The following is an article on how a Final Restraining Order is obtained. Whether you are fighting for or against a Final Restraining Order, having an attorney providing legal counsel is always the best advice. It must be said that receiving the paperwork for a Temporary Restraining Order (“TRO”) in no way guarantees that you will receive a Permanent a/k/a Final Restraining Order (“FRO”). Under New Jersey law, the New Jersey Domestic Violence Statute, whether the judge issues a Temporary Restraining Order or a Final Restraining Order is governed by New Jersey Statutes Title 2C. The New Jersey Code of Criminal Justice 2C § 25-29. In order for a person to qualify for a Temporary or a Permanent (“Final Restraining Order”), they must be
- “Must be 18 years or older or an emancipated minor. However, there is no age requirement if the victim has a child in common or anticipates having a child in common with the defendant, if one of the parties is pregnant; and
- Must have been subjected to Domestic Violence by a present household member, former household member, spouse, former spouse, boyfriend, former boyfriend, girlfriend or former girlfriend.”
A Municipal Court or Superior Court Judge depending upon who is available will hear this testimony. Ten days after the TRO is issued, there will be a hearing on whether a Final Restraining Order (“FRO”) is required. For any determination of whether a FRO will be granted, the Prevention of Domestic Violence Act (“PDVA”) comes into play. Under this Act, a court follows a two-step analysis under Silver v. Silver, 387 N.J. Super. 113, 125-126 (App. Div. 2006). The two prongs of the Silver test provide that a court must determine: (1) that the alleged victim has proven by a preponderance of the credible evidence that one of the perquisites set forth in N.J.S.A. 2C:25-19(a) has occurred; and (2) that the restraining order is required to protect the alleged victim from further acts or threats of violence. The second prong will always be assessed based on an analysis of all the facts – a “totality of the circumstances” analysis.
The Family Part judge in your county will handle the Final Restraining Order hearing. In Domestic Violence cases, the evidential standard of proof is “a preponderance of the evidence.” This is different than a criminal trial, where the evidential standard is ‘proof beyond a reasonable doubt.’ FRO hearings are civil in nature, not a criminal case. The judge will listen to both sides, their witnesses. The judge will listen to all of the testimony offered and will determine the parties and their witness’s credibility (believability). The judge will also receive any evidence, which is presented in a standard evidentiary form, texts must be printed out, voicemails, must be placed on a memory stick. The judge will use the ‘Silver’ test in finding whether the defendant committed the predicate acts, thus satisfying the Silver test’s first prong. The court must also find that the FRO is necessary under the second prong of the Silver test in order to protect plaintiff from further abuse. So first we have to determine whether criminal act took place against the defendant, then second, we have to ask whether an Order is needed to protect the plaintiff from further abuse.
- The First Prong of the Silver Test
In order to receive a Temporary Restraining Order, a person must testify that another person committed one of the following acts under N.J.S.A. 2C:25-19(a was committed against them, ‘predicate criminal acts.’ The act itself must be criminal in nature.
The person offering the testimony must testify to one of the criminal predicate acts. A few of the most common predicate acts set forth in N.J.S.A. 2C:25-19(a) are as follows: (1) assault; (2) kidnapping; (3) sexual assault; (4) criminal mischief; (5) harassment; (6) lewdness; and (7) criminal sexual contact.
Domestic Violence is by a preponderance of the evidence.
A list of the Predicate Acts
Criminal Sexual Contact
Some parties are under the mistaken idea that they actually have to physically assault, or threaten someone’s life in order to receive a FRO. However, a person commits criminal mischief if he or she “purposely or knowingly damages tangible property of another.” For example, if you angrily take a person’s clothes out of a drawer and throw it on the floor or out of the house or angrily rip a phone out of a person’s hand, that may justify the finding of an Assault.
In terms of harassment, a person commits harassment “if, with the purpose to harass another… [he or she] engages in any… course of alarming conduct… with purpose to alarm or seriously annoy such other person.” For example, screaming at them, or bothering her at work, screaming at the children in the marriage may justify the finding of Assault.
- Second Prong of the Test
Again, as stated above, the court must also find that the FRO is necessary under the second prong of the Silver test in order to protect plaintiff from further abuse. One of the main items that are examined in order to determine the necessity of a FRO is the relationship status of the parties. This where the judge will take a look at the totality of the circumstances. Are the parties still together, living together, husband/wife, mother/child, do they share a child, a house? Is this a long-term relationship or a relationship of a short duration with little binding ties? What was the nature of the proven predicate act? Was there physical violence, threats of future violence. What is the defendant’s criminal history, especially in relation to the plaintiff? If you have only just met someone and there are little binding ties and no reason for communication, the court is a less likely to issue a FRO, even if there was some kind of a predicate act (criminal act) proven.
The totality of the circumstances includes:
The previous history of Domestic Violence between the parties, including threats, harassment and physical abuse.
The existence of immediate danger to person or property.
The financial situation of the plaintiff and defendant.
The best interests of the victim and any child.
In determining custody and parenting time the protection of the victim’s safety.
The existence of a verifiable order of protection from another jurisdiction.
After the hearing, a Family Part a judge will either rule in favor of an FRO against a defendant or will deny an FRO in favor of a plaintiff. The judge will base his or her decision on the parties’ testimony, who did the judge find more credible. Should a judge award a party an FRO, the judge may Order that other things be awarded.
A list of the following things may be ordered by the judge in addition to an FRO, include
- Temporary child support to the plaintiff;
- That the Defendant temporarily remove himself from the residence, whether it is rented or owned;
- Temporary turning over of certain property, a car, checkbook, cellphone;
- Monetary compensation, payment of monies to the plaintiff for any damage that the defendant caused;
- Limiting parenting time;
- Change of child custody;
- Restraining the defendant from subjecting the victim to domestic violence, as defined in this act;
- Requiring the defendant to receive professional domestic violence counseling;
- Restraining 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;
- No contact from Defendant;
- Requiring the Defendant to make rent or mortgage payments on a temporary basis;
- Restricting the possession/ownership of any firearm;
- Requiring the defendant to undergo a psychiatric evaluation;
- Where a party has threatened an animal, the handing over of any animal to the non-abusive party.
A Final Restraining Order can have serious affects on your future employment prospects, whether in the government, i.e. the military, law enforcement, schools or in the private sector, certain large companies, hospitals, do not hire people with FROs or any company that deals with childcare, women or the public at large. On the other hand if you feel you do not have enough evidence for a FRO or you feel that an FRO goes too far, there may be a settlement that falls short of a FRO, but still protects both parties. Again, contact an attorney before attending court.
This is a legal article/opinion, does not form any kind of client/attorney relationship.
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