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 workplace of the victim.
Restraining orders are court-ordered documents and do not automatically expire if the victim and abuser reconcile. 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.
What Is Domestic Violence in NJ(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, meaning you may file a restraining order against someone of the same sex in New Jersey.
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.
Parents or guardians of a minor, including family and household members, that are being stalked by anyone can file a complaint for a restraining order in Superior Court based on “stalking of a child”. There is no requirement for a conviction for a temporary restraining order to be issued by a judge N.J.S.A. § 2C:12-10.2(c), (d).
Temporary Restraining Orders (TRO) in New Jersey
Temporary ex parte 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. Afterward, 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.
Temporary restraining orders provide the following protections:
- Prohibits a defendant from returning to the scene where the domestic violence took place (except in the presence of a police officer to gather personal belongings at a specified time and date)
- Prohibits a defendant from possessing any firearms and other certain weapons (If the defendant is a law enforcement officer or in the military, they may possess firearms while on duty)
- Police can be ordered to search and confiscate any weapon, including firearms permits, at any location the judge has reasonable cause to believe a weapon is located
- Possession of animals you own or that are cared for by you, the defendant, or child who lives in the household
- A judge may grant temporary custody of children
- A judge may give you exclusive possession of the home you share with the abuser regardless of who is the primary leaseholder or if the home is jointly owned (N.J.S.A § 2C:25-28(j), (k))
Final Restraining Orders (FRO) in NJ
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, mortgage payments, or child support
- Counseling or therapy
- Prohibiting the defendant’s right to bear arms or other weapons
- Temporary possession of personal property
If a 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.
Sexual Assault Restraining Orders
Under the Sexual Assault Survivor Protection Act (SASPA) courts may issue civil protective orders to protect victims of sexual violence from their abusers. A temporary ex parte order (TRO) can be issued under SASPA if it is needed to preserve the health, safety, and well-being of a sexual assault victim. Hearings for a final restraining order commonly take place within 10 days.
If it is found that the victim was subjected to non-consensual sexual contact, sexual penetration, lewdness, or an attempt to commit non-consensual sexual contact a judge may order a final restraining order (FRO) (N.J.S.A. §§ 2C:14-13, et seq). Additionally, if the defendant stipulates that they did harm the victim a FRO may be issued by a judge.
A sexual assault restraining order may be another option in the event you do not qualify for a domestic violence restraining order due to the required relationship to the abuser needed to qualify.
Extreme Risk Protective Orders
Extreme risk protective orders temporarily restrict a respondent’s access to firearms in certain situations to protect them and others (N.J.S.A § 2C:58-24(d)).
An extreme risk protective order can be filed if the respondent is an immediate and present danger of bodily injury to themselves or others by possessing, owning, buying, or receiving a firearm.
Requirements to file for an extreme protective order include:
- A law enforcement officer
- A family or household member of the respondent including:
- Current or former spouses
- Domestic partners or former domestic partners
- Someone currently living with or formerly living with the respondent
- Some who has a child in common or is expecting a child with the respondent
- Anyone who is dating or has formerly dated the respondent (1 (N.J.S.A. § 2C:58-21)
The type of petition you file and the process that will be followed depends on who the petitioner is and if the respondent is a law enforcement officer.
A judge may issue a temporary extreme risk protection order if they believe a respondent poses an immediate and present danger of bodily injury to themselves or others by possessing, buying, owning, or receiving a firearm. You or any witnesses you bring to the hearing may be asked questions by a judge under oath (N.J.S.A. § 2C:58-23(d)). If issued the temporary extreme risk protective order will remain in effect until the hearing for a final extreme risk protection order which must take place within 10 days of the date the petition was filed (N.J.S.A. § 2C:58-24(a)).
