All things considered, obtaining a temporary restraining order (“TRO”) represents a somewhat immediate process. At the TRO hearing date, the judge sets a future date for the parties to appear in court. Next, it’s time to present the evidence for the continuation of the restraints. And, yes, there are occasions when the court doesn’t grant a final restraining order (“FRO.”)
In the first place, the law requires courts to evaluate six factors in determining whether to grant a restraining order. Without question, relationships are critical when it comes to restraining orders. For example, you can’t necessarily get a restraining order against your next-door neighbor in family court. That doesn’t mean there aren’t exceptions based on your relationship.
According to New Jersey laws, married or previously married people qualify for both a temporary and a final restraining order. Meanwhile, the same holds true for couples who date. Parents, siblings, or children who commit acts of domestic violence also meet the criteria. Additionally, individuals living in the same household fall under the laws of protection.
Meanwhile, you should know what acts constitute domestic violence in New Jersey. In NJSA 2C:25-19, the statute breaks down the actions that fall into this category. Notably, there are nineteen separate criminal offenses listed. No doubt many people express surprise that not all are physical acts of violence.
In considering whether to grant a final restraining order, the judge also looks for a history of domestic violence. Additionally, the court seeks to determine the existence of immediate danger to person or property. In some cases, the judge may feel you haven’t sufficiently proved one or more of the factors that entitle you to the order of protection.
Case Appealed When Final Restraining Order Not Granted
Last month, the New Jersey Appellate Division considered a case arising from a Union County matter. In summary, the lower court felt the applicant failed to prove predicate acts of domestic violence. Ultimately,the appeals court disagreed and reversed the decision.
As it stands, the parties met the relationship criteria as far as qualifying for the order of protection. They began dating in 2001 and subsequently married in 2004. Additionally, they have two children together. (The latter in itself also represents a qualifying relationship.)
According to the case history, the male defendant struck the plaintiff when she was eight months pregnant. While this occurrence dated back to 2001, the plaintiff testified other acts of domestic violence continued for eleven years.
Among other things, the defendant pushed and slapped the plaintiff. Reportedly, she was too afraid to call the police. After they were husband and wife, the plaintiff testified that the defendant grabbed her by the throat. He also broke a wall with her head and made it hard to breathe.
When the preceding incident occurred in 2012, the wife went to court for a temporary restraining order. In the meantime, it’s unclear if she chose to continue with the pursuit of the FRO. According to the court’s opinion, the court dismissed the TRO.
Things escalated in 2018 when the defendant threw keys at her and marked her face. According to the plaintiff, her husband dragged her by the hair and raped her during that same year.
In April 2019, the defendant pushed his wife and physically threatened. A month later, the plaintiff said she wanted a divorce. Subsequently, this led to further issues as the husband attempted to forcibly sodomize his wife.
Physical Acts of Abuse Continued
During that same month, the husband again grabbed his wife by the throat and pushed her against the wall. Additionally, the defendant threatened to “chop [her] up, . . . [and] put [her] in a garbage bag. He [said he] wasn’t going to leave any trace [of her.”
According to the testimony, the plaintiff’s niece was outside when the acts occurred. Although she did not see the attack, she heard it. There was more – including the observation that the defendant took the wife’s phone away from her.
When the niece went to check on the plaintiff, she saw evidence of the assault. She, too, was afraid of the husband and did not call the police. However, she took photographs and provided them to her aunt.
In the meantime, the defendant’s version of events differed. He claimed his wife slapped him a couple of times when he accused her of infidelity. Furthermore, the husband admitted that he put his hands on his wife’s shoulders and pushed her a couple of times. However, the defendant somewhat denied he tried to strangle the plaintiff or put her in garbage bags.
After dropping her children off at school, the plaintiff reported the incident and obtained a temporary restraining order. In June, she amended the TRO to include the prior history of domestic violence.
During the FRO hearing, the plaintiff told the court she believed that the defendant would continue to be physically violent against her again. She felt he didn’t know how to control himself.
Remarkably, the judge decided against granting the final restraining order. The court found there were credibility issues regarding the timeline and version of events. Additionally, the court questioned the time stamp on the photographs as well as the niece’s declaration that she was afraid to call the police.
Appellate Division Disagreed with Trial Court
In reviewing family court matters, the Appellate Division routinely speaks to the Family Part’s findings of fact. Meanwhile, the same doesn’t hold true when it comes from the “”interpretation of the law and the legal consequences that flow from established facts . . ..”
The Appellate Division disagreed with the trial court’s findings based on the testimony and photographs. According to the review, the plaintiff presented overwhelming evidence of the predicate act of an assault. Although the photographs were introduced into evidence, the judge decided something was off. And, this was despite collaborating testimony from the niece.
Additionally, the Appellate Division referenced the prior acts of domestic violence. Furthermore, the plaintiff indicated she was in fear. Therefore, the Appellate Division found there was sufficient evidence to require a final restraining order. As a result, the case was reversed and remanded for entry of a protection order.
The necessity for a restraining order creates issues for all involved parties. At the Law Offices of Sam Stoia, we recognize the depth of the problems associated with domestic violence. Call us to schedule an appointment to discuss your circumstances.