In New Jersey, people who seek restraining orders must meet a group of legal standards contained in domestic violence statutes and related case law. New Jersey courts must follow the legal standards found in the Prevention of Domestic Violence Act, NJSA 2C: 25-27 and in Silver v. Silver, 387 N.J. Super (2006). The Appellate Division has set forth two requirements for a restraining order in New Jersey. Under Silver, courts will use a two-prong test when determining whether to grant a restraining order.
The Lento Law Firm Is Experienced in Restraining Orders
The Lento Law Firm has experienced restraining order attorneys representing both individuals seeking restraining orders and those defending against them. Call the Lento Law Firm today if you are considering asking a court for a restraining order or have already been served with a restraining order. The Lento Law Firm Criminal Defense Team has a wealth of experience representing parties on both sides, and they can represent your interests robustly and carefully. Call 888-535-3686 or leave your details online, and we will contact you.
Standard of Proof
In determining whether to grant a restraining order, the trial court must find that the person seeking a restraining order has proven their case by a preponderance of the evidence.A fact is proven by a preponderance of the evidence if it is more likely than not. In other words, the court finds it is at least 51 percent likely that the plaintiff has stated grounds for a restraining order.
Prong One: A Predicate Act
The first question the court will ask when considering a restraining order is whether a required predicate act or violation has occurred. The Prevention of Domestic Violence Act, NJSA 2C: 25-27, provides that a plaintiff must have been a victim of domestic violence under the Act. There are nineteen possible predicate acts under N.J. law, including:
- Assault
- Kidnapping
- Sexual Assault, Criminal Sexual Contact or Lewdness
- Harassment or Stalking
- False Imprisonment
- Cyberharassment
- Terroristic Threats
- Criminal Coercion
- Contempt for a Domestic Violence Order
- Any other crime involving risk of death or serious bodily injury.
Prong Two: Imminent or Future Danger
To satisfy the second requirement for a restraining order, the court must find that the defendant is an imminent or future danger to the plaintiff. The court must find that a restraining order is necessary to protect the plaintiff from immediate danger. The court must be satisfied that the defendant poses a real danger—the plaintiff must be a victim of domestic violence, requiring protection in the future.
Final Restraining Order – Six Factors under Act
The Prevention of Domestic Violence Act provides that the trial court must consider the following six factors in a Final Restraining Order Hearing:
- A history of acts of domestic violence between the parties, including any of the predicate acts.
The trial court, in deciding whether to grant a Final Restraining Order, must look at the history of the domestic violence in the case. Has either party alleged domestic violence in the past? Does either party have a history of conviction for domestic violence? Have charges been made and dismissed in the past? The court will consider the history of domestic violence between the parties. The court is looking for a pattern of domestic violence to assess the risk of violence in the future. A pattern will more clearly establish the need for a restraining order to a judge.
- Immediate danger to the plaintiff or property.
The next issue the court will consider is whether the plaintiff is in immediate danger. It is not adequate that the defendant uses offensive language or is objectively unreasonable. The plaintiff must be afraid of the defendant, and the fear they experience must be reasonable. The Silver court found that the “guiding standard” in restraining order cases is the need to protect the victim from further abuse, and the failure to treat domestic violence seriously violates the law. If the court finds the predicate act has occurred, it must make findings as to whether there is a future threat. If a future threat exists, the court will have little choice but to grant the final restraining order.
- Financial circumstances of the parties.
In deciding how to handle issues of child custody and other issues, the court can consider the financial circumstances of the parties. A person without economic means may have stayed in an abusive situation even where they fear the defendant.
- Best interests of the victim and any children.
The court will consider the best interests of the parties and any children when deciding whether to grant the FRO and on what terms. The court has broad powers to modify custody orders and other domestic relations orders. People are often surprised to learn how quickly a court can hear issues of domestic violence and modify custody and visitation orders. If you are served with a restraining order, make sure to seek counsel immediately and take the issue seriously. The court has the ability to make it extremely difficult for you to continue as a parent.
- The safety and protection of the victim in determining custody and parenting issues.
The court will determine how to handle issues of custody of children and will be guided by the safety and protection of the victim and children in determining how to handle time sharing and custody issues. While protection orders that provide for supervised or limited visitation may seem heavy-handed, remember that the court will be focused legally on protection of the victim or victims. The court will have the power to severely limit contact with children or take other steps to protect them. If you face allegations of violence, seek counsel and prepare for your restraining order hearing.
- A verifiable order of protection from another state or jurisdiction.
The court may always consider an order of protection granted against the defendant in another state or jurisdiction. If you have more than one restraining order against you or you have restraining orders in multiple jurisdictions, it is absolutely necessary to have legal representation at the final hearing. Call an experienced restraining order attorney immediately.