Final extreme risk protective orders can be issued after the respondent receives notice and is given the opportunity to be present for the hearing in court. The respondent will have the opportunity to present evidence and give their testimony to the judge. If it is found by the judge that the respondent presents an immediate and present danger of bodily injury to themselves or others by possessing, buying, owning, or receiving a firearm they may issue the final extreme protective order N.J.S.A. § 2C:58-24(d).
An extreme risk protection order will provide the following protections:
- The defendant in the restraining may not possess or purchase a firearm or ammunition
- The defendant may not have any firearms identification permits or cards (N.J.S.A. § 2C:58-26(a))
The final extreme risk protective order will remain in effect until the petitioner or respondent requests the judge end the protective order. If the respondent makes the request to end the protective order they must prove they no longer present danger of bodily injury to themselves or others by possessing, buying, owning, or receiving a firearm (N.J.S.A. § 2C:58-25).
How to Get a Restraining Order in NJ
To get a restraining order in New Jersey follow these steps:
Step 1: Visit the courthouse to Gather the Necessary Forms
Complaints for restraining orders can be filed with the Family Division of your county’s Superior Court in the county where you live, the county where the abuser lives, or the county where the domestic violence occurred or at a local police station.
- Complaints for temporary restraining orders may be filed at NJ Courthouses Monday – Friday from 8:30 AM – 4:00 PM
- Complaints for temporary restraining orders may be filed at police stations Monday – Friday from 8:30 AM – 4:00 PM and weekends
- If a restraining order is needed outside of the regular operating hours one can be filed at Municipal Court if they are open. Another option to get a restraining order after hours is to call the police and they may contact an on-call judge who may issue a temporary restraining order.
When you arrive at the courthouse inform the clerk you are a victim of domestic abuse in New Jersey and you would like to file a complaint against your abuser and would like a temporary restraining order against them.
The clerk will be able to provide you with the forms that you need to file for a restraining order. They may assist you with filling out the forms but will not be able to provide legal advice. The forms may also be available in Municipal Court or state police stations.
If there is an emergency in which you will not be able to appear in court to file for a temporary restraining order a judge may still issue a TRO based on your sworn complaint or the testimony of someone who represents you in the event you are physically or mentally incapable of filing on your own.
Step 2: Fill Out the Forms Carefully
Once you have received the necessary forms you will need to fill them out. The forms will include the complaint requesting the temporary restraining order. On the complaint, you are the plaintiff and the abuser is the defendant.
- Carefully read the forms and ask questions to the staff at the courthouse if you are having trouble understanding anything.
- Provide as much detail as you can about how the abuser (defendant) injured or threatened you.
- Include dates and as much specific information if possible
- Include when and where the abuse or threats took place.
- If you were threatened with a weapon and any injuries sustained.
- Use descriptive language such as hitting, slapping, grabbing, choking, threatening, etc.
- When writing about threats that were made include the words they said to the best of your ability.
Once you have filled out the forms do not sign them until you have shown them to a clerk of court. You may be asked to sign the form in the presence of a notary or judge at the courthouse.
Step 3: The Complaint Will Be Reviewed By a Judge and They May Grant the Temporary Restraining Order (TRO)
The petition for a restraining order will be given to the judge and if they believe you are in immediate danger they can issue a TRO. The order will remain effective until the full hearing has taken place. The full hearing for a final restraining order will usually take place within 10 days of the initial order being granted.
Step 4: The Full Court Hearing
The hearing will provide the victim the opportunity to testify in court to present evidence and witnesses to prove the abuser committed an act of domestic violence against them. As stated above, this hearing generally takes place within 10 days of the temporary restraining order being issued.
The alleged abuser will also have an opportunity to present evidence and testify during the full hearing to defend themselves.
Once both parties have had an opportunity to present evidence and testimony the judge will decide whether or not to issue the final restraining order.
It is vital that the victim (the plaintiff) attend the court hearing. If you do not attend the full hearing, the temporary restraining order will expire and the process will have to be started over. If you cannot attend due to an emergency contact the clerk or courthouse immediately and ask for information on how to get a continuance for a later court date. If a continuance is granted make sure you ask that the TRO be extended to the new hearing date.
