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Temporary & Final Restraining Orders in NJ
NJ Restraining Orders – The Basics
There are two types of restraining orders in New Jersey: temporary and final restraining orders. Under the New Jersey’s Prevention of Domestic Violence Act, a domestic violence victim may obtain a restraining order committed by the following:
- a spouse, former spouse,
- a present or former household member,
- someone with whom they have had or are expecting a child,
- or someone with whom they have had a dating relationship.
Important: Only an adult or an emancipated minor may obtain a restraining order.
There are 14 criminal offenses that qualify as grounds to obtain a restraining order under the law. Some of these include the following:
- assault,
- terroristic threats,
- kidnapping,
- criminal restraint,
- false imprisonment,
- sexual assault,
- lewdness,
- criminal trespass,
- harassment,
- stalking.
You may find an overview of the eligibility requirements for a restraining order at the New Jersey State Police website.
As New Jersey Domestic Violence lawyers, we present clients accused of domestic violence in Bergen County and the neighboring three counties, Essex, Hudson, & Passaic County. We also represent victims of domestic violence who wish to get a restraining order against their abuser.
NJ Temporary Restraining Orders
The first type of restraining order is a “temporary restraining order” (TRO). If you are a victim of domestic violence and need immediate protection from your abuser, you can request a temporary restraining order. If a judge finds that it is necessary to protect your life, health, or well-being, he/she will immediately issue a temporary restraining order.
Your temporary restraining order will remain in effect until the day of the final restraining order hearing. Final restraining order hearings are generally scheduled within 10 days of getting your temporary restraining order.
There are times when you may not be able to appear before a judge to get your temporary restraining order against your abuser. In these situations, a judge can issue a TRO upon:
- your sworn testimony or complaint;
- or upon the sworn testimony or complaint of a person who represents you if you are physically or mentally incapable of filing personally.
But the judge must believe that there are urgent circumstances to excuse your failure to appear personally in court.
What to do if the courthouse is closed?
You can:
- file at the municipal court (if it is open);
- call 911 or your local police department.
There is an “on-call” municipal court judge who can issue you a TRO and schedule the court date for the final restraining order hearing. If a municipal judge denies you the TRO, you can re-file your petition in the Superior Court Family Division when the court reopens based on the same incident.
Standard of Proof To Determine A Final Restraining Order
At your final restraining order (FRO) hearing, the standard for proving the allegations in the complaint shall be by a preponderance of the evidence.
Not every allegation of domestic violence rises to the level required under NJ law for a finding of domestic violence.
In some cases, the court has concluded that the defendant’s alleged conduct in placing a note on the plaintiff’s car asking to talk to her could not establish predicate crime for a finding of domestic violence. In this case, the court did not find that putting a note on the alleged victim’s car constituted harassment. As a result, the court did not issue a final restraining order.
In another case, the court did not find that the husband’s alleged conduct, during his separation from his wife, in blocking wife’s driveway for several minutes with his car when picking up children for a visit, giving wife vulgar hand gesture when picking up son for visit, calling wife obscene names, saying offensive things of ethnic and sexual nature about wife’s new boyfriend in child’s presence and kicking wife’s garbage can over when returning son home after visit did not constitute “harassment” or “domestic violence” warranting issuance of a restraining order under Prevention of Domestic Violence Act.
Types of Proof To Show A Final Restraining Order Is Necessary
In issuing a final restraining order, the court shall consider but not be limited to the following factors:
(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment, and physical abuse;
(2) The existence of immediate danger to person or property;
(3) The financial circumstances of the plaintiff and defendant;
(4) The best interests of the victim and any child;
(5) In determining custody and parenting time the protection of the victim’s safety; and
(6) The existence of a verifiable order of protection from another jurisdiction.
The Prevention of Domestic Violence Act (DVA) requires that acts claimed by the plaintiff to be domestic violence be evaluated in light of the previous history of violence between the parties. The judge is not obligated to find past history of abuse before determining that act of domestic violence has been committed. However, the court must at least consider that factor in the course of its analysis.
Under the Prevention of Domestic Violence Act (DVA), trial courts must weigh the entire relationship between the parties and must specifically set forth their findings of fact in that regard. Judges can make this determination by considering evidence of the defendant’s prior abusive acts, regardless of whether those acts have been subject to domestic violence adjudication.
NJ Final Restraining Order Consequences
If a final restraining order is entered against you the judge must grant any relief necessary to prevent further abuse.
A judge in a domestic violence proceeding may issue an order granting any or all of the following relief:
No Contact
(a) Restrain the defendant from subjecting the victim to domestic violence;
(b) Restrain the defendant from “entering the residence, property, school, or place of employment of the victim or of other family or household members of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim or other family or household members.”
(c) Restrain the defendant from making contact with the plaintiff or others, including an order forbidding the defendant from personally or through an agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact with the victim or other family members, or their employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim.
(d) Prohibit the defendant from stalking or following, or threatening to harm, to stalk or to follow, the complainant or any other person named in the order in a manner that, taken in the context of past actions of the defendant, would put the complainant in reasonable fear that the defendant would cause the death or injury of the complainant or any other person.
Behavior prohibited under this act includes, but is not limited to, behavior prohibited under the provisions of [N.J.S.A. 2C:12–10.]
