New Jersey Divorce Lawyers Blog
If a person feels that his or her life, safety, or health is at risk because of the acts or threats of another person, he or she may be able to obtain a temporary restraining order from a judge in New Jersey. The Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 et seq is the body of law in New jersey that was enacted, and designed to provide a swift remedy to protect a victim from abuse. Similarly, if you are a defendant that believes you were wrongfully accused of having committed an act of domestic violence, the consequences of having a restraining order entered against you can have long term impact.
Domestic violence is pervasive. It knows no socio-economic boundaries. If you are the victim of domestic violence, or if you have been accused of committing an act of domestic violence, you should call an experienced, licensed domestic violence attorney in New Jersey to zealously represent your rights.
Procedurally, a victim of domestic violence may seek a temporary restraining order (T.R.O.) from a Superior Court judge in the family division of the county court where the alleged act of domestic violence occurred, the county where the victim resides, or where the defendant resides. If the Superior Court is closed at that time, the victim should immediately contact the local police department who will then contact the municipal court judge. The municipal court judge will speak with the victim by telephone to ascertain the facts. The judge will then decide if the victim has described a set of facts that are sufficient to obtain a TRO. If the judge decides to grant the TRO to the victim, the police will prepare and serve the TRO on the defendant immediately. In many instances, the victim is granted the exclusive use and occupancy of any shared residence the two people had occupied up until the alleged act occurred. In addition, the victim is presumptively entitled to temporary custody of any minor child. The court will schedule the matter for a hearing within the next 5-10 days to allow the defendant to tell his or her side of the story. Keep in mind, a TRO, if issued, is frequently issued without the judge hearing the defendant’s version of what may have transpired. Generally, our legal justice system does not so drastically effect a person’s rights and due process without a hearing. However, because of the need to balance the immediate protection of a potential victim of domestic violence, the remedy is swift. To balance that significant impact on a person’s due process whereby a defendant in many instances will be denied the opportunity to be heard before he or she is literally removed from one’s home, the court must hold a hearing fairly quickly as well. This hearing is when the court will decide if the TRO should now become a final restraining order (‘FRO”) if the victim proves his or her allegations or, if the defendant can successfully defend against those allegations, the judge will dismiss the TRO and the restraints against the defendant will be vacated.
In many instances, depending on the potential magnitude of the act(s) of domestic violence complained of, the two parties, typically with the assistance of experienced legal counsel, may negotiate what is called “civil restraints”. Basically, this involves the voluntary agreement of the defendant to such restraints or limitations as to contact with the victim, parenting time/custody, and terms pertaining to use or occupancy of a residence which may have been the primary residence of both parties. But why would a defendant or a victim enter into such an arrangement for civil restraints at all?
There are many considerations to be weighed to determine if entering into civil restraints instead of continuing to a trial over the TRO, to determine if an FRO shall or shall not issue, may be beneficial.
As the defendant, if you were to lose at trial, you end up with an FRO against you. These types of matters are quasi-criminal in nature. That is, it starts out as a civil action but, it can carry criminal sanctions if violated. Those penalties for violating a TRO or FRO can include fines, sanctions, and incarceration! If the relationship is clearly over, and the parties for example are engaged in a divorce or a divorce is imminent, it may be in the defendant’s interest to voluntarily agree to remain out of the residence to avoid the potential for yet another TRO to issue if the parties have a volatile relationship. If an FRO is entered, and if the defendant violates it or is even alleged to violate it, the defendant will be arrested and, depending upon the ultimate determination by a judge at yet another hearing, to determine whether or not the alleged violation occurred, the judge can impose jail time. Sometimes, avoiding these potential situations serves as a basis for a defendant to voluntarily agree to stay out of the residence and to stop communication of any kind with the victim (except to coordinate parenting time or to discuss matters relating to their children, in many cases).
As the victim of domestic violence, the concept of entering into civil restraints in lieu of having a trial by a judge to determine if he or she is entitled to have the TRO made into and FRO can also have its benefits. For example, the victim avoids the potential risk that the acts complained of in the domestic violence complaint, after the judge hears from the defendant at the trial, may not rise to the level sufficient to warrant the issuance of an FRO. Then, the defendant is no longer barred from the residence or from having contact with the victim. Thus, negotiating the specific terms of civil restraints can provide the victim with the certainty of some agreed upon levels of protection.
There are very different remedies to a victim if a defendant may violate civil restraints, as compared with the severity of the consequences that a defendant would suffer if he or she violated a TRO or FRO. Generally, the violation of a civil restraining order would NOT result in the arrest of the defendant, nor would it, by itself, result in incarceration. Teh victim would have to seek enforcement of the provisions of the civil restraints in the family court.
The decision to enter into civil restraints in lieu of pursuing a final restraining order can have tremendous impact on the victim and the defendant. There are many more considerations that must be weighed by both parties before such a significant decision can be made. Such a decision should not be made lightly. It should be made with the advice and guidance of an experienced domestic violence attorney in New Jersey.
If you are involved in a domestic violence case, as a victim or the defendant, you can contact one of the experienced domestic violence attorneys at Goldstein Law Group at 732-967-6777 or you may complete the contact form on this page.