In the event the abuser (the defendant) fails to appear at the hearing, the court may issue a default judgment against them and the judge can issue a final restraining order in their absence. The judge may also elect to pick a new hearing date to give the abuser another opportunity to appear in court. If this occurs, ask the judge to extend the TRO.
Having a lawyer to represent you, especially in the event it is known the abuser will have one, can help you as they will have experience in court, restraining order hearings, presenting evidence to prove abuse, and knowledge of the laws in New Jersey.
What to Do If You Do Not Qualify For a Restraining Order
A specific relationship between the abuser and the victim is required to obtain a domestic violence restraining order. If you are a victim of sexual assault you may be eligible for a sexual abuse restraining order.
Keep in mind, although you may not currently qualify for a restraining order, the abuser may still be committing a crime for which you can get a criminal court restraining order in the event they are arrested.
For example, if the abuser is stalking you that is illegal in New Jersey. The law does not require you to know your stalker nor does it require a conviction for stalking to receive a protection order. If the stalker is charged with stalking in criminal court you may receive a criminal court restraining order. This will prohibit the stalker from:
- Contacting you in any way that would annoy or alarm you
- Visiting your home, property you own, work, or any other location specified in the protective order that you visit often (N.J.S.A. § 2C:12-10.1(a)-(b))
Restraining orders do not cover many types of emotional and mental abuse. If you do not qualify for a protective order contact a local domestic violence organization for support. Additionally, you can consult with an attorney to discuss your legal options.
Can You File A Restraining Order on Someone in Another State?
In the event the abuser lives in a different state than you, the judge may not have personal jurisdiction over an out-of-state abuser. This means the court may not have the power or ability to grant an order against them.
There are several ways that a court can have personal jurisdiction over an out-of-state abuser including:
- When the abuser has a substantial connection to your state. They may regularly travel to your state to visit you, for work, to see family, or if the abuser lived in the state but recently fled.
- The act of abuse occurred in your state. The abuser may be sending threatening texts or making harassing phone calls from another state and the messages were read or the call was answered in your state. The judge may decide that the abuse occurred in your state. It is also a possibility that the abuse did occur in your state and the abuser has left the state since.
- If the petition is filed and the abuser is served with the court petition while they are in your state, this is another avenue for a judge to have jurisdiction over an out of state abuser.
In the event none of these situations apply to you it may not mean you can not get a protective order. If you choose to file, you may be granted an order on consent. The judge may also find alternative circumstances that will allow the protective order to be granted.
If a judge in your state refuses to issue an order, you have the option to file for a protective order in the state where your abuser lives. You will likely need to file the petition in person and attend multiple court dates, this could be difficult to do if the abuser lives in a state that is not close to yours.
Moving Out of State With a Restraining Order
A restraining order is still enforceable if you move to another part of New Jersey (N.J.S.A. § 2C:25-28(p)) or another state. This is possible because Federal law provides what is known as “full faith and credit”.
Full faith and credit means that once there is a criminal or civil protection order, it will remain valid in any state you are in. This includes any U.S. territories as well as tribal lands. Having knowledge of a state’s rules for enforcing out-of-state restraining orders may make enforcement easier.
To get more information on the enforcement of your protective order in another state you can contact the National Center on Protection Orders and Full Faith & Credit (1-800-903-0111, ext. 2).
How Do Restraining Orders Work in Public?
Restraining orders will commonly specify that the defendant cannot be within a specific distance of the plaintiff or at locations specified in the protection order such as the plaintiff’s home, place of work, school, or specified locations that the plaintiff visits often.
If you are in a public place the rules can become complicated. If the defendant happens to be in the same place it is best that they leave immediately to avoid violating the protective order.
If the plaintiff of a TRO or FRO attempts to make it appear that the defendant is violating the protective order on purpose the courts may not look favorably on the actions of the plaintiff.
