NEW JERSEY RESTRAINING ORDERS & DOMESTIC VIOLENCE
PUBLIC POLICY IN NEW JERSEY
N.J.S.A. 2C:25-18 provides as follows:
“The Legislature finds and declares that domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all social and economic backgrounds and ethnic groups; that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence. It is therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide.
The Legislature further finds and declares that the health and welfare of some of its most vulnerable citizens, the elderly and disabled, are at risk because of incidents of reported and unreported domestic violence, abuse and neglect which are known to include acts which victimize the elderly and disabled emotionally, psychologically, physically and financially; because of age, disabilities or infirmities, this group of citizens frequently must rely on the aid and support of others; while the institutionalized elderly are protected under P.L.1977, c.239 (C.52:27G-1 et seq.), elderly and disabled adults in noninstitutionalized or community settings may find themselves victimized by family members or others upon whom they feel compelled to depend.
The Legislature further finds and declares that violence against the elderly and disabled, including criminal neglect of the elderly and disabled under section 1 of P.L.1989, c.23 (C.2C:24-8), must be recognized and addressed on an equal basis as violence against spouses and children in order to fulfill our responsibility as a society to protect those who are less able to protect themselves.
The Legislature further finds and declares that even though many of the existing criminal statutes are applicable to acts of domestic violence, previous societal attitudes concerning domestic violence have affected the response of our law enforcement and judicial systems, resulting in these acts receiving different treatment from similar crimes when they occur in a domestic context. The Legislature finds that battered adults presently experience substantial difficulty in gaining access to protection from the judicial system, particularly due to that system’s inability to generate a prompt response in an emergency situation.
It is the intent of the Legislature to stress that the primary duty of a law enforcement officer when responding to a domestic violence call is to enforce the laws allegedly violated and to protect the victim. Further, it is the responsibility of the courts to protect victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by ordering those remedies and sanctions that are available to assure the safety of the victims and the public. To that end, the Legislature encourages the training of all police and judicial personnel in the procedures and enforcement of this act, and about the social and psychological context in which domestic violence occurs; and it further encourages the broad application of the remedies available under this act in the civil and criminal courts of this State. It is further intended that the official response to domestic violence shall communicate the attitude that violent behavior will not be excused or tolerated, and shall make clear the fact that the existing criminal laws and civil remedies created under this act will be enforced without regard to the fact that the violence grows out of a domestic situation.” [N.J.S.A. 2C:25-18.]
ACTS THAT QUALIFY AS DOMESTIC VIOLENCE
Under N.J.S.A. 2C:25-19(a), “domestic violence” means the occurrence of one or more of the following acts inflicted upon a person protected under this act by an adult or an emancipated minor:
(1) Homicide N.J.S.2C:11-1 et seq.
(2) Assault N.J.S.2C:12-1
(3) Terroristic threats N.J.S.2C:12-3
(4) Kidnapping N.J.S.2C:13-1
(5) Criminal restraint N.J.S.2C:13-2
(6) False imprisonment N.J.S.2C:13-3
(7) Sexual assault N.J.S.2C:14-2
(8) Criminal sexual contact N.J.S.2C:14-3
(9) Lewdness N.J.S.2C:14-4
(10) Criminal mischief N.J.S.2C:17-3
(11) Burglary N.J.S.2C:18-2
(12) Criminal trespass N.J.S.2C:18-3
(13) Harassment N.J.S.2C:33-4
(14) Stalking P.L.1992, c.209 (C.2C:12-10)
(15) Criminal coercion N.J.S.2C:13-5
(16) Robbery N.J.S.2C:15-1
(17) Contempt of a domestic violence order pursuant to subsection b. of N.J.S.2C:29-9 that constitutes a crime or disorderly persons offense
(18) Any other crime involving risk of death or serious bodily injury to a person protected under the “Prevention of Domestic Violence Act of 1991,” P.L.1991, c.261 (C.2C:25-17 et al.)
(19) Cyber-harassment P.L.2013, c.272 (C.2C:33-4.1).
VICTIM OF DOMESTIC VIOLENCE
Only a victim of domestic violence as defined under the Prevention of Domestic Violence Act can obtain a temporary restraining order.
Under N.J.S.A. 2C:25-19(d), “victim of domestic violence” means a person protected under this act and shall include any person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present household member or was at any time a household member.
“Victim of domestic violence” also includes any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant.
“Victim of domestic violence” also includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.
