Common Mistakes People Make When Pursuing a Final Restraining Order
Let me preface this by stating that any domestic violence incident is serious. The New Jersey legislature intended that any predicate act within the Prevention of Domestic Violence Act carries consequences of magnitude.
With that backdrop, our courts are in a precarious position when a domestic violence "victim" goes to court on their own (ex parte) to obtain a temporary restraining order. On one hand, the judge considering granting a temporary restraining order must highly consider the victim's initial statements. On the other hand, the judge does not have much time. Please remember, these are urgent proceedings. They occur because an alleged victim walks into a courthouse or a police station in some cases and suddenly needs an order from a judge.
Temporary Restraining Order
We live in a time when our courts are recovering from the pandemic. Our court system is suffering from a state of emergency due to the extraordinarily high volume of cases it must hear and resolve. NJ.COM recently released an article entitled: "We're at crisis level,' official says. N.J. courts still face huge backlog in light of ongoing judge shortage. The duty judge assigned to deciding whether to grant or deny temporary restraining orders for the day has an overwhelming caseload.
The result? I have found that massive amounts of temporary restraining orders are granted without a chance of becoming a final restraining order at trial. In fact, judges are trained to watch out for certain patterns to distinguish between real victims of domestic violence and individuals simply having common issues that are not violent. Parenting issues, for example, often have the misconception of domestic violence.
What Defendants Should Know About Temporary Restraining Orders
A Temporary Restraining Order is the most powerful court order a Family Court judge can give. It has the following powers:
- It immediately removes someone from their residence for an undetermined period. Bear in mind that we are in a state of emergency in the courts. While being removed from your home is devastating, remember that some people who have been removed for months are still awaiting trial.
- A restraining order can separate you from your child(ren) until the restraining order case is complete. While it is possible to file an emergent "appeal" of a restraining order to contest parenting-time provisions, the court will do what is best for the child(ren). If you are recently removed from your home and are not doing well, a judge will likely not want to put a child through the same pain. Immediately obtaining equal or shared residential custody during the restraining order's interim is unlikely, especially if it has yet to be granted in a prior proceeding.
- Any contact, direct or indirect, including through a third party, is considered a violation and could result in an automatic arrest and put you in jail. If the police receive proof that you violated a restraining order, they may arrest you or issue a warrant for your arrest. This could result in you being abruptly arrested, placed in jail, and detained. The law requires a detention hearing within forty-eight hours. However, remember, we are in a state of emergency with the courts. Counties have devised ways to see individuals before a judge in forty-eight hours. If the State is moving for detention, you could be incarcerated before a detention hearing for over five days.
- A TRO could require temporary support to be paid for a spouse, care, and maintenance of a child, or toward anything else a court deems equitable and just. For example, you could be thrown out of your apartment and required to continue paying for a lease even though you cannot legally return home.
Final Restraining Order
Unlike a temporary restraining order, an FRO requires a hearing. Both the victim (applicant) and the alleged abuser may testify in front of a judge. The requirements for a final restraining order include the following:
- The Defendant must have committed a predicate act of violence
- The parties must have a qualified domestic relationship under the Prevention of Domestic Violence Act
- The need for restraints to prevent further acts of domestic violence is immediate
What Applicants (Victims) Should Know When Obtaining Final Restraining Order
Anything you say in court for the FRO needs to be in the temporary restraining order. It is too late at trial to add additional allegations to your final restraining order.
- This exception applies even if you obtained prior temporary restraining orders that are listed in the temporary restraining order but are not separately delineated by the incident in the temporary restraining order.
- Anything you say or said can be used against you. A common misconception is that just because the no-contact order is against the victim, the person seeking the final restraining order can contact the Defendant. The answer is no, and the contact is often used against the alleged victim.
Experienced New Jersey Family Law Attorney
There are many other issues and complexities about the trial itself, such as discovery not being a requirement as it is a summary proceeding. I will endeavor to release more free information regarding the final restraining order process. However, if you or someone you know is contemplating obtaining, or is defending against, a temporary restraining order, please do not hesitate to contact A.Brown Esq. LLC for a consultation at 973-281-2388.