Domestic Violence and Restraining Orders

Domestic Violence  

In New Jersey, as in every other state, domestic violence continues to be an issue in many relationships. It is also referred to as domestic abuse, spousal abuse, and battering. Offenses in this category are covered by the New Jersey Prevention of Domestic Violence Act of 1991. The Act did not create a new crime. The Act created new procedures for law enforcement to follow in domestic violence cases and additional remedies for victims of domestic violence. Domestic violence can result in criminal charges being filed against the abuser and/or a civil complaint for a restraining order. If you are a defendant, it is essential that you obtain an attorney to represent you in both proceedings. Likewise, a victim of domestic violence should obtain an attorney to represent him or her in the restraining order proceeding.

Domestic violence usually involves some sort of physical, sexual, verbal, emotional or psychological aggression against a spouse, girlfriend or boyfriend, although other relationships can qualify. Arguments between spouses and intimates can escalate and lead to ill-advised acts, especially if alcohol or drugs are involved. During the argument, you could unexpectedly lash out and strike your girlfriend or spouse, which can lead to serious legal consequences. Sometimes, accusations of domestic violence are the product of an enraged or vengeful spouse or someone who is seeking an advantage in a custody dispute. You can lose custody of your children and have serious restrictions placed on visitation rights if you are charged with criminal domestic violence.

If you have been charged with domestic violence, it is essential that you immediately contact a criminal defense attorney. If you are a victim of domestic violence, you should contact an attorney who specializes in domestic violence cases to assist you with accessing resources that can help protect you.

Although millions of women are victims of domestic violence and rape at the hands of their spouses or boyfriends, a considerable number of men are victims as well. Further, there are forms of domestic violence that may not always involve physical force.

When the police respond to a domestic violence case, they must arrest and charge the abuser if the alleged victim has a sign of injury, there was a weapon involved, the abuser violated a domestic violence restraining order or the abuser has a warrant for his or her arrest.

Qualifying Relationships  

Persons in the following relationships qualify as “protected persons” under the New Jersey Prevention of Domestic Violence Act of 1991.

The defendant must be 18 years of age or older or an emancipated minor and the alleged victim must be 18 years of age or older or an emancipated minor who has been subjected to domestic violence by one of the following.

  • Spouse
  • Ex-spouse
  • Present or former household member


Regardless of age, the alleged victim is considered a protected person under the statute if he or she has been subjected to domestic violence by one of the following.

  • A person with whom the victim has a child in common.
  • A person with whom the victim anticipates have child in common, if one of the parties is pregnant.
  • Dating relationship


The defendant must be 18 years of age or emancipated.

Types of Domestic Violence

To obtain relief under the New Jersey Prevention of Domestic Violence Act of 1991,  you must have committed a “qualifying” offense, such as any of the following acts, and it must have been committed against a “protected person.”

  • Homicide
  • Assault
  • Terroristic Threats
  • Kidnapping
  • Criminal Restraint
  • False Imprisonment
  • Sexual Assault
  • Criminal Sexual Contact
  • Lewdness
  • Criminal Mischief
  • Burglary
  • Criminal Trespass
  • Harassment
  • Stalking
     

Restraining Orders

One of the remedies created by the New Jersey Prevention of Domestic Violence Act of 1991 is a civil remedy, that is, a restraining order. Regardless of whether the abuser is charged criminally, the victim of domestic violence can obtain a restraining order. Typically, a victim of domestic violence will seek a restraining order against you if you are the perpetrator.

Temporary Restraining Order

A temporary restraining order or a TRO is issued by a court pursuant to a victim’s allegations of domestic violence. The TRO operates as a protective order against the alleged abuser, prohibiting him or her from further contact with the victim, directly or indirectly. A TRO, or temporary restraining order, will be issued if the alleged victim convinces a judge in an ex parte proceeding that he or she has been in one of the qualifying relationships listed above with the abuser and that the abuser committed one of the 14 acts of domestic violence listed above on the alleged victim. If a TRO is issued against you, you are prohibited from any contact with the alleged victim, directly or indirectly or through a third party.

