Temporary vs. Final Restraining Orders
Unfortunately, when some relationships begin to deteriorate, violence between the parties is a factor. Domestic violence is all too common in New Jersey, but the family courts have tools to help victims of domestic violence get some protection as the case progresses, through restraining orders. There are temporary restraining orders (TRO) and final restraining orders, and each one has a distinct purpose and scope.
Before a TRO is granted, the victim must demonstrate to the court that an act defined as domestic violence in the state of NJ was committed, plus the act must have caused them to fear for their safety and welfare. Domestic violence is statutorily defined in a number of ways, including assault, kidnapping, terroristic threats, harassment and stalking, among other things. In order to file for a TRO under the statute, the victim must be at least 18 years old or an emancipated minor, unless the victim has a child or is pregnant with the defendant. The act must have been committed by a household member (past or present) or someone who either was or is in an intimate dating relationship with each other. If these factors are present, then the victim is entitled to request a TRO from the court.
Getting a TRO is usually the first thing a victim will pursue in a case involving domestic violence. These orders are issued based on a lower standard of evidence than that of a final restraining order. All that is required is for the judge or hearing office to believe that an act of domestic violence occurred. A victim can file for a TRO, although obtaining a lawyer during this process will be helpful for a variety of reasons. Should they choose to represent themselves, then the victim can file at the Domestic Violence Unit of their local courthouse throughout the week from 8:30 a.m. to 3:30 p.m. If the incident occurs outside of these hours, or on the weekend, then the victim can lodge their complaint with their local police department.
When telling the clerk or law enforcement officer about the incident, it is important to be as detailed as possible. If there are photos of bruises or property damage, bring them along. Take note that, if a police officer notices visible signs of injury, then they will also file a criminal complaint against the defendant. Then, a hearing officer or judge will hear the allegations and determine whether or not a temporary restraining should be issued. The defendant will not have notice of this hearing and will not be present. Once the TRO has been issued, a final hearing will be set within ten days of issuance.
There will be a secondary hearing for the final restraining order, when the judge has to decide if a restraining order should be implemented permanently. The defendant will likely be present at this hearing to defend themselves against the charges. This can be incredibly overwhelming and intimidating to the victim, and it is helpful to bring along an attorney who can help you make your case. A judge must find, with a preponderance of evidence, that domestic violence happened. This means that, on balance, it seems more likely that it occurred than not. These hearings are more thorough than that of a TRO: each party can call witnesses, submit exhibits and evidence, and take the opportunity to cross-examine each other. The judge may also ask various questions of the parties and witnesses. Once all the evidence has been submitted, the judge must decide if a restraining order should be issued. This means that a determination will be made as to whether domestic violence happened, if the victim is reasonable in their fear, and if a restraining order will be necessary to ensure their protection.
Once a final restraining order is issued, the judge can decide what kind of relief the victim is entitled to. These are often more tailored than relief found in a TRO, which essentially prevents the defendant from having contact with the victim and their children, including staying in the same location. A victim can obtain multiple kinds of relief. A court can forbid contact with the victim or being in close proximity to their work or business. Often, courts will make arrangements for the financial support of the victim, including ordering the defendant to pay for their rent or other bills. Additionally, if there is a child involved, the court will usually make arrangements regarding custody or visitation
The order will remain in place unless either party asks for its removal, at which point the court will revisit the issues and conduct a further hearing to determine if removal is warranted. If the plaintiff/victim is the one requesting its removal, the court will need to make sure that the plaintiff actually wants its removal. A judge might involve a domestic violence counselor to question the plaintiff, or the judge may speak to the plaintiff directly to determine the authenticity of the request. This is done because there is a chance the defendant has exerted pressure on the victim to get it removed.
If a defendant violates the terms of the restraining orders, whether final or temporary, this can result in an arrest. Violations of these orders are considered to be criminal offenses and can result in jail time in some cases. If the defendant violates portions of the order which have forbidden them from having contact with the victim or children, then the police can intervene and file criminal charges. If, on the other hand, the defendant violates the order dealing with the financial aspects, then unfortunately the order can only be enforced civilly through the family courts. The terms of these orders will typically be adopted into final court orders and divorce decrees if the couple is proceeding with a marriage dissolution.
If you have questions on how a temporary restraining order differs from a final restraining order, and how to obtain either one, get in touch with Peter Van Aulen today for a free, initial consultation at (201) 745 – 8400.