What are the requirements for filing a restraining order in New Jersey, who do they protect, and do they work? If you have one filed against you, what does it mean, and can you ever get it lifted? All good questions, and exactly the ones you should be asking yourself. Restraining orders are applied for in the Family Court, and issued by Family Court Judges. So why is a criminal attorney writing about this? This area of law is procedurally family law, but is criminal law in it’s substantive analysis, and many of my clients are simultaneously charged with crimes that are the basis of the restraining order. Any person that is the victim of domestic violence may apply for a Temporary Restraining Order (TRO). To qualify as a victim of domestic violence under Rule 5:7A, a person must be a spouse or ex-spouse, or involved or previously involved in a romantic or sexual relationship, or be a family member, or have co-habitated with, or have a child with the defendant. To determine if an act qualifies as domestic violence, an alleged abuser must have committed one of the following crimes under title 2C: Harassment under 2C:33-4, Terroristic Threats under 2C:12-3, Stalking under 2C:12-10, Assault under 2C:12-1, Criminal Mischief under 2C:17-3, Sexual Assault under 2C:14-2, Lewdness under 2C:14-4, Trespass under 2C:18-3, or Burglary under 2C:18-2. During a hearing, if a judge is satisfied that these elements have been proven, he will finalize the restraining order, making it permanent (FRO). So, even though restraining orders are classified as civil litigation in the chancery division, it is my professional opinion that to properly represented clients, whether they are plaintiffs or defendants, an attorney should be highly skilled in criminal defense litigation.
A restraining order is designed to offer the victim of domestic violence protection from further abuse. In essence, a restraining order prohibits the subject of the restraining order, the defendant, from having further contact with the victim physically, verbally, telephonically, by email, by text, or through third parties, and further prohibits the defendant from going to a plaintiffs home or place of employment. Disobeying the order will result in a charge of criminal contempt of court, and the defendant will be immediately taken into custody by law enforcement. A first offense for violating a restraining order is graded as a disorderly persons offense if the action of the defendant was not itself a crime. If the violation of the restraining order is an additional act of domestic violence the offense will be charged as a fourth degree indictable offense, which is much more serious. If another violation occurs, Stalking charges will likely be be brought, and the defendant will be taken into custody and incarcerated. Stalking charges have specific statutory bail restrictions, making it extremely difficult for a defendant to bail out. So, do restraining orders work? It has been my experience as a veteran criminal defense attorney, who has represented many clients in restraining order scenarios, that the vast majority of time they do work. That is because the vast majority of times defendants are rationally thinking people. Despite their actions which brought them to this place, they understand cause and effect, and the consequences if they should violate the order. However, there are indeed rare instances where a defendant is suffering from some form of mental illness, which presents as obsessive thinking and behavior. If that person is also violent, or angry, or hurt, or feels that the victim is somehow responsible for their misery, an extremely dangerous and volatile situation can develop very quickly. A situation with permanent consequences for everyone involved. Yes, I’ve seen it. It is my professional opinion that no piece of paper, no matter what is written on it, can stop a dangerous mentally ill person’s actions, and in that instance a victim should be pro-active about keeping themselves safe: Learning self defense tactics, buying an alarm wired to the police for the house or apartment, getting a guard dog, and as a last resort, yes even buying and training with a gun. To learn about what that type of situation feels like from an actual victim’s point of view, click here, and here.
So, what happens if you’re a defendant and you have a Final Restraining Order that has been put into place, barring you from having contact with a certain person? In addition to the prohibitions referenced above, you will likely forfeit your right to own or possess a firearm of any kind. Law Enforcement will ask a victim if they are aware if a defendant is in possession of firearms. If that answer is yes, the police will seize your weapons and gun purchaser I.D. card. If the Temporary Restraining Order is dismissed, you’ll likely (but not always) be able to get your guns back. If the the Final Restraining Order is granted, a county prosecutor will file for civil forfeiture. Simply put, you aren’t likely going to get them back. Forfeiture can always be fought, but as New Jersey is not a gun friendly state, it can be extremely difficult to do so. What happens if you ever want to remove a restraining order in New Jersey? Can it be lifted? Depending on the circumstances, yes. Carfagno v. Carfagno, 67 A.2d 751, 288 N.J. Super. 424 (1995) establishes 11 factors that a judge may consider in determining if it is appropriate to remove an existing restraining order. Essentially, an attorney will fine a motion and an accompanying certification explaining why the defendant is no longer a danger to the plaintiff, and why the restraining order should be lifted. A hearing will be set (called a Carfagno hearing), and the judge will hear verbal argument supporting the removal of the protective order, and opposing arguments if the removal of the order is being objected to by the plaintiff. To learn more about Carfagno, and the 11 factors, click here.
* Domestic violence is an extremely serious issue. If you are in an abusive relationship, get out now, and get help. There are resources at your disposal, all you have to do is reach out. If you are an abuser and can’t control your anger, or drinking and drug use, and find that you are hurting someone physically or emotionally as a result, I strongly urge you to get the help you need immediately, before it’s too late.