New Jersey Temporary Restraining Orders
A New Jersey Temporary Restraining Order (commonly called a TRO) provides emergency protection for victims of domestic violence. TROs are granted ex parte, meaning only one party (i.e, the victim’s) testimony/allegations are needed for the TRO to issue.
For permanent protection from an abuser, a Final Restraining Order (FRO) is required. An FRO provides powerful and permanent protection from the abuser.
Typically in Hunterdon County, a hearing is scheduled before the Superior Court at 65 Park Avenue in Flemington within 10 days of the issuance of the TRO. This hearing is where the judge will hear testimony and determine whether or not to make the protections and terms of the TRO permanent by “converting” the TRO into an FRO.
The standard of proof required by the victim to obtain an FRO is a “preponderance of the evidence” standard, which is a lower standard than required for criminal cases (which requires proof “beyond a reasonable doubt.”
Basically, a preponderance of the evidence standard means that it is “more likely than not” that the alleged abuse/harassment/threats occurred. All parties (both victim and abuser) are entitled to be represented by lawyers at the FRO hearing.
A common fear which deters domestic violence victims from seeing Temporary and/or Final Restraining Orders is the issue of residence. If the marital home is titled only in the husband’s name, or if both spouse’s names are on a rental lease, the victim often fears she’ll have to be the one to leave.
New Jersey law understands this problem, and the statute specifically provides that regardless of a lease or deed in the abuser’s name, he can still be ordered to either leave the property or pay your rent for an apartment etc. if YOU choose to leave.
A Final Restraining Order can also award custody of children or pets, and award money damages for hospital bills, injuries, and damaged property.
The abuser will also be compelled to surrender any firearms or weapons, and a judge can issue a search warrant for the abuser’s residence so that the police can locate and seize any weapons in the abuser’s possession.
Although the standard of proof to obtain an FRO is not as high as the standard of proof in a criminal case, that’s not to say that getting an FRO against the abuser is “automatic.” This is especially true if the abuser is represented by a lawyer of his own. The hearing for an FRO is like a “mini-trial,” meaning that sworn testimony is taken, you are subject to cross-examination, photo, written (i.e. hospital records), or other evidence may be introduced to the Court, etc. Witnesses, if any, may be called by either party, and of course any witnesses are also subject to cross-examination. Although police reports may be introduced (and the police officer personally called to appear), it is rare that the officer himself or herself actually “eyewitnesses” the abuse. Audio recordings of “911 calls” may also be subpoenaed and offered into evidence. Having your own attorney who is familiar with the FRO procedure is very helpful for the entire process.
In some circumstances, it may be beneficial to negotiate what are called “civil restraints” instead of seeking a Final Restraining Order from the Court. A “civil restraint” is an Order signed by the judge that lays out a code or “contract” of behavior between the parties. Great flexibility is possible in drafting Civil Restraints, including terms of parenting time, division/retrieval of personal property, and other financial issues. The difference between Civil Restraints and a Final Restraining Order is that violation by the abuser of a Civil Restraints order will not result in the abuser’s arrest by police.
Rather, you would file a Motion in civil (non-criminal) court for any damages incurred by violation of the Civil Restraint order’s terms, whereas if an abuser violates an FRO the police can be summoned and will immediately arrest the abuser for violations of the FRO. This is a HUGE difference, and not one to be taken lightly.
So why would anyone want to seek Civil Restraints rather than “convert” their TRO into an FRO (which of course carries the threat of immediate arrest/jail under the New Jersey Prevention of Domestic Violence Act if the abuser violates the FRO)?
Good question. I usually recommend seeking Civil Restraints in some of the following situations:
1. The parties have already moved apart from one another, (i.e, little chance of daily in-person contact),
2. The abuse alleged was verbal rather than physical, or I believe other factors make the chances you will obtain an FRO against the abuser unlikely,
3. The abuser is employed in a position where entry of an FRO might cost him his job, and the abuser’s income is needed to pay child support or the victim’s apartment rent/other expenses (this is because entry of an FRO may cost the abuser his job if he is employed – when an FRO is issued, the abuser is entered into a database, fingerprinted, photographed, etc.
