The state of New Jersey protects victims of domestic violence through the use of protective orders, which are more commonly known as “Restraining Orders”. In New Jersey, restraining orders are legal under the purview of the Prevention of Domestic Violence Act, which was first enacted in 1982. In 1991 the law was revised and now includes several different kinds of relationships and felonies beyond sexual violence.
In the New Jersey Code of Criminal Justice, the act can be found N.J.S.A. 2C:25-17 through -35. Violations of restraining orders are set forth in N.J.S.A. 2C:29-9. There are two (2) types of restraining orders in New Jersey — Temporary Restraining Orders (TROs) and Final Restraining Orders (FROs). A judge determines the issuance of both.
What Is a Restraining Order?
Restraining orders restrict one named person from contacting or coming within a certain distance of another named person for a specific amount of time. The orders are preventative measures to protect victims of domestic violence from any future act of domestic violence. The orders provide for no contact for the victim as well as his or her family and/or other relevant persons (such as friends or roommates). The orders also bar the defendant from going to the residence or work place of the victim.
Restraining orders are court-ordered documents and do not automatically expire if the victim and abuser reconciles. If the victim and abuser come into contact while the order is in place — even if the contact is made willingly from both parties, such as attending therapy together — the defendant can still face criminal charges.
TROs in New Jersey
Temporary restraining orders, or TROs, are court ordered to temporarily protect a victim of domestic violence from their abuser. A plaintiff can file a domestic violence complaint and ask for a TRO with the Domestic Violence Unit of the Family Division, located at the County Courthouse, or with a local police department. If filed locally, the complaint must be taken at a police department local to where the plaintiff lives or is sheltered, where the defendant lives, or where the act of domestic violence took place.
If the complaint is made locally, the police will contact a municipal court judge, who will hear the request and may issue a TRO in person or over the phone. If the complaint is made with the Family Division, court staff will meet with the victim to determine eligibility for the TRO. Afterwards, a judge or domestic violence hearing officer will hear the case as soon as possible and may order the TRO.
Once a TRO is ordered, law enforcement officers will serve the defendant with the order and the date of the final hearing, which will be scheduled within 10 days after the TRO is issued. Law enforcement will also seize all firearms in the possession of the defendant.
If the defendant lives in the same residence as the plaintiff, the defendant will be required to leave and stay somewhere else while the TRO is in effect. It does not matter if the defendant owns the residence or was “there first”, he or she will be required to move out.
TROs last until a judge issues a further court order that either extends the length of the original TRO, removes it, or replaces it with a final restraining order.
FROs in New Jersey
Final restraining orders, or FROs, are a more detailed and often permanent replacement of TROs. A judge may choose to order a FRO at a final hearing, which is scheduled within 10 days after a TRO is ordered.
During the hearing, both the victim and the alleged abuser may present testimony to a judge. In order for the judge to issue a FRO, the judge must find the following:
- The parties have a qualified domestic relationship under the Act;
- The defendant committed a predicate act of domestic violence; and
- There is an immediate need for restraints in order to prevent further acts of domestic violence.
If the judge considers all of the evidence and finds all three (3) of the above elements, they will issue a FRO. A judge can still order a FRO even if the defendant is not present at the hearing.
In New Jersey, there is no time limit on FROs. These orders may dictate several different types of protection for the victim, including:
- Protection from future violence
- Prohibiting contact and harassment between the plaintiff and the defendant
- Temporary custody of any minors
- Financial support, including rent or mortgage payments
- Counseling or therapy
- Prohibiting the defendant’s right to bear arms or other weapons
- Temporary possession of personal property
If an FRO is ordered, the defendant will be photographed and fingerprinted for the police database and fined $50 – $500. A defendant will no longer be permitted to legally own a firearm in New Jersey.
The FRO will remain in full force and effect unless and until the Court dissolves the FRO. If the application is made by the plaintiff, the court will question the plaintiff extensively to determine if he or she will be safe without the benefits of a FRO in place. If the judge is satisfied, the FRO will be dismissed.
Violation of TRO or FRO
Once an FRO is issued a violation of the FRO would constitute a criminal offense. It is criminal Contempt of a Court Order, in violation of N.J.S.A. 2C:29-9. If a violation is alleged, New Jersey law requires a mandatory arrest. See N.J.S.A. 2C:25-31. A violation can be as minor as a phone call or text message. A second violation of a FRO calls for a mandatory thirty (30) days in jail, as required by N.J.S.A. 2C:25-30.
What Is Domestic Violence (i.e., a Predicate Act)?
