Domestic Violence and Restraining Order Attorney
Sadly, domestic violence has become a household term – here in New Jersey and throughout the country. Without a doubt, every act of domestic violence has a correlation to the criminal statutes; however, domestic violence matters are addressed in family court as a civil matter.You should, therefore,recognize why domestic violencesuggests the need for a family law attorney with experience handling restraining orders.
In New Jersey alone, acts of domestic violence are alarming. According to a fact sheet prepared by the National Coalition of Domestic Violence, 1 in 3 women experienced some form of physical violence by an intimate partner.
The numbers do not get much better when it comes to evaluating domestic violence complaints by men. 1 in 4 men maintains that they have experienced some form of physical assault.
A couple of considerations when it comes to domestic violence complaints. In the first place, not every predicate act of domestic violence means physical aggression. In fact, the New Jersey definition of domestic violence is far more expansive.
When a domestic violence victim files a complaint, the ultimate objective is to put an end to the concerning behavior. The includes the pursuit of a restraining order, which is first granted on a temporary basis, referred to as a temporary restraining order (TRO).
The TRO becomes ineffective after a specified date. That said, the court sets a time for consideration of a final restraining order (FRO). The judge considers evidence of the following in determining whether to grant a FRO:
- Do the parties have a qualifying relationship?
- Is there proof of at least one predicate act of domestic violence?
- What is the couple’s prior history concerning domestic violence?
- Would a reasonable person fear for his or her safety and need protection?
Qualifying Relationships for a Restraining Order
In order to pursue a restraining order under the Prevention of Domestic Violence Act, the victims must prove an intimate relationship. The requirements include evidence that the victim and the defendant:
- Share a child in common even if they are not over the age of 18
- Are minors subjected to domestic violence by a spouse, former spouse, or any other person who is a present household member or was at any time a household member
- Have dated
- Were legally married
- Are expecting a child together
Evidence of a qualifying relationship proves essential in obtaining both a TRO and FRO for the prevention of domestic violence.
Predicate Acts of Domestic Violence
In 1991, the New Jersey State legislature signed the Prevention of Domestic Violence Act into law. The statutory references to the Act start at NJSA 2C:25-17. Notably, the definitions of what constitutes domestic violence also correspond to criminal acts. The nineteen acts are listed here, together with the criminal statutes associated with them:
- Homicide N.J.S.2C:11-1 et seq.
- Assault N.J.S.2C:12-1
- Terroristic threats N.J.S.2C:12-3
- Kidnapping N.J.S.2C:13-1
- Criminal restraint N.J.S.2C:13-2
- False imprisonment N.J.S.2C:13-3
- Sexual assault N.J.S.2C:14-2
- Criminal sexual contact N.J.S.2C:14-3
- Lewdness N.J.S.2C:14-4
- Criminal mischief N.J.S.2C:17-3
- Burglary N.J.S.2C:18-2
- Criminal trespass N.J.S.2C:18-3
- Harassment N.J.S.2C:33-4
- Stalking P.L.1992, c.209 (C.2C:12-10)
- Criminal coercion N.J.S.2C:13-5
- Robbery N.J.S.2C:15-1
- Contempt of a domestic violence order pursuant to subsection b. of N.J.S.2C:29-9 that constitutes a crime or disorderly persons offense
- Any other crime involving risk of death or serious bodily injury to a person protected under the “Prevention of Domestic Violence Act of 1991,” P.L.1991, c.261 (C.2C:25-17 et al.)
- Cyber-harassment P.L.2013, c.272 (C.2C:33-4.1)
It is critical to note that defendants are subject to both criminal and civil repercussions when facing domestic violence complaints. In civil proceedings, the victim will seek to pursue a restraining order, specifically within family court.
If the victim fits into any of the role described above and has experienced a predicate act of domestic violence, the court will most likely grant a temporary restraining order (TRO). Ultimately, the TRO will be referred to Family Court to determine whether a final restraining order should be executed against the defendant (FRO).
Although defendants may dispute the validity of the claims leading to FROs, there are other concerns. These include evidence that the victim legitimately fears for his or her safety. Also, prior history factors into the court’s decision in granting the final restraining order.
Prior History of Domestic Violence
A prior history of domestic violence or abuse contributes to the court’s assessment regarding the need for restraining orders. Nevertheless, proofs concerning previous acts may not be necessary in select circumstances. For example, if the defendant put in a gun in the victim’s mouth, the court may distinguish this as a meritorious claim based on its egregious nature.
In many scenarios, your application for a restraining order starts with a report to a law enforcement agency. You should know that the investigation includes requesting information concerning prior acts of domestic violence.
Unfortunately, the past often acts as a predictor of the future. Victims do not always report prior acts. However, unreported incidences are still critical and should become part of the record. Notably, the judge considers prior history when making determinations concerning restraining orders.
Does the Victim Require Protection?Restraining orders come with their share of implications. They can affect existing employment as well as job opportunities. Under New Jersey law, domestic violence convictions result in prohibitions concerning firearms. A restraining order adds confusion to custody and parenting time arrangements. The Appellate Division in Silver v. Silver provides yet another consideration the court looks at in determining whether to grant a FRO. In addition to establishing evidence of the predicate act of domestic violence, further proofs are required. The prerequisite includes fear and the potential for future abuse.
We Can Help
Domestic violence as part of a marriage or some other relationship poses serious issues. Stoialaw assists clients pursuing and defending domestic violence actions. There is no cost for our first meeting. You may call us at 973 539-4364 to learn more. We are here to help. Contact us during this challenging time of your life.