The Process for Entering into or Dismissing a Final Restraining Order after a Temporary Restraining Order Has Been Issued
How long does it take for a TRO to be Converted into a Final Restraining Order or Dismissed?
The Court has approximately thirty (30) days to either convert the Temporary Restraining Order into a Final Restraining Order or dismiss it. A trial will usually be scheduled within ten (10) days of entering into a Temporary Restraining Order.
How is the defendant Placed on Notice that a Temporary Restraining Order has been Issued?
A Sheriff’s Officer will serve the defendant with a copy of the Temporary Restraining Order.
What Happens if the defendant is unable to be served with the Temporary Restraining Order?
Prior to the first hearing, the defendant will be personally served with the Temporary Restraining Order. If the defendant is unable to be served, the Court will adjourn the matter to attempt to serve the defendant. The matter will not be able to proceed unless the defendant has been personally served with a copy of the Temporary Restraining Order or he/she consents to accepting service. After a certain period of time, if the defendant is unable to be served, the Court will issue an Extended Temporary Restraining Order. This means that the terms set forth in the Temporary Restraining Order will continue to be in full force in effect until the defendant is served with a copy of the Temporary Restraining Order.
Can the defendant return to the joint residence after being served with the Temporary Restraining Order?
If the parties reside together, the defendant may be permitted to return to the joint residence with the assistance of a police officer to obtain limited personal belongings.
How is a Temporary Restraining Order Converted into a Final Restraining Order?
The parties can either consent or the Court can enter into a Final Restraining Order after a trial.
What does the Court Need to Establish to Enter into a Final Restraining Order?
First, the Court needs to establish jurisdiction. This means that the alleged victim is someone who is protected under the New Jersey Prevention of Domestic Violence Act. Next, the Court will establish that either: the alleged predicate act took place in the county where the matter is being heard, that the plaintiff and/or defendant resides in the county where the matter is being heard, or that the plaintiff fled to the county where the matter is being heard after the alleged predicate act took place.
Then, the Court will need to establish by preponderance of the evidence, that the victim has met his/her burden in a two (2) prong test. Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). First, the Court will establish whether or not the defendant has committed one or more of the predicate acts. If the Court does not find that a predicate act has been committed, then the Temporary Restraining Order will be dismissed.
If the Court finds that the defendant has committed one or more of the predicate acts, then the Court moves on to the second prong of Silver v. Silver. “The Court must consider the evidence in light of whether there is a previous history of domestic violence, and whether there exists immediate danger to person or property.” Id. at 126. A victim must demonstrate that a final restraining order is necessary “to protect the victim from an immediate danger or to prevent further abuse.” Silver, 387 N.J. Super. at 127. If a Court makes these findings, then a Final Restraining Order will be issued. If the Court does not make these finds, then the Temporary Restraining Order will be dismissed.
What are the Consequences if a Final Restraining Order is Issued
If a Final Restraining Order is issued, there are several consequences for the defendant. These include a fine up to $500; up to thirty (30) days of jail time; the loss of firearms or other weapons, such as hunting knives, swords, etc.; the potential loss of certain professional licenses; the defendant’s name will be listed on a central registry of domestic violators; requirements for the defendant to complete certain classes/therapies/drug tests, etc. It could also have an impact on custody and parenting time if the parties have any children together.
How long is a Final Restraining Order in effect?
It is permanent and remains in effect until the parties consent to dismiss it or the Court dismisses it pursuant to the factors set forth in Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995) upon application to the Court by the defendant.
Is there another option besides Dismissing the Temporary Restraining Order and the Issuance of a Final Restraining Order?
Yes, the parties can enter into Civil Restraints which is an agreement that usually limits contact between the parties. For further information, please contact one of the attorneys in our Divorce and Family Law Practice Group.