It is no secret that not all adult relationships are good ones. Domestically violent relationships fall into the “not good” category.

The New Jersey Legislature has declared that domestic violence is a public ill, not only for its victims, but also for children of the relationship, especially if they are witnesses to the violence. The Legislature has cited social science for the proposition that entry of domestic violence restraining orders has a positive effect in curtailing violence and stopping it from escalating. It is an imperfect system, but it works on behalf of victims a lot of the time, in our experience.

Domestic violence victimizes many more women than men, according to social science and statistics. The results can be catastrophic, even deadly. Physical, emotional, and psychological abuse cause many victims to seek a restraining order against the abuser. These orders are available to women and men in heterosexual as well as same-sex relationships. A couple need not be married to secure a restraining order against a significant other, including a dating relationship that has ended.

Residents of New Jersey can seek a restraining order by calling 911 at any time, or going to Family Court in the county seat during regular business hours. On evenings and weekends, a municipal court judge may grant a temporary restraining order, which will be served upon the Defendant. Though not guaranteed, these are often granted.

It is important for the victim to fill out the complaint form carefully; she will be held to her word on the sworn complaint, so it must be accurate. When a victim of domestic violence contacts this office early enough, we help them through the complaint process, either in Municipal Court or at Family Court. If we have not been involved that early, then we will look at the complaint and see whether an amendment is required, in which case the victim must go back to the initiating court and swear under oath to the truth of the amended material. The Defendant is then presented with the Amended Complaint in sufficient time to prepare a defense.

Domestic violence orders are not criminal matters; the charges are civil. However, they relate to the New Jersey Criminal Code, in that a victim must prove, by a preponderance of the credible evidence (and not beyond a reasonable doubt — the criminal law standard), that the Defendant violated one of a number of enumerated criminal statutes, from harassment and stalking all the way up to attempted murder. Unless that proof is demonstrated to the judge’s satisfaction, no restraining order, whether temporary or permanent, will issue.

Apart from the domestic violence proceedings, victims are entitled and even encouraged to proceed against the Defendant on criminal charges. The idea is to protect the victim by entry of the temporary and permanent restraining order, but then to punish the Defendant for the underlying criminal behavior alleged, whether in municipal court or via a criminal indictment for more serious charges. The two processes, criminal/municipal court and domestic violence prevention, may proceed simulataneously — and often do. A victim is not required to press criminal charges if she does not wish to do so (although a police officer who has probable cause to file a complaint may do so even if the victim does not wish to).

The other party will not know about the initial complaint in either Family Court or municipal court, unless it is actually granted. Once granted, it will be served by the Sheriff’s Department or other law enforcement. The other party is deliberately not asked to attend the first hearing, out of concern that they could further traumatize or retaliate against the victim to prevent the matter from ever going to court. The concept is to nip the domestic violence in the bud, and stop it from escalating further.

Temporary and final restraining orders can direct a Defendant to give up guns and other weapons until the matter is finally resolved, and that directive may be made permanent. That is a big problem for police officers and other members of law enforcement who may be charged with domestic violence, because suppression of weapons carrying could be tantamount to job loss.

When it comes to making the TRO permanent, about 10 days later, the process is more involved. Hearings held in Family Court before a Superior Court Judge will look to evidence to determine whether the incident that prompted the TRO was in fact domestically violent under the law. Both parties are required to attend the final hearing. Each party should hire private legal counsel to assist them in this difficult situation.

If a permanent order is entered, the victim is presumed to qualify as the primary custodial parent in any later divorce or Family Court proceedings, so it is particularly important that a Defendant in such cases get good representation.

In the final hearing, the issue is whether a domestically violent event took place? Or was it merely verbal back and forth between two exasperated adults? Was there an element of fear and intimidation involved? Did Defendant strike or threaten the victim? Was there a history of domestically violent behavior? Is the behavior likely to repeat itself? Does the victim require a permanent order for (mostly) her protection? Is there a history of controlling behavior by the Defendant, and a cyclical pattern of domestic violence evident to the court?

Domestic Violence Final Orders also may make provision for child custody, parenting time, financial support for spouses and children, and counsel fees. This is not a divorce, but the order will remain in effect permanently, unless its terms are later modified.

If a Defendant violates a restraining order of any duration, it is a crime, and the Defendant will be charged by the State of New Jersey, arraigned, and put out on bail or incarcerated pending trial, at the judge’s discretion.

While the restraining order itself cannot physically stop an abuser from hurting a person, it provides the legal system a method of tracking an abusive relationship and a means to punish the Defendant’s violation of the court order.

This office represents both women who have been victimized by domestic violence and men who have been falsely accused of it. False accusations, in our view, are akin to false fire alarms. They divert life saving tools intended for real emergencies to false emergencies. And that can have very destructive consequences.

When we are contacted by men who admit they have gone “over the line”, we do our best to negotiate a fair resolution to their situation, without requiring a court decision. Often, if the parties are married, we can “move” the case over to the divorce court and enter mutual civil restraints, thereby taking the stress and uncertainly of the Domestic Violence system out of the equation. Of course, if there are further episodes of domestic violence, either party has the right to go to court and to defend.

If a victim changes her mind and decides not to go for a Final Restraining Order, she has the option of asking to drop the complaint, after sitting down with a domestic violence counselor in the court house to assure that her choice has been made freely and voluntarily. She will fill out a form and sign it in the presence of court staff, and then go out on the record to confirm her wish to drop the case. The Judge will advise her that she has the right to file future charges if she so desires. The matter is then dismissed.

Defendants who remain under long term Domestic Violence Restraining Orders may petition the court to modify or drop the orders based on changed circumstances. There is a method and procedure to bring this before the court and, in appropriate cases, the relief will be granted (example: the parties reconcile and the victim no longer needs protection).

Individuals who are victims of domestic abuse or false accusations of it may be confused about how to protect themselves. These people need lawyers who understand how the legal system works and who can make the process easier and better for them. If we may be of assistance, in either situation, please feel free to give us a call or write us online. We will be happy to help, and you will be glad that we did.

Source: The Jersey Journal, “While not hard to obtain, domestic violence restraining orders aren’t bulletproof,” Michaelangelo Conte, Oct. 21, 2014