According to a local police desk sergeant, there is a great deal of confusion concerning who can obtain a restraining order. Apparently, the police station is routinely flooded with requests for restraining orders that do not meet the necessary qualifications. For example, one cannot secure a restraining order as a part of a neighborly dispute. Likewise, the remedy is not available for two employees who simply cannot work well together.
Applications for restraining orders are addressed as part of the Domestic Violence Act. In order to apply for a restraining order, the parties must be involved in a qualifying relationship, such as:
- Presently married or formerly wed
- Household member or former household member in a familial sense
- Sharing a child together
- Anticipating the birth of a child together
- Involved in a dating relationship
The qualifying relationship requirement is more nuanced than the list suggests. A dating relationship does not require formal commitment or exclusivity. New Jersey courts look at how long the relationship lasted, the frequency of contact, the type of activities the parties engaged in together, and whether the conduct showed any indications of an affectionate connection. A short relationship can qualify. Casual encounters generally do not. Household members include adults who live or have lived under the same roof in a family or family-like setting. That category reaches beyond blood relatives to people who share parenting responsibilities, long-term roommates with intertwined finances, and similar arrangements. When two people share a child or are expecting one, the relationship qualifies regardless of whether they ever lived together or dated.
When the relationship does not fit one of the statutory categories, the Prevention of Domestic Violence Act is not the correct tool. A coworker problem may be addressed through workplace policy or a civil harassment complaint. A dispute with a neighbor may be handled through municipal court or a civil lawsuit. The statute exists specifically to protect people in intimate or familial relationships, and the limitation is intentional.
The age of the victim and the defendant are important aspects of the restraining order process. Look for our Thursday blog to understand how age plays a factor in the final determination of a restraining order.
The purpose of the restraining order is clearly intended to protect the victim from harm. The process is considered a civil matter. A criminal complaint may also be filed and will be heard in a separate proceeding. The statute spells out the various reasons that justify granting of a restraining order, ranging from stalking, assault to unlawful imprisonment and other violent crimes.
The list of predicate acts in N.J.S.A. 2C:25-19 is longer than many people realize. A court can issue a restraining order based on homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, stalking, criminal coercion, robbery, contempt of a prior restraining order, cyber harassment, and several other categories added by amendment over the years. The conduct does not need to result in a criminal conviction. The Family Part judge makes an independent finding based on the civil standard of proof.
Two questions sit at the center of every restraining order trial. The first is whether the defendant committed one of those predicate acts. The second is whether a restraining order is necessary to protect the plaintiff from further abuse. The second question matters as much as the first. New Jersey appellate decisions have made clear that a single isolated incident, without a history of controlling conduct or threats, may not be enough to justify a permanent order. The court looks at the entire relationship, not just the night of the police call.
The first part of the process involves a temporary restraining order. The victim can initiate the action as follows:
- Visit the offices of Family Court in the local county courthouse during business hours.
- Speak with the local police department about the reason for the request. They will provide the necessary steps to help your situation.
- Ask the municipal court judge to issue a temporary restraining order.
Before going to court or the police station, a victim should gather as much documentation as possible. Photographs of injuries, screenshots of threatening texts, voicemails, emails, social media posts, hospital records, and the names and contact information of any witnesses all help the judge make an informed decision. Even when there is no physical evidence, a clear and detailed account of what happened, when, and where carries significant weight. The application is a sworn statement, so the victim must be prepared to describe specific incidents with dates and locations rather than general impressions.
When the application is filed, the judge speaks with the victim privately and asks questions to understand the situation. If the judge issues a temporary restraining order, the order is served on the defendant by law enforcement, who also seize any firearms or weapons in the defendant’s possession. The defendant is then prohibited from contacting the victim in any form, which includes phone calls, texts, social media messages, and contact through third parties. Even a single message asking to talk things over can be a violation.
A temporary restraining order is only good for ten days, at which time the case will likely be heard in Family Court for consideration of a final restraining order***.*** (There are exceptions that are related to the defendant’s age.)
What Happens at the Final Restraining Order Hearing
The final hearing in Family Part is a trial. It usually takes place within ten days of the temporary order, although adjournments are common when either side needs to gather evidence or retain a lawyer. Both parties testify under oath. Witnesses can be called. Documents and physical evidence are introduced through the rules of evidence. The plaintiff has the burden of proof by a preponderance of the evidence, which means the judge must find it more likely than not that the predicate act occurred and that the order is needed.