FILING OF COMPLAINT IN FAMILY PART
Under N.J.S.A. 2C:25-28(a):
“A victim may file a complaint alleging the commission of an act of domestic violence with the Family Part of the Chancery Division of the Superior Court in conformity with the Rules of Court. The court shall not dismiss any complaint or delay disposition of a case because the victim has left the residence to avoid further incidents of domestic violence. Filing a complaint pursuant to this section shall not prevent the filing of a criminal complaint for the same act.
On weekends, holidays and other times when the court is closed, a victim may file a complaint before a judge of the Family Part of the Chancery Division of the Superior Court or a municipal court judge who shall be assigned to accept complaints and issue emergency, ex parte relief in the form of temporary restraining orders pursuant to this act.”
WHERE TO FILE YOUR NEW JERSEY DOMESTIC VIOLENCE COMPLAINT
Under N.J.S.A. 2C:25-28(a), “A plaintiff may apply for relief under this section in a court having jurisdiction over the place where the alleged act of domestic violence occurred, where the defendant resides, or where the plaintiff resides or is sheltered, and the court shall follow the same procedures applicable to other emergency applications.”
HEARING TO BE HELD WITHIN 10 DAYS
Under N.J.S.A. 2C:25-29, “A hearing shall be held in the Family Part of the Chancery Division of the Superior Court within 10 days of the filing of a complaint pursuant to section 12 of P.L.1991, c.261 (C.2C:25-28) in the county where the ex parte restraints were ordered, unless good cause is shown for the hearing to be held elsewhere.”
Bear in mind, however, that this general rule is often violated by the Courts.
BURDEN OF PROOF & CONSIDERATIONS AT HEARING
Under N.J.S.A. 2C:25-29, “At the hearing the standard for proving the allegations in the complaint shall be by a preponderance of the evidence. The court shall consider but not be limited to the following factors:
(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;
(2) The existence of immediate danger to person or property;
(3) The financial circumstances of the plaintiff and defendant;
(4) The best interests of the victim and any child;
(5) In determining custody and parenting time the protection of the victim’s safety; and
(6) The existence of a verifiable order of protection from another jurisdiction.”
DOMESTIC VIOLENCE ACT SHOULD NOT BE ABUSED TO GAIN ADVANTAGE IN OTHER PROCEEDINGS
The New Jersey Supreme Court has acknowledged that “courts must be wary of letting a complainant use the Domestic Violence Act merely to gain an advantage in a matrimonial proceeding.” [Cesare v. Cesare, 154 N.J. 394, 416 (1998).]
TWO-STEP INQUIRY FOR ENTRY OF FINAL RESTRAINING ORDER
Courts have held “that the judge at an FRO hearing must perform two tasks before granting final relief under the PDVA. First, the judge must determine whether plaintiff proved, by a preponderance of the credible evidence, that defendant committed one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a. If the judge finds plaintiff did not meet this burden of proof, the court must dismiss the complaint. But if the court finds a defendant committed one or more of the predicate acts listed in N.J.S.A. 2C:25-19a, the judge must determine whether an FRO is needed to protect the victim.” [A.M.C. v. P.B., 447 N.J. Super. 402 (App. Div. 2016).]
Thus, the victim must first establish that an act of domestic violence occurred. Second, the victim must establish that a Final Restraining Order is necessary to protect him or her from immediate danger or to prevent further abuse.
“This second inquiry, therefore, begins after the plaintiff has established, by a preponderance of the evidence, the commission of one of the enumerated predicate acts upon a person protected under this act by an adult or an emancipated minor. Although this second determination — whether a domestic violence restraining order should be issued — is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse.” [Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006.]
RELIEF AVAILABLE ON ENTRY OF FINAL NEW JERSEY RESTRAINING ORDER
Under N.J.S.A. 2C:25-29(b), “In proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse.”
Additionally, the same statute bars ownership of firearms for those against whom a restraining order has been entered: “Any restraining order issued by the court shall bar the defendant from purchasing, owning, possessing or controlling a firearm and from receiving or retaining a firearms purchaser identification card or permit to purchase a handgun pursuant to N.J.S.2C:58-3 during the period in which the restraining order is in effect or two years, whichever is greater. The order shall require the immediate surrender of any firearm or other weapon belonging to the defendant.” This is a very serious consideration for individuals in certain fields of employment, including police officers. Effectively, the entry of a restraining order prohibits officers (and other who are required to carry a gun for employment purposes) from continuing in that employment.