4. There is much more flexibility in negotiating the terms of a Civil Restraints, and significant concessions (financial and otherwise) can often be wrung from the abuser, since you have the threat of following through and seeking the FRO if the abuser doesn’t agree to YOUR civil restraint terms.
5. The terms of the Civil Restraint may provide a nice template or “roadmap” and be a good first step towards ending your marriage. Attorneys often incorporate the terms of Civil Restraint orders into the final judgment of divorce documents. Thus Civil Restraints help establish a new “status quo” which can remain in place up to (and after) your divorce, if you choose to file for divorce from the abuser.
I usually try to prepare Civil Restraints at my office prior to the FRO court date, and send a draft copy of the Civil Restraints to the abuser (or the abuser’s lawyer) a few days before the FRO hearing to see if we can come to an agreement as to Civil Restraint terms. However, it is common to see attorneys hashing out the terms of Civil Restraints in the hallways of the courthouse as well, often writing the terms up by hand on carbon-paper order blanks supplied by the Court. Either way, if the parties agree and a judge signs the Civil Restraints, the terms of same are binding on all parties going forward.
Let’s now take a look below at the New Jersey statute which governs the issuance of New Jersey Final Restraining Orders, N.J.S.A. 2C:25-29 (this is a long statute, I have more attorney commentary at the bottom if you want to scroll down):
- a. 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. A copy of the complaint shall be served on the defendant in conformity with the Rules of Court. If a criminal complaint arising out of the same incident which is the subject matter of a complaint brought under P.L.1981, c.426 (C.2C:25-1 et seq.) or P.L.1991, c.261 (C.2C:25-17 et seq.) has been filed, testimony given by the plaintiff or defendant in the domestic violence matter shall not be used in the simultaneous or subsequent criminal proceeding against the defendant, other than domestic violence contempt matters and where it would otherwise be admissible hearsay under the rules of evidence that govern where a party is unavailable. 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;
- (6) The existence of a verifiable order of protection from another jurisdiction.An order issued under this act shall only restrain or provide damages payable from a person against whom a complaint has been filed under this act and only after a finding or an admission is made that an act of domestic violence was committed by that person. The issue of whether or not a violation of this act occurred, including an act of contempt under this act, shall not be subject to mediation or negotiation in any form. In addition, where a temporary or final order has been issued pursuant to this act, no party shall be ordered to participate in mediation on the issue of custody or parenting time.
- b. In proceedings in which complaints for restraining orders have been filed, the court shall grant any relief necessary to prevent further abuse. In addition to any other provisions, 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 toN.J.S.2C:58-3 during the period in which the restraining order is in effect or two years whichever is greater, except that this provision shall not apply to any law enforcement officer while actually on duty, or to any member of the Armed Forces of the United States or member of the National Guard while actually on duty or traveling to or from an authorized place of duty. 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.
- (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.
- (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. ofN.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).
- (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.
- c. Notice of orders issued pursuant to this section shall be sent by the clerk of the Family Part of the Chancery Division of the Superior Court or other person designated by the court to the appropriate chiefs of police, members of the State Police and any other appropriate law enforcement agency.
- 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.
- e. Prior to the issuance of any order pursuant to this section, the court shall order that a search be made of the domestic violence central registry.
At the law firm of Large, Scammell & Danziger, we have experience in New Jersey Temporary Restraining Orders/Final Restraining Order hearings, and have represented clients of SAFE in Hunterdon and other nonprofit victim organizations at reduced fees.
Call us today at 908-782-5313 if you are a domestic abuse victim seeking a lawyer for a TRO or an FRO hearing. Our fees are very reasonable compared to other law firms in Hunterdon County.
Weekend and evening calls will be promptly returned within an hour or so by the attorney. Our office is only two blocks from the Hunterdon County court house, so clients often park at our office and walk to court with me. I find it relaxing and a good way to “ease stress” prior to a hearing.