Within 10 days of a judge issuing a TRO in New Jersey, a court hearing must be held to determine if a final restraining order should be issued. For good cause, such as obtaining an attorney, the court can extend the period to conduct the hearing. During this period, the TRO remains in effect. In New Jersey, if a final restraining order, or FRO, is issued, the FRO remains in effect forever, unless and until a court terminates the order. If the court determines at the final restraining order hearing that there is insufficient evidence to issue a final restraining order, the TRO is dismissed.

Restraining orders are serious and the consequences of being accused of domestic violence can have long-lasting and permanent repercussions. If you have been served with a TRO, it is essential that you contact a criminal defense lawyer.

Final Restraining Order

A final restraining order resulting from domestic violence can extend the conditions contained in the TRO and include additional conditions including: payment of expenses and support, a custody determination, removal of personal property, prohibiting the defendant from possessing firearms and ordering a search for weapons pursuant to constitutional guidelines, granting exclusive possession of a household, and ordering certain classes or counseling.

The penalties for having a final restraining order filed against you can have far-reaching effects. For instance, you will have to relinquish any firearms you own and you will not be permitted to possess them again. You cannot expunge a restraining order.

You may be indefinitely or permanently barred from entering your shared residence. If you have children with the plaintiff, your custody and visitation rights will undoubtedly be severely restricted. To regain any visitation rights, you may have to complete an approved domestic violence or alcohol abuse class, and demonstrate that you no longer pose a threat or danger to the plaintiff or to the children.

You may also be facing a criminal charge if the plaintiff has filed a criminal complaint against you. Typical charges include assault, harassment, terroristic threats, criminal sexual conduct, kidnapping, stalking or other charges that carry serious prison time and can have devastating consequences to your future if you are convicted.

Violation of a TRO or Final Restraining Order

A violation of a TRO or final order can be either a disorderly persons offense or a crime of the fourth degree. Disorderly persons violations are heard in family court while crimes of the fourth degree are heard in criminal court. A fourth degree offense occurs when the violation of the restraining order involves a disorderly persons offense or crime.

Any violation of the no contact, no further acts of domestic violence and other provisions of Part 1 of the protective order is considered contempt. The standard of proof is the one used in criminal proceedings, or proof beyond a reasonable doubt that the defendant violated some condition of the TRO or final order.

The penalty for violating a TRO or final order for the second or subsequent time is a mandatory 30-day jail time and can be up to six months in jail. Any violation of a TRO that is considered a fourth degree crime carries a possible 18-month prison sentence, although this is discretionary.

However, if the contempt involved a separate criminal offense, then you may be subject to those penalties as well.

What to Do If Served with A TRO

Immediately contact a criminal defense lawyer if you are served with a TRO and do not make any statements to the police. You will have to appear in court within 10 days of the issuance of the protective order so time is of the essence.

You will have the opportunity to present witnesses or any other evidence at your hearing to determine if a final restraining order should be issued. At this hearing, your criminal defense lawyer can cross-examine any witnesses the plaintiff presents as well as the plaintiff.

Further, your criminal defense lawyer can offer mitigating circumstances or other arguments that can eliminate any burdensome conditions contained in the TRO or even have the protective order dismissed.

Retaining a Criminal Defense Attorney

It is important to have a criminal defense lawyer at a final restraining order hearing or if you have been charged with contempt in violating a TRO or final order.

Many times a disgruntled spouse will use allegations of domestic violence against the other spouse as a weapon or tool to gain custody of his or her children or for some other gain. The issuance of a protective order can seriously hinder your chances of gaining reasonable custody or visitation in a divorce proceeding.

By contesting the allegations against you at the earliest opportunity and with an experienced criminal defense lawyer at your side, you can be spared considerable financial and emotional consequences.

Whether you are the victim of domestic violence or the accused, you should obtain an attorney to protect your legal rights. Our firm represents both victims and defendants in domestic violence cases in criminal and civil courts. We can help protect you from the serious consequences of domestic violence.

Contact the Law Offices of Stephen S. Weinstein, P.C.
for your free personal consultation today.

 
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