Finally, the Court may enter a broad variety of additional relief subsidiary to the entry of a Final Restraining Order. Under N.J.S.A. 2C;25-29, “At the hearing the judge of the Family Part of the Chancery Division of the Superior Court may issue an order granting any or all of the following relief:
(1) An order restraining the defendant from subjecting the victim to domestic violence, as defined in this act.
(2) An order granting exclusive possession to the plaintiff of the residence or household regardless of whether the residence or household is jointly or solely owned by the parties or jointly or solely leased by the parties. This order shall not in any manner affect title or interest to any real property held by either party or both jointly. If it is not possible for the victim to remain in the residence, the court may order the defendant to pay the victim’s rent at a residence other than the one previously shared by the parties if the defendant is found to have a duty to support the victim and the victim requires alternative housing.
(3) An order providing for parenting time. The order shall protect the safety and well-being of the plaintiff and minor children and shall specify the place and frequency of parenting time. Parenting time arrangements shall not compromise any other remedy provided by the court by requiring or encouraging contact between the plaintiff and defendant. Orders for parenting time may include a designation of a place of parenting time away from the plaintiff, the participation of a third party, or supervised parenting time.
(a) The court shall consider a request by a custodial parent who has been subjected to domestic violence by a person with parenting time rights to a child in the parent’s custody for an investigation or evaluation by the appropriate agency to assess the risk of harm to the child prior to the entry of a parenting time order. Any denial of such a request must be on the record and shall only be made if the judge finds the request to be arbitrary or capricious.
(b) The court shall consider suspension of the parenting time order and hold an emergency hearing upon an application made by the plaintiff certifying under oath that the defendant’s access to the child pursuant to the parenting time order has threatened the safety and well-being of the child.
(4) An order requiring the defendant to pay to the victim monetary compensation for losses suffered as a direct result of the act of domestic violence. The order may require the defendant to pay the victim directly, to reimburse the Victims of Crime Compensation Office for any and all compensation paid by the Victims of Crime Compensation Office directly to or on behalf of the victim, and may require that the defendant reimburse any parties that may have compensated the victim, as the court may determine. Compensatory losses shall include, but not be limited to, loss of earnings or other support, including child or spousal support, out-of-pocket losses for injuries sustained, cost of repair or replacement of real or personal property damaged or destroyed or taken by the defendant, cost of counseling for the victim, moving or other travel expenses, reasonable attorney’s fees, court costs, and compensation for pain and suffering. Where appropriate, punitive damages may be awarded in addition to compensatory damages.
(5) An order requiring the defendant to receive professional domestic violence counseling from either a private source or a source appointed by the court and, in that event, requiring the defendant to provide the court at specified intervals with documentation of attendance at the professional counseling. The court may order the defendant to pay for the professional counseling. No application by the defendant to dissolve a final order which contains a requirement for attendance at professional counseling pursuant to this paragraph shall be granted by the court unless, in addition to any other provisions required by law or conditions ordered by the court, the defendant has completed all required attendance at such counseling.
(6) An order restraining the defendant from entering the residence, property, school, or place of employment of the victim or of other family or household members of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim or other family or household members.
(7) An order restraining the defendant from making contact with the plaintiff or others, including an order forbidding the defendant from personally or through an agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact with the victim or other family members, or their employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim.
(8) An order requiring that the defendant make or continue to make rent or mortgage payments on the residence occupied by the victim if the defendant is found to have a duty to support the victim or other dependent household members; provided that this issue has not been resolved or is not being litigated between the parties in another action.
(9) An order granting either party temporary possession of specified personal property, such as an automobile, checkbook, documentation of health insurance, an identification document, a key, and other personal effects.
(10) An order awarding emergency monetary relief, including emergency support for minor children, to the victim and other dependents, if any. An ongoing obligation of support shall be determined at a later date pursuant to applicable law.
(11) An order awarding temporary custody of a minor child. The court shall presume that the best interests of the child are served by an award of custody to the non-abusive parent.
(12) An order requiring that a law enforcement officer accompany either party to the residence or any shared business premises to supervise the removal of personal belongings in order to ensure the personal safety of the plaintiff when a restraining order has been issued. This order shall be restricted in duration.
(13) (Deleted by amendment, P.L.1995, c.242).
(14) An order granting any other appropriate relief for the plaintiff and dependent children, provided that the plaintiff consents to such relief, including relief requested by the plaintiff at the final hearing, whether or not the plaintiff requested such relief at the time of the granting of the initial emergency order.