The hearing is not informal despite the speed at which it moves. Cross-examination of the opposing party is allowed. Hearsay rules apply, though there are exceptions for excited utterances, business records, and prior consistent or inconsistent statements. A plaintiff who appears without a lawyer often has trouble navigating evidentiary objections and may have important testimony excluded as a result. The same is true for defendants who underestimate what is at stake. Many people walk into the hearing thinking it is a casual conversation with the judge and walk out subject to a permanent order. Working with a New Jersey Domestic Violence Attorney before the hearing can change the outcome of the case.
Relief That a Court Can Order
A final restraining order in New Jersey does much more than tell the defendant to stay away. The court can grant exclusive possession of a shared residence to the plaintiff regardless of whose name is on the lease or deed. It can award temporary custody of the parties’ children and set a parenting time schedule. It can require the defendant to pay emergency monetary support, child support, or compensation for damaged property and medical expenses. It can order the defendant into counseling or a batterer’s intervention program. It can prohibit the defendant from possessing firearms under both state and federal law.
Some forms of relief are immediate. Others are addressed through subsequent motions. A plaintiff who needs longer-term financial support may need to file in the Family Part for support orders that go beyond the emergency relief built into the restraining order itself.
Consequences a Defendant Faces After a Final Order
A final restraining order in New Jersey is not a slap on the wrist. The defendant’s name and identifying information are entered into a state domestic violence registry that law enforcement can access nationwide. The defendant must submit to fingerprinting and pay a civil penalty. Firearm ownership becomes a federal crime. A final order can affect security clearances, professional licenses, custody disputes, and immigration status. Non-citizens may face removal proceedings depending on the underlying conduct and their immigration category. The order has no expiration date and remains in effect until the court dissolves it on a formal motion.
Dissolving a final restraining order is possible but difficult. The party seeking to dissolve must show changed circumstances and prove that protection is no longer necessary. New Jersey courts apply an eleven-factor test from the case Carfagno v. Carfagno that includes whether the parties have had contact since the order issued, the plaintiff’s current fear, the defendant’s history of compliance, the existence of other restraining orders, and any drug or alcohol issues. Casual claims that the parties are now getting along do not meet the standard.
What Happens If a Restraining Order Is Violated
Any violation of a restraining order is a separate criminal offense. Contempt of a domestic violence restraining order under N.J.S.A. 2C:29-9 is a fourth-degree crime when the underlying conduct would itself be a crime. It is a disorderly persons offense when the violation involves something like a single unauthorized text message. A second offense involving contact in violation of an order carries a mandatory minimum of thirty days in jail. The contempt charge is independent of the original predicate act. A defendant can be acquitted of the original conduct and still face contempt charges months later for sending an email after the order issued.
Plaintiffs sometimes do not realize that they can also be exposed to consequences when they encourage contact. Inviting the defendant to the house or initiating communication does not dissolve the order. Only the court can do that. A defendant who responds to a plaintiff’s invitation is still violating the order, but the plaintiff’s conduct can affect future enforcement and any later dissolution motion.
Common Mistakes That Hurt a Restraining Order Case
Several patterns appear over and over again. Plaintiffs sometimes minimize the abuse when describing it to the judge, perhaps out of embarrassment or fear, and then struggle to add detail later when the defendant disputes the account. Others bring up the worst incident first and forget to mention the smaller pattern of controlling behavior that gives context to the major event. Some show up without their documentation because they assume the judge will simply believe them.
Defendants make their own mistakes. The most common is contacting the plaintiff after the temporary order, often to apologize or explain. That contact becomes evidence of intent to harass and almost guarantees a final order will issue. Another frequent error is appearing at the hearing without preparation or without a lawyer, especially when the defendant believes the allegations are exaggerated. The civil burden of proof is low eno
ugh that an unprepared defendant can lose even a weak case.
Restraining orders cannot be withdrawn without a court appearance. It is advisable to seek the advice of legal counsel familiar with the process. The Law Offices of Anthony Carbone has represented both victims and defendants in these types of matters. Contact us for an appointment to discuss your case.