DV in NJ: Re-thinking Permanency of Restraints and Examining Newer Causes of Action

The New Jersey Prevention of Domestic Violence Act (PDVA) (N.J.S.A. 2C:25-17 et seq . ) provides two forms of relief to a victim of domestic violence: (1) civil relief, by obtaining a restraining order; and (2) criminal relief, by which a victim may file a criminal complaint. Here, we take a closer look at the civil side—the Final Restraining Order.

A restraining order is an order issued by the court pursuant to a complaint under the PDVA to protect a victim of domestic violence. Upon a finding at a hearing that an act of domestic violence occurred, the judge will determine whether to issue a Final Restraining Order (FRO) and what types of additional relief will be granted. An FRO is issued upon a showing that the victim was subjected to domestic violence by someone with whom the victim has a domestic relationship as defined by the PDVA. The victim must prove that a predicate act of domestic violence occurred and a restraining order is necessary to protect the victim from immediate danger or future acts of domestic violence. The standard of proof at a FRO hearing (“preponderance of evidence”) is lower than that required in a criminal trial (“beyond a reasonable doubt”), even though the sanctions for violating a FRO are criminal sanctions. MORE

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Dissolving A Domestic Violence Final Restraining Order

Restraining Order
Restraining Order

Unlike some other jurisdictions (such as Florida), New Jersey does not have an automatic sundown provision in its Final Restraining Orders (FRO) entered pursuant to the Prevention of Domestic Violence Statute (PDVS). That is, there is no expiration date for the restraints and the Order can remain in effect in perpetuity so long as the need remains.

This can have a serious impact on individuals against whom restraints have been entered, as this information is shared between state and federal agency data systems. Often, as months, years and even decades pass, the defendant “moves on,” yet still is subject to the limitations such an Order can have on their day to day life. By way of example, imagine a client who had a restraining order entered against him while he was in college. Ten years have passed since entry of that Order and he has gone on to become a medical doctor. Imagine further that he no longer lives in New Jersey (nor does the victim) and he travels for work. He becomes immensely embarrassed by the fact that that he is constantly being “red-flagged” at airports in front of colleagues and peers. He is forced to either awkwardly avoid an explanation or to divulge this very personal bit of history, which was ten years and a lifetime in his past – he and the plaintiff had no communication since before their court date and lived many states apart. He rightfully worries about the impact these events might have on his career. In a very real sense, the restraints had long since outlived their purpose.

New Jersey Courts have noted that the PDVS is to be used as a “shield” to protect the alleged victim and not as a “sword” to punitively oppress the offender. In the above example, the parties had had no contact for a decade and lived hundreds of miles apart. To the extent that the restraints served no current purpose, they were unfairly impacting on the client and were potentially jeopardizing his career.

In such instances, an application to dissolve the restraints may be made to the Court. The analysis will consider a multiple number of factors designed to ascertain whether the restraints remain necessary and the likelihood the defendant will recidivate. (See Grover v. Terlaje, 379 N.J. Super 400, 408 (App. Div. 2005); Carfagno v. Carfagno, 288 N.J. Super 424 (Ch. Div. 1995)). The real lesson, though, is to be mindful that, in New Jersey, Final Restraining Orders and the injunctions they impose can continue to affect an individual long after the relationship that instigated their entry has ended.