(15) An order that requires that the defendant report to the intake unit of the Family Part of the Chancery Division of the Superior Court for monitoring of any other provision of the order.
(16) In addition to the order required by this subsection prohibiting the defendant from possessing any firearm, the court may also issue an order prohibiting the defendant from possessing any other weapon enumerated in subsection r. of N.J.S.2C:39-1 and ordering the search for and seizure of any firearm or other weapon at any location where the judge has reasonable cause to believe the weapon is located. The judge shall state with specificity the reasons for and scope of the search and seizure authorized by the order.
(17) An order prohibiting the defendant from stalking or following, or threatening to harm, to stalk or to follow, the complainant or any other person named in the order in a manner that, taken in the context of past actions of the defendant, would put the complainant in reasonable fear that the defendant would cause the death or injury of the complainant or any other person. Behavior prohibited under this act includes, but is not limited to, behavior prohibited under the provisions of P.L.1992, c.209 (C.2C:12-10).
(18) An order requiring the defendant to undergo a psychiatric evaluation.
(19) An order directing the possession of any animal owned, possessed, leased, kept, or held by either party or a minor child residing in the household. Where a person has abused or threatened to abuse such animal, there shall be a presumption that possession of the animal shall be awarded to the non-abusive party.”
CRIMINAL PENALTIES ON VIOLATION OF RESTRAINING ORDER
Under N.J.S.A. 2C:25-30, “Except as provided below, a violation by the defendant of an order issued pursuant to this act shall constitute an offense under subsection b. of N.J.S. 2C:29-9 and each order shall so state. All contempt proceedings conducted pursuant to N.J.S. 2C:29-9 involving domestic violence orders, other than those constituting indictable offenses, shall be heard by the Family Part of the Chancery Division of the Superior Court. All contempt proceedings brought pursuant to P.L.1991, c.261 (C.2C:25-17 et seq.) shall be subject to any rules or guidelines established by the Supreme Court to guarantee the prompt disposition of criminal matters. Additionally, and notwithstanding the term of imprisonment provided in N.J.S. 2C:43-8, any person convicted of a second or subsequent nonindictable domestic violence contempt offense shall serve a minimum term of not less than 30 days. Orders entered pursuant to paragraphs (3), (4), (5), (8) and (9) of subsection b. of section 13 of this act shall be excluded from enforcement under subsection b. of N.J.S. 2C:29-9; however, violations of these orders may be enforced in a civil or criminal action initiated by the plaintiff or by the court, on its own motion, pursuant to applicable court rules.”
DISSOLVING A NEW JERSEY FINAL RESTRAINING ORDER
Under N.J.S.A. 2C:25-29(d), “Upon good cause shown, any final order may be dissolved or modified upon application to the Family Part of the Chancery Division of the Superior Court, but only if the judge who dissolves or modifies the order is the same judge who entered the order, or has available a complete record of the hearing or hearings on which the order was based.”
Under Kanaszka v. Kunen, 313 N.J. Super. 600, 606-07 (App. Div. 1998), the Appellate Division held as follows concerning the complete record requirement: “In cases where the motion judge did not enter the final restraining order, we hold the ‘complete record’ requirement of the statute includes, at a minimum, all pleadings and orders, the court file, and a complete transcript of the final restraining order hearing. Without the ability to review the transcript, the motion judge is unable to properly evaluate the application for dismissal…. The failure of defendant to provide the motion judge with a complete record to consider is fatal to his appeal.”
In the State of New Jersey, the entry of a Final Restraining Order (“FRO”) constitutes a permanent injunction. Unlike in virtually every other state of the nation, an FRO in New Jersey has no presumptive termination date. That does not mean, however, that FROs are intended to extend indefinitely in every case. To the contrary, the Court may dissolve or modify a final restraining order upon a mere showing of “good cause.” N.J.S.A. 2C:25-29(d). In 1995, the Honorable Thomas H. Dilts, J.S.C. (Ret.), then sitting in the Somerset County Family Part, interpreted that statutory authority to mean that an FRO may be “dissolve[d] … where there is a change of circumstances whereby the continued enforcement of the injunctive process would be inequitable, oppressive, or unjust, or in contravention of the policy of the law.”