Domestic violence can be a single act or a pattern of physical, sexual or verbal abuse between two parties who are currently or were previously in a romantic relationship, have or are expecting a child together, or have lived together. New Jersey law defined domestic violence as the occurrence of one or more of the following criminal acts between these two groups of people. These are also referred to as “Predicate Acts” of domestic violence:
- Criminal coercion
- Criminal mischief
- Criminal restraint
- Criminal trespass
- Criminal sexual contact
- False imprisonment
- Sexual assault
- Terroristic threats
In New Jersey, gender is not a factor when determining domestic violence cases.
Who Can File for and Be Served a Restraining Order?
The Prevention of Domestic Violence Act protects people who are 18 years or older, or who are an emancipated minor, and who have suffered acts of domestic violence at the hands of:
- A current or former spouse
- A current or former household member
- A person with whom the victim has had a dating relationship with
- A person the victim has a child with, or is expecting to have a child with in the case of pregnancy
Emancipated minors are people under the age of 18 who fall under the following categories:
- Have been married
- Have entered the military
- Have a child
- Is pregnant
- Is declared emancipated by a court or administrative agency
If the abuser is younger than 18 years old and is not emancipated, the case is not considered domestic violence in New Jersey, but is rather a juvenile delinquency case.
Modifying a TRO or FRO in New Jersey
Once a TRO or FRO has been obtained, there is a very specific legal process plaintiffs and defendants must follow to modify the order. Even if the plaintiff and the defendant reconcile, or if the plaintiff chooses to drop charges against the defendant, the restraining order is not automatically dismissed. Either party may file a motion or affidavit to change the order, which a judge must hear in person in court.
If the defendant or plaintiff disagrees with a judge’s TRO or FRO ruling, they may appeal the decision. In addition, either party may also file a motion for reconsideration, which typically happens faster because the same judge who ruled on the restraining order will hear the motion for reconsideration. A motion for reconsideration must be filed within 20 days of the issuance of the FRO. In the case of appeal, the case is sent to the Appellate Division, which is next highest level of court. There, a panel of appellate judges will review the transcripts of the hearing below and review the submissions of your attorney. The Appellate Division will then determine whether the FRO was issued properly or should be amended or overturned.
While New Jersey FROs do not expire, TROs are only temporary. During a final hearing, a judge may choose to dismiss the TRO, extend it or replace it with an FRO. The plaintiff may ask the judge for an extension of the TRO, especially in the case when a court date needs to be rescheduled.
If the plaintiff chooses to drop charges against the defendant, they must formally file a motion for dismissal in the Family Division of Superior Court before a judge. Judges will only dismiss a restraining order if the plaintiff’s testimony clearly indicated the defendant did not coerce or threaten in asking for the dismissal. Defendants may also file for dismissal, which is also known as the “Carfagno motion.” In this case, the judge will consider several factors before ruling, including:
- The plaintiff’s position on the motion to dismiss
- If the plaintiff is still fearful for their safety when near the defendant
- The number of time the defendant has violated the order
- If the defendant has a substance abuse problem
The dismissal of a restraining order does not impact any pending criminal charges the defendant may face, which may occur if the plaintiff filed a request for a restraining order and a criminal charge at the same time.
When a FRO hearing is scheduled, often times the plaintiff does not necessarily want a FRO to be issued. They want to be left alone, but do not want the defendant to have all of the long lasting consequences of a FRO. In those cases, the parties may enter “Civil Restraints”. Entering an order for Civil Restraints is an alternative to entering a FRO. There are benefits and detriments of entering Civil Restraints, which should be discussed and contemplated with legal counsel.
Resources for Domestic Violence Victims
There are several local resources for victims of domestic violence and their children.
In Burlington County, the Providence House/Willingboro Shelter can be reached at their emergency hotline, 609-871-7551.
In Camden County, the Camden County Women’s Center can be reached at their emergency hotline, 856-227-1234.
In addition, victims may call the Statewide Domestic Violence Hotline at 1-800-572-7233.
Obtain Legal Advice From Us Today
The process of obtaining a restraining order can be arduous, and while it can be done individually, it’s recommended both the plaintiff and the defendant obtain legal counsel. The attorneys with Rosenberg | Perry & Associates understand how scary, frustrating and confusing this process may be and welcome your questions.
Our legal team is competent and experienced when it comes to protecting you and your family’s rights, and are prepared to offer our support, expertise and legal representation for both plaintiffs and defendants alike. For a free consultation, contact Rosenberg | Perry & Associates through our website, or call (609) 216-7400.