Grounds for Restraining Orders
A restraining order is obtained by a victim of domestic violence committed by a spouse, significant other, member of the household, or someone with whom they had a former relationship of this type. These orders are designed to prevent the alleged abuser from contacting the victim again, and while the provisions and circumstances vary, there are commonalities across the cases. There are two kinds - a temporary restraining order and a final restraining order.
Getting a temporary restraining order in NJ is easier to obtain than a final one, as it has a more flexible evidentiary basis, and the judge must simply have a sufficient basis to believe that domestic violence happened. Usually, the victim must simply have specific allegations against the defendant for the order to be issued. The defendant must have committed one of the acts defined in the New Jersey Domestic Violence statute, which has 14 grounds. These are also crimes, and range from murder and assault to stalking, trespass and harassment. New Jersey also considers any other crime involving risk of death or seriously bodily injury to a protected person as a domestic violence act, and could thus be eligible for a restraining order in NJ . Basically, the grounds to obtain a restraining order in NJ are broad, in order to encourage a victim to request protection for any abuse he or she might be receiving.
One of the most common grounds to get a restraining order in NJ is harassment. Harassment is shown when someone communicates to another person in offensively coarse language, or at extremely inconvenient hours, with the purpose to harass another, or commits an offensive touching such as kicking or shoving with the intent to harass, or engages in any other alarming or seriously annoying conduct. Given this definition, harassment cases are fact-intensive. In one case, Tribuzio v. Roder, the found harassment when the defendant, who was angry with the victim for rejecting him, used coarse and offensive language, blocked her car, and had a history of multiple unwanted contact with the plaintiff. As a note, while a history of domestic violence is persuasive for the court, a single act can be enough to grant a final restraining order in NJ, depending on the severity of the act. In Cesare v. Cesare, the defendant's actions of mailing graphic pornography to someone and threatening to send them to the plaintiff's son and employer were egregious, constituted harassment, and warranted a final restraining order.
To successfully petition the court for a restraining order, the victim must be someone who is either 18 years or older, or an emancipated minor. An emancipated minor includes someone who is married, has entered the military, has a child, is pregnant, or is otherwise declared by a court or agency to be emancipated. If the judge is satisfied that the defendant has committed an act of domestic violence, then he or she may sign a temporary restraining order, which could do a number of things to prevent the defendant from having contact with the victim. Usually, there are geographic limitations on the defendant, preventing them from returning to the scene of their acts, owning a firearm or weapons, and from having any contact with the victim or their relatives in person, telephone or even in writing. This could include people working on the defendant's behalf, such as family or friends trying to reach out to the victim. Usually, the defendant will not be present at the initial determination of a temporary restraining order, but another hearing will be held within 10 days of the order to determine whether a final restraining order should be issued.
To get a final restraining order in New Jersey, both parties will attend the hearing, and either can be represented by counsel. Even though the grounds for a restraining order are actually crimes, the standard of proof to get a restraining order is lower than what would be required in a criminal trial, needing only a preponderance of the evidence that the act occurred, rather than beyond a reasonable doubt. Basically, the victim has to show that it is "more likely than not" that the defendant did what has been accused. The hearing is a full evidentiary hearing, with testimony, photos, proof of phone calls and text messages. The court will hear both sides and arguments, and when determining whether a final restraining order should be granted, the judge must determine whether an act of domestic violence occurred, whether a prior history of domestic violence exists, and if the victim is in reasonable fear for their safety such that a restraining order is necessary. In addition to these factors, the Court can also consider the financial situation of the parties, whether there are any children involved and what that child's best interests are. If the judge determines that a final restraining order is necessary, he or she will grant one and then determine what kind of protections will be included. The relief is the same as that of the temporary order, and the final restraining order will be given to the police department in the city where the victim resides. The defendant will also be fingerprinted, and have a record that he or she committed an act of Domestic Violence, which could have serious ramifications for future employability or tenancy.
If the defendant violates the restraining order in any way, they can be immediately arrested. Violations of either kind of order - temporary or final - are considered criminal offenses, and sometimes can even be accompanied by jail time. So, even though it is basically a civil matter, and restraining orders in NJ are obtained through civil court, it can quickly become a criminal issue with criminal punishment.
The grounds to get a restraining order in New Jersey are broad, and it's easy to see why. In a 2003 review from the New Jersey Domestic Violence Fatality Review Board, it found that there was usually a history of domestic violence including police reports, guns and firearms were almost always used in said fatalities, and in most homicide-suicides, it was perpetrating men who killed their intimate partners. Domestic violence is a serious issue, and the law in NJ has, as a necessity, made it easier to obtain a restraining order to protect potential victims of domestic violence.
If you have need advice on getting a restraining order in NJ, or have been served with one and need help, call the Law Offices Peter Van Aulen at 201-845-7400 for a free comprehensive in office consultation.