Judge Dilts established the following eleven factors for the Court’s consideration when a defendant moves to set aside an FRO: “(1) whether the victim consented to lift the restraining order; (2) whether the victim fears the defendant; (3) the nature of the relationship between the parties today; (4) the number of times that the defendant has been convicted of contempt for violating the order; (5) whether the defendant has a continuing involvement with drug or alcohol abuse; (6) whether the defendant has been involved in other violent acts with other persons; (7) whether the defendant has engaged in counseling; (8) the age and health of the defendant; (9) whether the victim is acting in good faith when opposing the defendant’s request; (10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and (11) other factors deemed relevant by the court.” Carfagno v. Carfagno, 288 N.J. Super. 424, 435 (Ch. Div. 1995).
These factors “need to be weighed qualitatively, and not quantitatively, to determine whether defendant has met the required burden.” Id. at 442.
The Court, in explaining its decision, noted that “[t]he Legislature intended to protect the victims–not to punish the person who committed the act of domestic violence.” Id. at 434 (citing Trans American Trucking Service, Inc. v. Ruane, 273 N.J. Super. 130, 133 (App. Div. 1994)). Moreover, the FRO’s duration should be “‘no longer than is reasonably required to protect the interest of the injured party.’” Id. at 438 (quoting Trans American Trucking Service, 273 N.J. Super. at (emphasis in original). Notwithstanding, where the need for protection continues, the Court should deny such an application.
In the over twenty years since Judge Dilts first decided Carfagno, his rationale has been adopted and amplified by the Chancery Division and Appellate Division on numerous occasions, including several published opinions. See, e.g., T.M.S. v. W.C.P., 450 N.J. Super. 499, 502 (App. Div. 2017); Finamore v. Aronson, 382 N.J. Super. 514 (App. Div. 2006) (reversing for a “Carfagno hearing”); Kanaszka v. Kanaszka, 313 N.J. Super. 600 (App. Div. 1998); Sweeney v. Honachefsky, 313 N.J. Super. 443 (App. Div. 1998); M.V. v. J.R.G., 312 N.J. Super. 597, 600 (Ch. Div. 1997).
In Kanaszka, the Appellate Division confirmed the statutory requirement that a restraining order may be dissolved “only if the judge who dissolves or modifies the order is the same judge who entered the order or has available a complete record of the hearing or hearings on which the order was based.” Id. at 604 (citing N.J.S.A. 2C:25-29d). “In cases where the motion judge did not enter the final restraining order, we hold the ‘complete record’ requirement of the statute includes, at a minimum, all pleadings and orders, the court file, and a complete transcript of the final restraining order hearing.” Id. at 606.
The Court in Kanaszka also expressly adopted the eleven-factor test enunciated in Carfagno but noted that the factor test is “non-exclusive” and that, in addition, the Trial Court should consider “the previous history of domestic violence between the parties.” Id. at 607. “For example, where there is a stipulation by defendant an act of domestic violence was committed, and the final order is entered, often prior acts of domestic violence are not mentioned or even considered. However, upon a later application for dismissal of that order, inquiry into the history of the relationship and prior acts of domestic violence become important to consider in evaluating the necessity for continued protection.” Id. at 607-08.
The Appellate Division in Kanaszka also “emphasize[d] that not every motion for dissolution of a domestic violence restraining order requires a plenary hearing.” Id. at 608. The movant “has the burden to show prima facie good cause exists for dissolution of the restraining order,” and if he or she is successful, the Court must hold a plenary hearing only if material facts are in genuine dispute. Ibid. In deciding whether a plenary hearing is necessary, “[c]onlusory allegations should be disregard.” Ibid. (citing Lepis v. Lepis, 83 N.J. 139, 159 (1980)).
Case law in New Jersey provides several examples of situations in which the Courts have found it appropriate or inappropriate to dissolve a restraining order. For example, in Carfagno, the Court denied the defendant’s application to dissolve the restraining order for several reasons including, among others, that the restraining order had been entered a mere three years prior, and in the interim, the defendant had been convicted of contempt on two separate occasions. That second conviction for contempt had occurred less than a year prior to the defendant’s application and resulted in a 30-day jail sentence with one year of probation.
Andrew M. Shaw, Esq. is the author of this New Jersey Divorce Guide and the founder of Shaw Divorce & Family Law LLC in Somerville, New Jersey.
ASSOCIATIONS & MEMBERSHIPS:
- American Bar Association - Family Law Section
- New Jersey State Bar Association – Family Law Section
- New Jersey State Bar Association – Appellate Practice Special Committee
- Somerset County Family Law Practice Committee
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