Domestic Violence and the tools that have been created to prevent continued violence and harassment in New Jersey have become quite effective compared to how domestic violence charges were handled 20 years ago. Today a victim can not only seek a criminal charge, but can also seek a FINAL restraining order in the State of New Jersey which as its name implies is FINAL, forever. Today we will touch upon how to prevent getting a final restraining order in the first place and if you lose and have a final order levied against you, how to remove or dissolve it.
In New Jersey, domestic violence covers criminal acts against your spouse, your partner, your former partner, a household member, someone you once dated and so forth. The criminal acts include: assault, sexual assault, harassment, terroristic threats, homicide, kidnapping, criminal restraint, false imprisonment, criminal sexual contact, lewdness, criminal mischief, criminal trespass and stalking. Many people can be charged with one or two charges, others can face eight charges or more at once! For a restraining order in New Jersey, even if someone is found to have committed an act of domestic violence, that does not mean that the person will automatically get a final restraining order against them. There are many factors in determining if a final order is needed.
Some of the main factors in determining if a final restraining order is needed are:
- Previous history of domestic violence between the parties (this includes threats, harassment, physical harm/abuse.
- The existence of immediate danger to the victim’s person or property.
- Best interest of victim and any children involved.
- Existence of an order of protection from another State.
Now while, the previous history is very important, if one-act alone is egregious enough, a final order can be given. Fighting against the possibility of a final restraining order is difficult at times. Unlike criminal court where you have months if not years to prepare, restraining order hearings are usually heard within thirty days after the service on the defendant. Because of this, the defendant and his attorney must begin gathering evidence to show the defendant in a positive light, to show the defendant defending him or herself (if applicable), any evidence showing instigation or a motive by the victim to push the defendant over the edge. While I know there are people in this world that would harm someone for no reason, I do believe the majority of people who are involved in a fight or argument are in that situation because it takes two to tango and it is not simply one person’s fault.
The Defendant has the right to call witnesses, has the right not to testify, has the right to cross-examine the victim and any of the victim’s witnesses. The standard of proof in a final restraining order hearing in New Jersey is lower than that which is used in criminal court and is called the preponderance of the evidence standard rather than the beyond a reasonable doubt as used in criminal courts.
The other calls and emails I receive fro people throughout the country who have a New Jersey Final Order against them is, how do I get rid of this order that has affected my life in so many ways? There are a few ways to compel a Judge to dismiss the final restraining order and some of the factors the Judge considers in that case are:
- Consent of the victim to lift the order
- The victim’s fear of the defendant;
- Nature of the relationship today
- The number of contempt convictions
- Other violent criminal acts by the defendant
- The good faith reason the victim still opposes the dismissal.
While it is not easy to defend a person in a final restraining order hearing or to have a final order removed, it certainly can be done under the right circumstances. When attempting to vacate a final order, the Defendant must order the transcript from the original final restraining order hearing.
In conclusion, despite what is spread and said on television, New Jersey is tough on domestic violence. If you are a victim or have been accused, we strongly suggest you get legal representation in your area.