What is the Standard of Proof in a Restraining Order Case in New Jersey?

A state court may implement a restraining order when someone is harming another person. New Jersey has a domestic violence restraining order and a sexual assault restraining order depending on the circumstances. How prevalent are domestic violence and sexual assault? Data shows that roughly 18% of women and 1% of men in the U.S. have been a victim of sexual assault.

Among female victims, approximately 51% of sexual assaults were committed by intimate partners and 41% by acquaintances. More than 42% of victims first experience a sexual assault before turning 18 years of age. Nearly 28% of first-time victims are under the age of 10.

Understanding Domestic Violence

Domestic violence is defined by the U.S. Department of Justice as being violence that occurs involving an intimate partner. It is typically part of a larger pattern of abusive behavior that develops in a relationship. Acts of domestic violence do often involve physical violence. These actions may also be sexual, emotional, economic, or psychological that is motivated by a desire to assert or maintain control.

Approximately 85% of victims of domestic violence are women. Beyond that, the demographics indicate that the problem occurs in relationships regardless of their age, sexual orientation, race, education or income. New Jersey law states that domestic violence occurs among those who have or soon will have a child together, are currently intimate partners or have been in the past.

According to New Jersey statutes, domestic violence is characterized by the relationship between the parties—not any specific criminal offense. Based on the nature of the action(s), domestic violence may be charged as any of the following offenses: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, cyber-harassment, stalking, criminal coercion, or robbery.

Defining Sexual Assault

The other type of restraining order that exists in New Jersey results from allegations of sexual assault. This is defined as “actual or attempted nonconsensual sexual contact, sexual penetration, or lewdness.” Lewdness is defined as “exposing one's genitals for the purpose of arousing or gratifying the sexual desire of the abuser or any other person.”

Temporary vs Final Restraining Orders

A temporary restraining order is issued by a judge when there is a reason to believe that the petitioner is in danger. A parent or guardian may file for an order on behalf of minor children. These emergency orders for relief may forbid the defendant from returning to a residence and prohibit them from possessing a firearm or other weapons. The defendant may be permitted to return to the residence to briefly gather personal belongings, which may involve police supervision.

The defendant will be formally served with a copy of the order. Law enforcement is also notified and a court hearing is scheduled for a time in the next 10 days. All restraining orders are added to a central state registry. A restraining order may be requested and issued regardless of whether criminal charges are filed or not.

The parties will meet in court for a hearing where a judge will decide whether to implement a final restraining order. During the hearing, the parties may present evidence and witness testimony may be heard. Having assistance from an attorney is strongly recommended for parties involved in these actions.

Standard of Proof

Restraining orders are civil actions. The standard or burden of proof in these matters is by the preponderance of the evidence. According to this standard, it must simply be proven that the alleged acts of domestic violence or sexual assault “more than likely” occurred. Viewed another way, the judge may rule in favor of the plaintiff if the evidence reflects a 51% or greater certainty.

Comparison to the Standard Applicable in Criminal Matters

The preponderance of the evidence standard is a lower standard than beyond a reasonable doubt standard that applies in criminal cases.  In criminal cases, the plaintiff must prove their case to an extent where no reasonable individual would have doubt.

Possible Provisions (Conditions) of a Restraining Order

The court will use its discretion in drafting the conditions that the restraining order imposes on a defendant. The final restraining order does not have a specified expiration or end date. Some of the more common conditions include the following:

  • The defendant is prohibited from visiting the victim's residence, school, and/or place of work
  • The defendant is prohibited from directly or indirectly contacting or communicating with the victim
  • Provisions regarding custody and visitation of minor children may be included when applicable
  • Financial conditions may be imposed including restitution or reparations for losses that the defendant's actions caused
  • The defendant may be prohibited from owning or possessing a firearm or other weapon
  • The defendant may be required to submit to a psychological assessment or attend counseling sessions

Violating a Restraining Order

Although restraining orders themselves are civil matters, violating a restraining order can lead to criminal charges. A law enforcement officer may arrest an individual if they have reasonable cause to believe they have violated a restraining order. Violations may lead to criminal contempt charges and may result in penalties including incarceration.

Central Registry for New Jersey Restraining Orders

Restraining orders are centralized through entry into the Family Automated Case Tracking System (FACTS). This allows members of law enforcement throughout the state to access the details as necessary. The Administrative Office of the Court maintains these records and is responsible for the confidentiality of the data.

Importance of Retaining Legal Representation

Those who are served with a temporary restraining order should promptly consult with an experienced lawyer. This should be done quickly to allow for advanced preparations for the upcoming court hearing. Having a seasoned criminal defense lawyer is also critical when facing allegations of violating a restraining order.

New Jersey Attorney for Restraining Orders

Joseph D. Lento has been providing effective legal representation for clients in New Jersey for many years. He will closely review the facts, evidence, and circumstances to create a comprehensive strategy that protects your rights and achieves positive outcomes. Please contact the office at (888) 535-3686 for a consultation.

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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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