Restraining Orders: You Have the Right to Legal Counsel

Posted May 14th, 2019 by .

Categories: Domestic Violence.

Restraining Orders You Have the Right to Legal CounselIt should go without saying; however, it can’t be emphasized enough. When the court executes a protection order, it’s a serious matter. Meanwhile, you absolutely have the right to legal counsel if you’re facing accusations that could result in a restraining order.

Most people equate restraining orders with domestic violence. However, you should know that the court also mandates orders of protection for other reasons. For example, you don’t need to be involved in an intimate relationship to find yourself accused of stalking.

Meanwhile, the Sexual Assault Survivor Protection Act (SASPA) allows victims to apply for protection orders when there is a need.

No doubt you already know that stalking and sexual assault represent violations of New Jersey’s criminal code. However, you might want to take a look at NJSA 2C:25-19 and its description of what constitutes domestic violence. Remarkably, each of the nineteen acts represents a criminal offense.

You might decide there are absolutely no proofs that would warrant the court issuing a restraining order against you. With that in mind, you feel confident that you can appear before the judge without the benefit of legal counsel.

However, there’s an old adage shared among lawyers who decide to go pro se or act on their own behalf. Essentially, they’re referred to as having a “fool for a client.”

The courts consider your right to legal counsel as critical. In fact, a recent New Jersey Appellate Division specifically addresses the issue.

Defendant Wasn’t Informed of Right to Counsel

The Appellate Division decided B.P. v. R.P. on May 9, 2019, in response to an appeal of a restraining order granted in Essex County.  Initials are used to represent the parties to protect their identities, who were previously married. R.P. brought the appeal after the trial court granted a final restraining order (FRO) in favor of his former wife.

B.P. initially obtained a temporary restraining order (TRO) and sought the order of protection to prevent the defendant from further abusing her. According to the case history, the matter involved a lengthy trial that occurred over several non-consecutive days.

During the trial, R.P. decided to represent himself as a pro se defendant. Meanwhile, B.P. retained an attorney to advocate on her behalf.

The basis of the domestic violence complaint centered on the plaintiff’s allegations that her former husband harassed her and their children by email.  B.P. considered the interchange to be of a threatening nature, promulgated by what the defendant viewed as his ex-wife’s failure to respond to child visitation requests.

Ultimately, the trial court executed the FRO based on the predicate act of harassment. R.P. did not agree with the decision and retained an attorney to represent him in the appeal.

Upon Appeal

Upon appeal, R.P.’s legal counsel requested that the Appellate Division consider five separate points in considering a reversal of the restraining order.

In reviewing the issues raised by R.P.’s attorney, one has to wonder. R.P. didn’t object to what might be viewed as procedural errors. After all, he did not have the legal experience to know how to proceed.

Meanwhile, the trial court hearing record is void of something critical. The judge failed to inform the defendant of his right to legal counsel. Additionally, there’s no mention of the serious consequences brought on by entry of a FRO.

In case you’re not certain about the significance of a restraining order, you might benefit from knowing what past judicial rulings say. FROs have “serious consequences to the personal and professional lives of those who are found guilty of what the Legislature has characterized as a serious crime against society.'”

The courts don’t take final restraining orders lightly. In fact, if someone has a protection order naming you as a defendant, you can expect to be fingerprinted. Your name also gets added to a central registry.

When the Appellate Division considered this matter, they focused on the lower court’s failure to advise R.P. to obtain legal counsel. The defendant did not expressly waive his right to seek an attorney. There was also an issue of due process.

The Appellate Division converted the FRO to a TRO and remanded the case for a new hearing with a different judge for consideration.

Contact Us

At the Law Offices of Anthony Carbone, we have over three decades representing clients involved in domestic violence disputes. We are here to help you through the process, which could substantially impact your life. Contact us to schedule an appointment.

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