Dismissing a Restraining Order: What You Need to Know
Posted September 6th, 2018 by Anthony Carbone, PC.
Categories: Domestic Violence.
First things first. You should be aware that there are two types of restraining orders when it comes to allegations concerning domestic violence. You may make an application for a temporary restraining order (TRO) to alleviate difficult situations for a short time. Ultimately, you will be called upon to appear before a family court judge in consideration of a final restraining order (FRO.) However, what happens if the situation changes and you no longer need a restraining order? How difficult is it to have either a TRO or an FRO dismissed?
As a matter of course, the court takes restraining orders quite seriously. Take the litigant who was upset and granted a TRO after her husband pushed her during an argument. The local municipal judge signed the order barring any contact with her spouse. That said, the two made up a few days later. (This in itself is somewhat amazing – as they essentially violated the no-contact court order.)
In the meantime, the couple was scheduled for an appearance with the intent of converting the TRO to an FRO. The wife explained to the court clerk that she wanted to withdraw her application. She was cautioned against the dangers of abandoning the prospective protections.
Despite the plaintiff’s insistence that she no longer wanted a restraining order, both parties were directed to the courtroom. The judge was not happy when she learned of the new development. She essentially admonished the woman for wasting the court’s time, while also warning about the dangers of lifting restraints.
Dismissing a Final Restraining Order
Without question, it is more difficult to obtain a final restraining order than a TRO. Not only must there be evidence of an act of domestic violence as defined in NJSA 2C:25-19. According to precedential case law, there must also be a showing that the restraining order is necessary “to protect the victim from an immediate danger or to prevent further abuse.”
Based on the criteria described above, it is not necessarily easy to obtain a final restraining order. Obviously, an FRO has consequences of its own. It could even interfere with employment opportunities. Does it have to last forever? Not always. Upon a showing of good cause or consent of the victim, a final restraining order might be dismissed. However, you might be interested to read the outcome of a recent New Jersey Appellate Court decision.
K.L. v. S.L. was decided by the New Jersey Appellate Division on August 24, 2018. Notably, this is not the first time that the couple’s legal matter has escalated to the higher court. Additionally, the court’s legal opinion is only binding upon the parties. The legal decision uses initials to protect the litigants’ privacy. K.L. and S.L. represented themselves in this aspect of the case.
The parties married in 1996 and had a daughter named Sara in 2005. In 2009, they divorced in Texas. The final judgment of divorce awarded custody to K.L., the child’s mother. With S.L.’s consent, K.L. moved with Sara to New Jersey to live with family.
Execution of Final Restraining Order
It is unclear from this legal opinion what transpired from 2009 until 2011 as far as contact between the parties. However, a previous court decision involving the same parties provides some insight. S.L. communicated with Sara by Skype and visited with her in person three times during that time period.
In 2011, K.L. filed a domestic violence complaint against S.L. claiming that her former husband had “abused her physically, sexually and emotionally.” The plaintiff also raised complaints about the abusive manner in which S.L. spoke to Sara. Additionally, she shared information indicating that the defendant insisted on contacting her employer. S.L. did not appear at the hearing.
Ultimately, the New Jersey court awarded K.L. sole legal and physical custody of Sara. It also precluded S.L. from communicating with K.L’s place of employment. S.L. was further directed to only interact with his former wife as it pertained to their child. The defendant’s parenting time was also suspended, and S.L. was barred from communicating with Sara and other individuals.
Attempts to Dismiss FRO
According to the court opinion, the first attempt to dismiss the FRO occurred in 2013 when S.L. filed a motion to vacate the order. In the alternative, he asked that the court conduct a hearing to determine if there was still a need for the final restraining order. The motion was denied.
Less than a year later, S.L. filed a new motion attempting to dismiss the FRO. The judge concluded the application was essentially the same one previously filed – and denied the motion. The Appellate Division agreed with the trial court’s opinion.
In 2016, the defendant attempted to dismiss only certain provisions of the final restraining order. He also sought joint legal custody and parenting time. The court determined that the parties should submit to a “best interests evaluation” before coming to a conclusion. In the meantime, the judge ordered S.L. to stop filing any further requests for relief without the court’s permission. One of the problems was the issue of several procedural errors.
Nonetheless, S.L. filed an additional motion in 2017 attempting to establish means of communicating with his daughter. Once again, the court denied his request – citing among other things that the defendant had acted in “bad faith” by engaging in “continuously frivolous litigation under this docket in the Family Part.”
However, there’s something else important to note. Both the trial court and the upper court found that the defendant had not demonstrated a change in circumstances. K.L. was still afraid of S.L. and it appeared that a restraining order was an effective means of protection.
At the Law Offices of Anthony Carbone, we have decades of experience assisting clients facing family law issues. Contact us to see how we can assist you – there is no charge for our initial consultation.