Terminating a Restraining Order
In New Jersey, Restraining Orders in domestic violence matters are governed by the Prevention of Domestic Violence Act, and they are taken very seriously. Violating these orders will result in fines or incarceration or both. If there is a legitimate basis for terminating the Restraining Order then you should act to terminate it.
If the couple involved in the Restraining Order reconcile, the order can be terminated. Under the same rationale, if both people consent to termination of the order, it can be terminated. If the person seeking the order wants to withdraw it, the order can be withdrawn. In all of these instances, you need to take action for termination of the order to assure cannot be used for the purpose of a claim that you have violated the order.
When the person having the Restraining Order wishes to have it terminated, the Court must determine whether that decision is being made voluntarily. The same would be the case if both parties consent to the termination of the Restraining Order or on reconciliation.
The hearing required for these determinations, and for circumstances where the restrained party is seeking termination or modification of the Restraining Order is referred to as a Carfagno Hearing, based on the first case that articulated the factors to be considered in making these decisions. Specifically, whether the party seeking termination has established “good cause” for terminating the Restraining Order. Carfagno v. Carfagno, 288 NJ Super. 424 (1995).
The Carfagno factors, those used by the Court in making a decision whether or not to terminate the order are:
- Consent of victim to lift the order must be voluntary: if it is, this is the only consideration.
- The victim’s fear of the defendant: would a reasonable victim in a similar situation fear the defendant
- Nature of current relationship between the parties: does the defendant still exercise control over the victim, through a child in common or otherwise
- Contempt convictions: convictions are considered indicative of the defendant’s efforts to continue exercising control over the victim
- Alcohol and drug involvement: believed to be a good indicator of victim needing continuing protection
- Other violent acts: violent acts against others may show the victim needs continued protection
- Whether defendant has engaged in domestic violence counseling: successful completion of a program may indicate a break in the cycle of power and control believed to be a primary factor in domestic violence
- Age/health of Defendant: consideration of age or infirmity, or lack thereof
- Good faith of victim: this consideration is the good faith in opposing or agreeing to termination
- Orders entered in other jurisdictions: whether an order elsewhere already protects the victim
- Other factors deemed relevant by the court: factors may be raised by the parties, that the evidence presents to the court or considerations the court deems appropriate under the circumstances. Ibid, 435-442.
These factors are considered and weighed by the court in each case to determine whether it is appropriate to terminate, or modify, a Restraining Order.
If you need to discuss terminating or modifying a Domestic Relations Restraining Order, call the Law Offices of Peter Van Aulen for a free initial consultation at 201-845-7400.