If you are in immediate danger, call 911!
A restraining order is ultimately a piece of paper. It is a piece of paper that entitles you to heightened protection and will be strictly enforced by the Courts, but it is a piece of paper nonetheless. A police officer is an armed and trained representative of the State of New Jersey charged with protecting you from harm. In situations of immediate danger, the choice between the two is clear: Call the police.
If you are not immediate danger, you can apply for a temporary restraining order at the Courthouse during its normal business hours. If you need help after hours or on the weekend, the police are (once again) your best bet. A judge will be on emergent duty to handle, among other things, requests for restraining orders. As soon as possible afterward, you should file your application at the Courthouse.
Any “victim of domestic violence” may apply or a restraining order in New Jersey. A victim of domestic violence is defined by N.J.S.A. 2C:25-19d as “any person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member.”
The category “victim of domestic violence” also includes “any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant … [or] any person who has been subject to domestic violence by a person with whom the victim has had a dating relationship.”
“Domestic violence” is defined very specifically by N.J.S.A. 2C:25-19a and includes the following acts:
(3) Terroristic threats
(5) Criminal restraint
(6) False imprisonment
(7) Sexual assault
(8) Criminal sexual contact
(10) Criminal mischief
(12) Criminal trespass
(15) Criminal coercion
(17) Contempt of a domestic violence order pursuant to subsection b. of N.J.S.2C:29-9 that constitutes a crime or disorderly persons offense
(18) Any other crime involving risk of death or serious bodily injury to a person protected under the “Prevention of Domestic Violence Act of 1991,”
The Domestic Violence Act is intended to address acts of violence or threats of violence. A single egregious act may constitute domestic violence even if there is no history of abuse between the parties, and an ambiguous act may qualify as domestic violence based on finding previous acts of violence.
Each of these acts of domestic violence has a very specific legal meaning and an individual statute and body of case law addressing that meaning. If you believe that a person has committed an act of domestic violence against you,or you have been accused of committing an act of domestic violence, we encourage you to schedule a consultation with the DeTommaso Law Group and explore your legal options immediately.
There are two types of restraining orders in New Jersey: (1) temporary restraining orders and (2) final restraining orders. A temporary restraining order, also known as a TRO, is issued on a preliminary basis and often based on little more than the word of the victim. The TRO goes into effect immediately. A final restraining order, also known as an FRO, may be entered only after a hearing has been held where the personal allegedly having committed abuse will be permitted to present a defense.
In a domestic violence action, venue (i.e., which Court will hear the matter) is set in accordance with N.J.S.A. 2C:25-28a and can be either (a) where the alleged act of the domestic violence occurred, (b) where the defendant resides, or (c) where the plaintiff resides. Notably, the New Jersey Supreme Court has held that, in certain circumstances, venue can be laid in New Jersey even where the alleged abuser has never set foot in the State. This is important for victims who have fled to New Jersey seeking refuge.
Absolutely. The normal evidence rules apply. It should be noted, however, that domestic violence actions are considered “summary” actions, which means that there is no right to engage in discovery. For those unfamiliar with discovery, it is the process by which parties exchange information about the case and typically involves the issuance of things like interrogatories (written questions that must be answered), depositions (in-person interviews), and subpoenas (demands for testimony or documentation from non-parties).
What does this mean for your domestic violence proceeding? Although either party may present evidence, neither party will have much opportunity to gather that evidence beforehand. As a result, domestic violence actions often turn on the credibility of the parties. Nevertheless, discovery is occasionally permitted, and the Courts are not required to be oblivious to a party’s claim for discovery in compelling circumstances even though the court rules do not expressly allow it.
A temporary restraining order may be issued immediately. A final restraining order may be issued only after a hearing. Domestic violence proceedings are considered “summary actions,” which means that a hearing will generally take place on a shortened schedule. In fact, N.J.S.A. 2C:25-29a provides that a final hearing must take place within 10 days of filing the complaint (although this does not always occur). After the request for a restraining order is filed, the Court moves as quickly as possible in an effort to protect victims.
At the hearing, which law mandates must occur within ten days of the filing of a Complaint, the Court must make two determinations:
The person requesting a restraining order must convince the Court to answer both questions in the affirmative. That burden must be met by a “preponderance of the evidence,” which is another way of saying that it is more likely than not (anything higher than 50% probability).
In making its determinations, the Court is required to consider several factors:
The Domestic Violence Act is intended to address acts of violence or threats of violence, but the Legislature did not intend that the commission of one of the enumerated predicate acts of domestic violence to automatically mandate the entry of a domestic violence restraining order. Nevertheless, although a pattern of abusive and controlling behavior is a classic characteristic of domestic violence, a single egregious act may constitute domestic violence even if there is no abuse between the parties. Further, an ambiguous act may qualify as domestic violence based on finding previous acts of violence.
The second prong of the determination (“whether, as a result, the Court should enter a restraining order that provides for protection of the victim”) is most often self-evident. Even so, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth above, to protect the victim from an immediate danger or to prevent further abuse.
Restraining orders offer a wide range of protection to victims of domestic violence. In fact, Courts are authorized by law to issue “any relief necessary to prevent further abuse.” This may include one or more of the following:
It is important to remember that this list, although it is quite long, is not exhaustive. As stated above, the Court is free to enter any order necessary to prevent further abuse.
Violations may result in fines, incarceration, or both. Additionally, all of the reliefs generally available on the initial issuance of a restraining order (numbers 1 through 19 above) remain available to the Court on subsequent violations.
Generally, violations of a restraining order are considered a fourth degree crime if the prohibited conduct constitutes a crime or disorderly persons offense. If not, a violation is classified as a disorderly persons offense. This can be thought of terms of elevation. Something that would not otherwise constitute an offense is, by virtue of the restraining order, elevated to a disorderly persons offense. Something that, even in the absence of the restraining order, would constitute a disorderly persons offense is, by virtue of the restraining order, elevated to a fourth degree crime.
If a person violates the order for a second time, the Court must impose a minimum sentence of thirty days in jail. This requirement does not apply if multiple violations occur at the same time.
Yes. Under N.J.S.A. 2C:25-29d, a final restraining order may be dissolved or modified on for “good cause,” but only if the judge has a complete record on which the order was based. Modification or dissolution, however, is discretionary rather than mandatory.
DISCLAIMER: The information presented here is of a general nature only, intended simply as background material, is current only as of the latest revision date in January 2015, omits many details and special rules, is not guaranteed to be accurate or applicable to your case, and cannot be regarded as legal advice. Viewing this information does not create an attorney-client relationship between the reader and the DeTommaso Law Group. We strongly recommend that those consulting the Divorce Guide secure the representation of an attorney, and we require that those consulting our Divorce Guide perform independent legal research and refrain from either acting or failing to act based on this information. Thank you.