the parties want the order removed, a judge can keep the order in place for everyone's safety interests.
If a restraining order has been granted against you and you want to appeal, then your case will need to go to the appellate court. Appellate courts review case records and transcripts to determine if the Superior Court judge followed the law appropriately in making his or her decision. All restraining order reconsideration motions must be filed within 20 days of a judge's decision denying )or granting) a restraining order. All restraining order appeals must to the appellate court must be filed within 45 days of a judge's decision denying (or granting) a restraining order. A failure to file within this specific period will likely prevent you from ever being able to have the judge's decision changed. If this happens, then any motions filed will need to contain new facts and circumstances that were not considered in the previous decision.
Restraining orders are dismissed in three basic ways:
- The petitioner voluntarily dismisses the restraining order in court;
- The judge decides against granting a FRO due to insufficient evidence; or
- A civil restraints agreement is made and dismisses a FRO action.
A civil restraints agreement is a negotiated consent agreement that dismisses the FRO and places an agreed-upon set of rules between the parties. In all of these scenarios, the restraining order action is over, and no further action will occur unless there is a violation of a civil restraints agreement if one is made.
What Appears on Your Record If You Have a Restraining Order?
Restraining orders are civil in nature, so this means that if one is granted against you, you don't have a criminal record or conviction. This means that you do not need to seek an expungement of this record because it is not criminal in nature. What you do have is a set of orders made by a judge that are entered into the law enforcement database in case any violations are alleged. If you are arrested and charged with a restraining order violation, then this will end up on your criminal record because a violation of a restraining order is a criminal offense in New Jersey. Even if you are acquitted of the violation, the record of the arrest and charge will remain on your public record. If you have legal questions, then call us at The Lento Law Firm so we can help!
Contact the Lento Law Firm Today
If you have questions about restraining orders, then it is important that you speak to an experienced attorney. It is important to know how the restraining order process works if you are facing a restraining order against you. To learn why Attorney Joseph Lento and the Lento Law Firm is the right decision to help you with your case, call us toll-free at 888-535-3686 or contact us online.