Federal law allows those seeking protection from someone to obtain a restraining order at no cost. Restraining orders are commonly referred to as protection orders. These are injunctions or orders made by a civil or criminal court to prevent acts such as threats, harassment, or violence. They prohibit an individual from contacting, communicating, or being close to one another.
New Jersey Law
A restraining order may be temporary or permanent under New Jersey law. Sometimes a temporary ex parte restraining order is issued in an emergency if a judge deems it necessary for someone's well-being. Counties often have an “on-call” municipal court judge when a restraining order is needed after the court is closed. A request for a restraining order may be made regardless of whether there has been an arrest or if criminal charges are pending.
When a temporary restraining order (TRO) is issued, there is typically a hearing conducted within 10 days. The court may issue a permanent or final restraining order at the hearing once all parties are present, and the evidence is presented. Final restraining orders do not have a termination date. If a party wishes to terminate an order, they must file a request, and the judge can consider ending it.
Filing a Complaint of Domestic Violence (2C:25-28)
A filing should be made in the jurisdiction where either party lives or where any alleged actions occurred. The petitioner's address may be removed from any paperwork for their protection. A person may file on behalf of someone else if the individual is “physically or mentally incapable.” Emergency orders may prevent the alleged defendant from returning to a particular location or prohibit them from possessing a deadly weapon. If warranted, the judge may order the search and seizure of a weapon.
Protection Orders Not Involving Domestic Violence (2C:14-14)
Other grounds for a protection order may include actions (or attempts) that involve “nonconsensual sexual contact, sexual penetration, or lewdness” through the New Jersey Sexual Assault Survivor Protection Act (SASPA). Provisions have recently been added that pertain to stalking, harassment, and cyber-harassment. A parent or guardian may file on behalf of a minor or someone incapable of doing so. A judge can issue an ex parte TRO under SASPA if they believe it's necessary to protect the victim's safety and well-being. See N.J.S.A. §§ 2C:14-13, et seq. A hearing for a final order typically takes place within ten days.
Serving a Temporary Restraining Order
When a judge issues a temporary restraining order (TRO), if the police did not already arrest the defendant, the police will serve the TRO on the defendant along with a date for the final restraining order (FRO) hearing. The hearing typically occurs within ten days.
If the plaintiff lives in the same home as the defendant, the police will escort the plaintiff home and remove the defendant from the premises. If the TRO orders an arrest of the defendant, the police will arrest the defendant. The police will also arrest the defendant if they fail to leave home or cooperate.
If the defendant isn't home or the police can't locate the defendant, they will forward the TRO to the family court and let the court know they couldn't complete service. They will keep copies of the order at the police station to serve the defendant if they are located. If the defendant lives in another jurisdiction, the police will notify the municipality where the defendant lives or works to serve the TRO or FRO.
Hearing Procedure (2C:25-29)
Hearings are generally held at the Superior Court. The alleged defendant is served with the complaint per local rules. The burden of proof is by a preponderance of the evidence. Courts may consider any of the following:
- Any prior acts of domestic violence or restraining orders in other jurisdictions involving the parties
- Whether there is an immediate danger
- The financial situation of the parties
- What is in the best interests of any children (when applicable)
Orders may be granted with any of the following conditions:
- One party may have sole possession of a residence and/or property such as a vehicle or pet
- Child custody and parenting time (visitation) arrangements
- One party may be required to pay financial compensation for harm caused or required to pay a mortgage, rent, etc.
- The alleged defendant may be required to attend counseling or submit to a mental health evaluation
- Restricting the alleged defendant from certain homes, schools, workplaces, etc.
- Restricting the alleged defendant from making contact either directly or through other parties
Final restraining orders typically do not expire. A TRO will only remain in place until the hearing for the FRO. If the plaintiff doesn't appear for the FRO hearing, the TRO will expire. However, if the court issues a FRO, it will not expire. The order will remain in place until one of the parties petitions the court to lift or modify the FRO.
Restraining Orders and Background Checks
A restraining order is a civil matter in New Jersey and typically won't go on your criminal record or at least won't appear on a standard criminal background check. However, once a court issues a final restraining order, they will place your photograph, fingerprints, and information in the Domestic Violence Central Registry. The court doesn't need to find you guilty of a crime to put you on the registry, which is public and searchable.
While a restraining order won't appear on a typical criminal background check, if you have a security clearance or work for the military or law enforcement, your employer will find the restraining order during an extended background check. If this is your situation and you face a restraining order hearing, you should contact an experienced attorney as soon as possible.
Contempt (2C:29-9)
The term contempt refers to violating a court order. While a restraining order is typically a civil charge, violating a restraining order is criminal contempt of court and is a criminal charge. See N.J.S.A. § 2C:29-9. The police typically charge criminal contempt as a fourth-degree offense when done intentionally. Fourth-degree offenses in New Jersey are punishable by up to 18 months of incarceration and a maximum of a $10,000 fine.
If the police have probable cause to believe that the defendant violated a restraining order, the law mandates that they arrest the defendant. See N.J.S.A. § 2C:25-31. Even something as seemingly small as a text or message on social media to the plaintiff can be a violation of a restraining order. A second violation of a restraining order can result in 30 days in jail. See N.J.S.A. § 2C:25-30.
Legal Representation for Restraining Orders in Atlantic County
Joseph D. Lento has many years of experience in representing clients in restraining order hearings and those alleged to have violated an existing order. He will ensure that your rights are protected. Contact the office today for a consultation at (888) 535-3686.
