Court Reversed Final Restraining Order: What Happened Here?
Posted October 30th, 2018 by Anthony Carbone, PC.
Categories: Domestic Violence.
As the month dedicated to Domestic Violence Awareness ends, the court continues to evaluate cases each and every day. Just last week, the New Jersey Appellate Division reversed a final restraining order (FRO) against a defendant. At the same time, it allowed the restraining order requested by the same individual to stay in place.
Confused for a moment? Truth be told, both parties in a relationship are entitled to seek the court’s protection. The onus is on the two to first provide proof of at least one predicate act of domestic violence. Meanwhile, the case of Silver v. Silver adds an additional requirement. There must be convincing evidence that “a domestic violence restraining order is necessary to protect the plaintiff from immediate danger or further acts of domestic violence.”
All things considered, it could be that one defendant used the internet as a means of harassment. Cyber harassment is viewed as a predicate act of domestic violence. At the same time, there may be evidence that the other party was guilty of physical assault. It is entirely possible that restraining orders could be ordered naming both as defendants upon sufficient proofs.
On first glance, you might wonder why it even matters. After all, a restraining order against one – should mean that contact will be contained. However, the ramifications of restraining orders extend beyond the personal relationships of the parties.
For starters, there’s a chance that a restraining order against you could affect your employment. It could also create concern as far as seeking housing and interfere with your interaction with your children.
Many temporary restraining orders do not make it to FRO status because they do not meet the two-prong test described above. You may be interested in learning what happened in this recent case considered by the court.
Only One Restraining Order Reversed
The New Jersey Appellate Division took just a couple of weeks to return a written decision in the matter of J.F. v. W.C. Notably, initials are used to protect the identity of both parties. Additionally, the case is marked as “unpublished.” This means that this particular legal opinion only applies to J.F. and W.C. Nonetheless, it provides some valuable insight.
First, some information about the parties. J.F. and W.C. never married. They qualify for protection under domestic violence laws because they previously dated and share custody of a child conceived during that relationship.
The court’s decision refers to J.F. as Jane; W.C. is Warren. Warren made the initial application for a temporary restraining order (TRO), which was granted by the court. He charged Jane with harassment after she came to his home and started an argument concerning school photographs of their child.
Warren asked Jane to leave his premises, but she refused to comply. Subsequently, Warren called for police assistance and later requested the TRO. Warren cited other concerns in his application for the temporary restraining order. He claimed that Jane threatened him, sent him harassing text messages, stalked him, hit him, and also threw chicken at him.
In the meantime, Warren had one other issue that he brought to the court’s attention. Warren is a police officer in New York and was upset that Jane called his job on more than one occasion. He viewed this as harassment.
When Warren came to court for the final restraining order, the judge determined that he met the necessary proofs and granted one. In fact, on that same day, the court also issued a restraining order on Jane’s behalf.
The Other Restraining Order
Jane filed for an order of protection after Warren applied for his. Unfortunately, she did so without the assistance of legal counsel and only listed assault to justify her request for the FRO. During consideration of the matter, the judge even acknowledged that as a pro se litigant, Jane did not understand the “need for specifics” in applying for relief.
A number of allegations surfaced during the TRO request and the subsequent FRO hearing. Jane claimed that Warren followed her home on occasions when he was scheduled to be at work. She also testified about assault incidents, although admitting that none were ever reported to the police.
Warren’s mother was brought in to testify concerning the allegations that her son was stalking Jane. She recalled seeing Jane fifteen minutes after one of the times Warren supposedly drove past the house. Although Jane claimed she was scared, she did not mention the event to Warren’s mother. Additionally, Jane did not appear to be “frazzled, upset, worried [or] in fear for her life.”
Ultimately, the trial court found that Jane did not provide “any real testimony or evidence…that would establish the predicate act of assault.” Nonetheless, the judge found that harassment as a predicate act of domestic violence was proven. Furthermore, the judge found that Warren both appeared angry and had control issues.
One problem. Jane had only listed assault as the predicate act of domestic violence in her application for a protective order. The harassment charge was never added – and therefore, Warren was not given notice to prepare a defense to the claim.
Although the trial court granted both parties restraining orders, the one entered against Warren was dismissed. Warren’s due process rights were violated because the complaint was never amended naming harassment as a predicate act of domestic violence.
Entry of a restraining order is a serious matter. At the Law Offices of Anthony Carbone, we assist clients concerned about domestic violence charges. Contact us to see how we can help you through this difficult time.