Proving Your Case (or Defending)
In presenting your case for a Final Restraining Order or defending against one, you may present the testimony of witnesses and other kinds of evidence. By far, the most important evidence in a restraining order hearing will be the testimony of the parties. Whether you are seeking a restraining order or defending against it, you can give testimony and cross-examine witnesses for the other side.
In addition to testifying, you might present:
- Photographs of injuries after violence.
- Medical records of care for injuries.
- Emails or texts between the parties.
- Voicemails.
- Police Reports.
- Social Media Posts.
- Witness statements.
- Videos of incidents or altercations.
The Rules of Evidence will govern the evidence you wish to present at the hearing. You may have questions about when you can videotape or record telephone conversations and whether you can use recorded conversations in court. Sometimes, these questions have clear answers, but the question is more difficult at other times. Make an appointment with an experienced attorney before your hearing and discuss these issues. You will have much greater peace of mind if you know exactly what evidence the judge will consider in your case.
Hearing on the FRO
After the Hearing on the Final Restraining Order, the court will generally rule in one of two ways:
- The judge may find insufficient grounds, in which case the order will be dismissed. The plaintiff can apply for another restraining order only if a new act of domestic violence occurs. The plaintiff cannot get another “bite at the apple” by seeking another order based on acts alleged in the prior restraining order petition.
- The judge may find that the plaintiff has proven their case and enter a Final Restraining Order. If this happens, the consequences are quite serious. The defendant's information, including fingerprints, will be entered into a domestic violence database. The defendant will be barred from contact with the plaintiff, and violation of this order is a criminal violation. The court may modify domestic relations orders, such as custody or child support orders.
Consequences of Entry of Restraining Order
The entry of a Final Restraining Order, or FRO, comes with serious consequences:
- Entry of Defendant into the domestic violence database. The authorities will fingerprint the defendant, and their information will be entered into the database, along with allegations of domestic violence.
- The defendant will be barred from contact with the plaintiff. If the defendant violates this provision, it is a criminal violation. A second violation of a FRO may require incarceration. Violating a FRO is a very serious matter.
- The defendant may lose custody of the children or have custody modified. The potential loss of the right to parent children is the most serious consequence for many people.
- The defendant may indefinitely lose the right to own or possess a firearm. It is typical for the court to enter an order after entry of a FRO preventing a defendant from owning or possessing a firearm. The authorities will take possession of guns, and the defendant will be barred from purchasing other guns. This prohibition against possessing a gun is indefinite in nature.
Dissolving a Restraining Order – Carfagno Factors
If a party moves to dissolve a restraining order, the court will use factors articulated in the Carfagno case to determine whether good cause to do so has been shown. These factors include:
- Does the victim consent to remove or dissolve the restraining order?
- Does the victim fear the defendant?
- The current state of the relationship between the plaintiff and defendant.
- Has the defendant violated the restraining order?
- Does the defendant abuse alcohol or drugs, and have they engaged in violence?
- Has the defendant had any other restraining orders against them?
- Does the plaintiff object to removing the restraining order in good faith?
If the court finds good cause for removing the restraining order, it will enter an order removing it. If the court finds a lack of good cause for removing the restraining order, the court will deny the motion to remove the restraining order, and the order will continue in force.
Statistical Snapshot of Restraining Orders in 2020 in NJ
In 2020, there were 26,217 TROs eligible for FROs in New Jersey. Of those, a little over half were voluntarily withdrawn by the plaintiff or were dismissed when the plaintiff failed to appear. Of the remainder, 3,453 final restraining orders were entered. That is a surprisingly high number of final orders.
The plaintiffs in question may have needed more help or guidance in order to effectively pursue a restraining order. The Lento Law Firm can help any person who is eligible to file a restraining order do so legally and effectively.
With regard to defendants, it is vital that anyone facing entry of a restraining order secure experienced counsel and begin planning their defense. It is very difficult to attempt to represent yourself in this type of proceeding. Find experienced counsel quickly and follow the advice of your attorney closely. Remember to carefully follow the terms of the TRO while you are waiting for your final hearing.
How the Lento Law Firm Can Help
If you are concerned about your safety and wish to pursue a TRO, the Lento Law Firm Team can help and assist you every step of the way in the process. If you have been served with a restraining order, you should call the Lento Law Firm immediately and schedule a consultation. The attorneys at the Lento Law Firm Criminal Defense Team represent both those pursuing restraining orders and those defending against them. They will vigorously pursue the best outcome possible in your case. The Lento Law Firm has represented countless N.J. clients in the court system and protective order process. Call the Lento Law Firm at 888-535-3686 or leave your details online, and we will contact you.