Restraining Orders at NJ Schools
In the event the plaintiff and defendant attend the same school, the school, generally, must comply with criminal and civil protection orders. If you are the plaintiff of a TRO or FRO, you should provide the school with a copy of the order.
Additionally, you should discuss the protection order with school administrators as soon as you can. A Title IX coordinator may be able to provide helpful information.
When speaking with administrators explain the details of the incident that led to you filing for a restraining order and request that the defendant is removed from classes that you both attend. Depending on the school’s policies the defendant may be barred from campus or receive a modified schedule to avoid contact with you.
A defendant in a restraining order should contact a Title IX lawyer and discuss the restraining order with the school. Defendants still have due process rights according to New Jersey state law, Title IX law, and school policies and procedures even if they are in college or high school.
Restraining Orders at Work
You may be in a situation where you are married to, are dating, or have a child in common with a coworker and it is possible that they are capable of being the subject of a domestic restraining order and while working at the same place creating a difficult situation.
Plaintiffs of a restraining order should immediately provide the employer or the employer’s human resources department with a copy of the TRO or FRO. If the terms of the restraining order include the shared office space, both the defendant and the plaintiff may need to discuss the restraining order’s details and how to move forward in a practical way.
Restraining order defendants should make the judge aware that you share a workplace with the plaintiff at the final restraining order hearing. If a defendant does not appear at the final hearing the judge may issue a final order that will prohibit the defendant from the plaintiff’s workplace. This would mean the defendant can no longer go to the workplace. The violation of a final restraining order is a criminal offense that could result in jail time if convicted.
Restraining Order Effects on Employment
As mentioned above a restraining order may have an effect on employment. Generally, there is no reason an employer would be made aware of a restraining order unless they perform a background check that is more detailed than a standard background check that includes a search of the Domestic Violence Central Registry. Employment in New Jersey is at-will, an employer does not need a reason to fire an employee. If they are made aware that you are the defendant in a restraining order they may choose to terminate your employment.
If the nature of a defendant’s employment requires them to carry a firearm they will have to discuss the restraining order with their employer. With a final restraining order defendants are prohibited from possessing or owning a firearm by law. The court may order you to surrender firearms or certain weapons or have a law enforcement officer confiscate them.
The domestic violence database is public, if you have a security clearance or serve in the military it is very likely that they will be made aware of the restraining order filed against you. Even when a TRO expires and there was no FRO issued, the TRO will remain visible in the domestic violence registry.
Restraining Order Immigration Consequences
A restraining order can be filed against someone who is not a U.S. Citizen.
Having a restraining order filed against you may affect your immigration status, green card application, or citizenship application. The government can generally deport someone convicted of a crime of moral turpitude, drug-related offenses, aggravated felonies, firearms violations, or criminal charges related to domestic violence. The restraining order violation does not need to be followed by a conviction for immigration officials to order an individual to be deported.
Domestic violence is defined as an offense that involves stalking, child abuse/neglect, or any crime of violence committed against any individual with who one shares a domestic relationship including a spouse or someone whom the individual shares a child with for immigration purposes. This means if a person assaults the mother of their child they may face deportation.
Restraining orders are civil violations in New Jersey but the violation of a restraining order is a crime in New Jersey and may lead to deportation. If it is alleged that a defendant of a restraining order violated the terms of a TRO or FRO the police are required to arrest them. Even if the violation was accidental they may still face deportation if convicted of violating the restraining order.
If you are facing deportation due to the violation of a restraining order Rosenberg | Perry & Associates has lawyers experienced in immigration law that are prepared to defend you.
Violation of TRO or FRO
Once a 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.
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.
Appealing a FRO or TRO
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 an appeal, the case is sent to the Appellate Division, which is the 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.
Restraining Order Extensions
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 a 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.
How to Dismiss a Final Restraining Order in NJ
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 the 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, oftentimes 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 you do not need a lawyer to file a restraining order, 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.