Restraining Orders–Custody and Visitation

What Are Grounds for a Restraining Order?

A restraining order is a legal device that prohibits an individual (the defendant) from contacting or coming within a certain distance of another person (the plaintiff). The restraining order may also limit interactions between the defendant and the plaintiff's family, including any children the two may share.

Restraining orders are by nature a court order designed to keep individuals with a domestic relationship apart in the interest of safety. In fact, except in limited situations, restraining orders can only be sought when the plaintiff asserts that the defendant has committed an act of domestic violence.

In the state of New Jersey, domestic violence is defined by law as occurring between:

  • A spouse or ex-spouse
  • A present household member over 18 (or an emancipated minor)
  • A former household member over 18 (or an emancipated minor)
  • Individuals who are dating or who have dated
  • Parents of a shared child

The type of conduct that constitutes domestic violence ranges from homicide to cyber-harassment; however, the most common domestic violence accusations are of physical, emotional, economic, and psychological abuse.

Although restraining orders are a necessary protective tool, ensuring the safety of individuals, their application can complicate family situations when emotions are already running high. Notably, separated parents involved in a domestic dispute often have existing custody arrangements that can be severely impacted by restraining orders. This scenario can be particularly frustrating if the defendant-parent feels the accusations are exaggerated or even false. The most appropriate way to handle this situation is to abide by the restraining order and seek out competent legal representation as soon as possible.

How Do Temporary Restraining Orders Affect Custody Rights?

First, it is important to understand the difference between Temporary Restraining Orders (“TRO”) and Final Restraining Orders (“FRO”). When the plaintiff-parent accuses the defendant-parent of domestic violence, a judge will issue a TRO on an interim basis until a more thorough investigation and hearing can be held. During this period, the defendant-parent is barred from contacting or coming near the accuser and sometimes even their family and friends. If both parties live in the same house, then the person who is subject to the restraining order must leave the home regardless of whose name is on the title or lease agreement.

All of these circumstances will be further complicated when there are shared children between the plaintiff and the defendant. When the plaintiff-parent is granted a restraining order, the overseeing judge may prohibit custody or visitation of any kind. If custody mandates have already been put in place by a family law court, then a subsequent restraining order that prohibits contact with the children will supersede the family law court's orders.

During this time, the court has wide discretion to act in the best interest of the children; however, this can be frustrating in instances where a TRO is issued. Since TRO's are handled quickly, and since they are designed to act as temporary relief until more thorough evidence can be presented, the judge may not have all of the facts in front of them when they make their ruling. During the period of time covered by the TRO, the judge may require that your visitations be supervised or that you cease contact with your children completely.

It's important that you seek the help of an attorney experienced in navigating the complicated stakes of domestic violence accusations that result in a restraining order. Joseph D. Lento understands how important contact with your children is, not just for you, but for your kids as well.

How Do Final Restraining Orders Affect Custody Rights?

A Final Restraining Order may make permanent the terms of the Temporary Restraining Order. If you are unable to adequately defend yourself during the final hearing, the restrictions imposed could even become more severe. Fortunately, during this hearing, you do have an opportunity to address the court and present evidence of your fitness to be with your children. This will also be an opportunity to explain your side of the story. TRO's are sometimes the result of emotional conflict that's not entirely accurate, and during the Final Order Hearing, you and your attorney will be able to add context to the situation.

Importantly, the final hearing is held a short 10 days after the TRO is put into place, allowing for little time to prepare your side of the story. Although this may be your first time dealing with protective orders affecting your custody rights, a seasoned attorney will be able to guide you through the process and help you present your best case.

What Happens After the Final Order?

Restraining orders are considered a civil matter, rather than criminal, and as such, the plaintiff-parent needs only to prove the defendant-parent's conduct by a preponderance of the evidence. That is to say, the bar is lower, and so it's easier for a case to be made against you if you've been accused of domestic violence. Sometimes, this means that the final hearing results are disappointing. Importantly, you do still have options—you may be able to appeal the order or have it vacated.

Appealing a Final Restraining Order may be successful when the judge made an error in his or her decision. Importantly, in New Jersey, you only have 45 days to file your appeal. In some instances, it may be appropriate to have your restraining order vacated. The plaintiff or the defendant may each request that the restraining order be vacated, but the judge will make his or her determination only after reviewing whether circumstances have changed.

The processes for having a Final Restraining Order decision appealed or vacated can be complicated—albeit worth it. Final Restraining Orders are permanent, and even if you later resolve your conflict with the plaintiff-parent, you still must not violate the conditions of the order while it is in place. If you do, you can be charged with a criminal violation even after relationships have been mended.

How Reconciliation Affects Restraining Orders

Restraining orders will result after emotional and sometimes physical conflict. Nearly everyone in a domestic relationship will experience conflict with their significant other at some point. Sometimes, though, when emotions run high, things can quickly escalate and get out of hand. A restraining order may be sought out by the harmed partner, and if granted by the judge, the other individual must abstain from any contact.

Once a restraining order is in place, many defendants receive a wake-up call and seek out treatment for their behavior if their actions did, in fact, warrant the restraining order. Abusive behavior can often be attributed to mental illness or addiction issues, and while these hurdles can be hard to overcome, many find relief with the proper therapies and medications. If you've worked hard to better yourself, you deserve a second chance.

Once you've received the help you need to maintain healthy emotional reactions, you and even your former partner may feel that it's time to reconcile. Parents with shared children will often reconcile for the sake of their kids, and even if they don't rekindle a romantic relationship, they will interact and attend the same family functions.

An issue arises, though, if this reconciliation occurs while a restraining order remains in effect. Under New Jersey Law, violating the provisions of a restraining order constitutes the crime of contempt. If you knowingly violate a restraining order, you may be charged with a Disorderly Persons Offense. Accordingly, even after you've resolved the issues that lead to the restraining order, you need to speak with an experienced New Jersey attorney about getting the order lifted before you contact the other individual.

Do the Kids Have a Say?

In the state of New Jersey, the courts work to provide solutions that are in the best interest of the child when determining how custody should be handled. While it may seem obvious that a judge would be reluctant to consider the defendant-parent's custodial rights in a restraining order proceeding, it's important to remember that the state of New Jersey places significant weight on the fact that “the best interest of the child” is more easily obtained when the child has a relationship with both parents.

Once a Temporary Restraining Order is granted, the final hearing will take place within a short period of time. Accordingly, the evidence presented in the final hearing is paramount to your success in maintaining a relationship with your child. That said, if you're barred from seeing your children after the TRO is put into effect, all is not lost. You need to immediately contact an attorney who knows how to best present your side of the story so that a judge will understand that your child is not best served if they cannot have contact with you.

Contact a Temporary and Final Restraining Order Attorney

Attorney Joseph D. Lento understands how important your relationship with your children is. If a Temporary Restraining Order or Final Restraining Order is threatening, or has already impacted, your parental rights, call the Lento Law Firm at 888-636-3686 right away.

​​​Contact The Lento Law Firm Today

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When it comes to criminal defense cases, you need the right person in your corner. To learn more about how Mr. Lento can help you, call the Lento Law Firm today at 888-535-3686. or contact him online.

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