Domestic Violence FAQs
What kind of conduct constitutes domestic violence?
Under New Jersey law, domestic violence means the occurrence of one or more of the following acts: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, and stalking.
Where can I obtain a Temporary Restraining Order?
During regular court hours, a victim may file a complaint with the clerk of the Family Part of the Superior Court. During times when the Superior Court is closed, such as evenings, weekends, or holidays, a victim may contact the police department and attempt to obtain an Order through a Municipal Court judge.
Am I automatically entitled to a Temporary Restraining Order?
No. Before a court can issue a TRO, the court must find that an act of domestic violence has been committed and that restraints are necessary to protect the life, health, or well being of the victim; that the victim is in danger of further domestic violence, or upon good cause shown.
In addition, there must be some kind of domestic relationship between the parties. In order to qualify, one must be at least 18 years of age or an emancipated minor, and be subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member. A 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. Finally, any person who has been subjected to domestic violence by a person with whom there was a dating relationship will qualify as a victim.
What happens after a Temporary Restraining Order is entered?
A hearing is usually scheduled within 10 days after a TRO is issued to determine whether the TRO shall be converted to a Final Restraining Order. At this hearing, the court may hear testimony from both parties as well as witnesses. The victim must prove his or her allegations by a preponderance of the evidence.
The court shall consider, but not be limited to, the following factors: the previous history of domestic violence between the parties; the existence of immediate danger to person or property; the financial circumstances of the parties; the best interests of the victim and any child; in determining custody and parenting time the protection of the victim's safety; and the existence of a verifiable order of protection from another jurisdiction.
What kinds of relief can I expect if a Final Restraining Order is issued?
The Court has the authority to issue various forms of relief and the list below is meant to be illustrative and not exhaustive.
The Court may restrain the defendant from entering the residence, school, or place of employment of the victim or of other family or household members of the victim. The Court may also restrain the defendant from making any kind of contact with the plaintiff or others, or causing a third party to make harassing communications to the victim or others.
The Court has the authority to grant the victim exclusive possession of the residence, regardless of the legal ownership or whose name the lease may be in. (This does not affect title or interest to any real property held by either party or both jointly. In other words, the abuser may be ordered out of the marital home, but if the abuser's name is on the Deed, he does not lose his ownership interest in the property.)
The Court also has the authority to address the issue of temporary custody of the children. There is a presumption that the best interests of the children will be served by an award of custody to the non-abusive parent.
The Court may order the defendant to pay ongoing support for the victim and the children. The Court can also award the victim compensatory damages (including attorneys fees and medical expenses) and punitive damages. The Court can order the defendant to continue to make rent or mortgage payments and to surrender specific property i.e. a car or checkbook to the victim.
The Court may order a law enforcement officer to accompany either party to the residence or shared place of business to supervise the removal of personal belongings in order to ensure the personal safety of the victim.
Finally, the Court may order law enforcement personnel to seize any weapons the defendant may possess.
How long does a Final Restraining Order remain in effect for and What factors might a Court consider in dissolving it?
Unlike some other states, a New Jersey Final Restraining Order does not expire after a certain period of time but rather remains in effect indefinitely. Upon "good cause" a final Order may be dissolved or modified upon an application to the Court, but only if the judge who dissolves or modifies the order is the same judge that entered it, or has available the complete record of the hearing or hearings on which the order was based.
In considering whether or not to dissolve or modify a Final Restraining Order, the Court can consider such factors as whether the victim has consented to lift the Order; whether the victim fears the defendant; the present nature of the relationship between the parties; the number of times that the defendant has been convicted of contempt for violating the order; whether the defendant has a continuing involvement with drug or alcohol abuse; whether the defendant has been involved in other violent acts with other persons; whether the defendant has engaged in counseling; the age and health of the defendant; whether the victim is acting in good faith when opposing the defendant's request; whether another jurisdiction has entered a restraining order protecting the victim from the defendant and any other factors deemed relevant by the Court.
Contact experienced divorce lawyer in New Jersey, Jeffrey R. Brown to represent and guide you through this difficult time.