You may have to move out of your place of residence
(a) Exclusive Possession.
Granting exclusive possession to the plaintiff of the residence or household regardless of whether the residence or household is jointly or solely owned by the parties or jointly or solely leased by the parties. This order shall not in any manner affect title or interest to any real property held by either party or both jointly. If it is not possible for the victim to remain in the residence, the court may order the defendant to pay the victim’s rent at a residence other than the one previously shared by the parties if the defendant is found to have a duty to support the victim and the victim requires alternative housing.
(b) Payments of Housing Costs.
You may have to “make or continue to make rent or mortgage payments on the residence occupied by the victim if the defendant is found to have a duty to support the victim or other dependent household members; provided that this issue has not been resolved or is not being litigated between the parties in another action.”
Child Custody and Visitation
(a) Custody.
Award temporary custody of a minor child. “The court shall presume that the best interests of the child are served by an award of custody to the non-abusive parent.”
(b) Parenting Time.
Provide for parenting time.
The order shall protect the safety and well-being of the plaintiff and minor children and shall specify the place and frequency of the parenting time. Parenting time arrangements shall not compromise any other remedy provided by the court by requiring or encouraging contact between the plaintiff and defendant. Orders for parenting time may include a designation of a place of parenting time away from the plaintiff, the participation of a third party, or supervised parenting time.
(c) Suspend Parenting Time.
“The court shall consider suspension of the parenting time order and hold an emergency hearing upon an application made by the plaintiff certifying under oath that the defendant’s access to the child pursuant to the parenting time order has threatened the safety and well-being of the child.”
Compensation
You may have to pay the victim monetary compensation for losses suffered as a direct result of the act of domestic violence. The order may require the defendant to pay the victim directly, to reimburse the Violent Crimes Compensation Board for any and all compensation paid by the Violent Crimes Compensation Board directly to or on behalf of the victim, and may require that the defendant reimburse any parties that may have compensated the victim, as the court may determine.
Compensatory losses shall include, but not be limited to:
- loss of earnings or other support, including child or spousal support,
- out-of-pocket losses for injuries sustained,
- cost of repair or replacement of real or personal property damaged or destroyed or taken by the defendant,
- cost of counseling for the victim,
- moving or other travel expenses,
- reasonable attorney’s fees,
- court costs, and compensation for pain and suffering.
Personal Property
(a) Possession.
The judge may grant either party “temporary possession of the specified personal property, such as an automobile, checkbook, documentation of health insurance, an identification document, a key, and other personal effects.”
(b) Supervised Removal.
Require that “a law enforcement officer accompany either party to the residence or any shared business premises to supervise the removal of personal belongings in order to ensure the personal safety of the plaintiff when a restraining order has been issued. This order shall be restricted in duration.”
No Firearms
You will be prohibited from possessing any firearm or other weapon enumerated in subsection r. of N.J.S.A. 2C:39–1 and ordering the search for and seizure of any such weapon at any location where the judge has reasonable cause to believe the weapon is located.
Appealing A Final Restraining Order
If a final restraining order is entered against me, can I appeal the judges’ decision?
Yes, you have 45 days to appeal the judge’s decision.
Although appeals can be expensive, it’s definitely worth the money to try. If you feel that you didn’t get a fair trial or that certain evidence was irrelevant, an appeal is a way to go.
There are specific steps that must be taken to file an appeal of a final restraining order.
Please do not try to do this alone, get help!
NJ Final Restraining Orders Never Expire
Unlike other states, final restraining orders in NJ never expire. If a final restraining order is entered against you and you lose your appeal, then that final restraining order stays in place until there’s a change in circumstances. This may be one of the following:
- The person whom once feared you (Domestic Violence victim) changes his/her mind and asks the court to remove or lift the Final Restraining Order; or
- You appeal the decision of the court that issued the FRO and win; or
- After plenty of time has passed, you file a motion asking the court to “vacate” or “undo” the original order.
Read more: Need To Remove A Final Restraining Order? Here’s How
Our Experience
You or a loved one need help getting a restraining order or defending against a restraining order. We are here to help. Understandably, you are terrified & have a lot of questions. You’ve heard about the process but feel completely overwhelmed. You want a local attorney near you to represent you.
Mr. Peyrouton is from Ridgewood & represents victims in obtaining a final restraining order against their abuse. He also represents alleged abusers in defending against domestic violence accusations in New Jersey In addition to be an attorney, he is also a published author. His publications are featured in the New Jersey Law Journal.
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Regardless of the situation you are in, we are here to defend & protect you. Whether you are facing a restraining order, drug charge, theft charge, or aggravated assault charge, we are here to help you. Even a DWI case can really complicate your life.
If we can’t get your charges dismissed, we can either get them downgraded or place you in a diversionary program. The point is, our criminal defense lawyers will fight tirelessly to get you the best result possible. Take advantage of our free consultation to see how we can help.
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The best way for us to help you is to patiently listen to your side of the story. Your version of events will serve as the basis for your legal defense. It is during these initial meetings that your memory of the event is fresh in your mind. Why we would rush you during such an important aspect of your case.
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This post is originally from Temporary & Final Restraining Orders in NJ and written by Attorney Alan G. Peyrouton
