Domestic Violence Restraining Orders in New Jersey
Everyday citizens of New Jersey are filing for temporary
restraining orders or thinking about doing so due to domestic violence. Many
people think that “domestic violence” only relates to abuse by physical harm;
this is simply inaccurate. Any 1 of 14 crimes can lead to a final restraining
order being issued. Crimes like
trespass, stalking, and harassment can occur without any physical harm at all
Prosecuting or defending against an allegation of domestic
violence is a stressful and emotional time. The process can be confusing,
scary, and, at times, expensive because there is no right to a public defender
in these cases.
The Prevention of Domestic Violence Act, outlines the
procedures that must occur from the initial complaint through trial to
determine whether final restraints should issue. The information below explains the process
that takes place in New Jersey before a Final Restraining Order can be entered.
A person who believes they are a victim of domestic violence can go to their local police department or county court and file a complaint. In order to be a protected person under the Prevention of Domestic Violence Act you must be 18 or older and have subjected to domestic violence by a spouse, a former spouse, a present or former member of your household, someone with whom you share a child, or have had a dating relationship with.
The Prevention of Domestic Violence Act is triggered for 14
different crimes and disorderly persons offenses. These include homicide, Assault, terroristic
threats, kidnapping,
criminal
restraint, false
imprisonment, sexual
assault, criminal
sexual contact, lewdness,
criminal
mischief, burglary,
criminal trespass,
harassment,
and stalking.
In Order to issue temporary restraints the reviewing judge
must find that there is probable cause that an act of Domestic Violence
Occurred and that the victim is protected under the Act. In such instances, the
Judge will enter Temporary Restraints.
Upon finding that probable cause exists that an act of
Domestic Violence has occurred and that the alleged victim is protected under
the Act, the judge will sign an Order imposing Temporary Restraints. Such
Orders provide various restrictions on the defendant including contacting the
victim, going to their place of employment, going to their home (including the
defendant’s home if the parties live together), possessing weapons, and even
seeing any children the parties have together.
A Temporary Restraining Order will be served on the defendant by a law
enforcement officer.
Step Three: Trial.
The Temporary Restraining Order will set forth a hearing
date within 10 days of entry of the Order for a determination to be made by the
Court whether an act of Domestic Violence in fact occurred and whether the
victim requires the protection of final restraints. The final return hearing is essentially a
trial without a jury. The Court will
hear testimony, review evidence, and make a ruling. As plaintiff has the burden of proof, they go
first. The defendant will have the
opportunity to cross-examine any witnesses that the plaintiff brings
forward. Typically the plaintiff will
testify but it is not required. At the
close of the plaintiff’s case, the defendant will have an opportunity to
testify, call witnesses and offer evidence.
Once the defendant rests, the court may allow brief closing arguments
before making its decision.
Final Restraints
It is important to remember that in New Jersey if the Court
enters a Final Restraining Order, it is permanent. It will stay in place forever, unless the
Court finds a reason to modify it or vacate it.
It is rare that a Court in New Jersey will ever vacate a restraining
order over the objection of the victim. Final
Restraints will prohibit that person from possessing weapons, communicating
with the plaintiff, or traveling to certain areas. A final restraining order could prohibit you
from returning to your own home.
How an Attorney Can Help
It is important to remember that final restraints will part
of a person’s record and may come up on background searches. If you are a
victim of domestic violence and want a Final Restraining Order of if you are
defending against an accusation of domestic violence, hiring an attorney
experienced in handling these materials is crucial.
A Final Restraining Order hearing is essentially a trial,
and your attorney should be experienced in trial work and domestic violence
trials specifically. A competent
attorney can help gather evidence, line up witnesses, cross-examine opposing
witnesses, prepare you for your testimony, file motions, and make arguments to
the Judge encouraging either entry or dismissal of the restraints. Put simply, they can help you win your case.
