A Final Restraining Order Requires the Trial Judge to Make Certain Findings Pursuant to A Two-Prong Test



DOCKET NO. A-3506-18







Submitted February 24, 2021 – Decided June 28, 2021

Submitted by New Jersey Family Lawyer, Jeffrey Hark.

Plaintiff obtained a temporary restraining order against defendant, on February 14, 2019. She alleges that he was harassing her frequently by contacting her despite her objections. Plaintiff and defendant had an on and off relationship from April to December 2018. The relationship ended December 6, 2018; the parties remained in contact for the next month. By January 10, 2019, the parties had a falling out. Plaintiff thought defendant was having relations with other females. Defendant attempted to reconcile the relationship, but plaintiff told him to leave her alone multiple times. On January 19, 2019, and continued into the early morning of January 20, 2019, defendant sent plaintiff 24 text messages. Plaintiff had a short conversation with defendant over text on this day and plaintiff told her told him to leave her alone. Plaintiff then blocked defendant’s number and defendant sent her a string of emails starting January 21, 2019. One email stated that he “will now make it a point to insert himself into her life.” He then emailed her that he “would never cross that line, but now he will make sure that he did.” Defendant sent plaintiff 17 emails in a seven-hour period after plan of told him to leave her alone. Defendant called plaintiff six times and sent multiple emails around 2 AM on January 22, 2019.  On January 25, 2019, defendant called plaintiff 15 times. Plaintiff has indicated he had also shown up at her house unannounced and banged on the door multiple times in September 2018. Defendant’s repeated communications and obsessive behavior made her worried and scared.

At the close of the final restraining hearing defense counsel moved for an involuntary dismissal. The judge denied the request finding plaintiff established a prima facia case under Silver v. Silver. At the close of the hearing the judge rendered a decision. The judge found plaintiff to be entirely credible because her recollection of the events was accurate, and she provided detailed testimony. The judge concluded the plaintiff proved by a preponderance of the evidence defendant committed a predicate act of harassment. The defendant constantly tried to communicate with plaintiff at extremely inconvenient hours with a purpose of harassing her. The judge also ruled plaintiff met her burden of proof that her well-being is or would be in danger by defendants repeated contact with her. The judge found plaintiff was scared because she believed that he was obsessed with her and found ways to contact her after being blocked. The judge entered a final restraining order which included plaintiff’s current boyfriend and as well as herself in the protective person order.

Defendant appeals the final restraining order. The entry of a final restraining order requires the trial judge to make certain findings pursuant to a two-prong test. First the judge must determine whether the plaintiff has proven by a preponderance of the credible evidence at one or more of the predicate accept forth in N.J.S.A.. 2C:25-19a has occurred. The second prong is if a predicated act of harassment has been proven, the judge must determine whether an order is necessary after evaluating the factor set forth to protect the victim from immediate danger or to prevent further abuse. The Appellate Court finds no error in the trial judge’s entry of the final restraining order. The Appellate court found the multiple communications sent to plaintiff at extremely inconvenient hours is harassment under the statute. The defendant argues that there is not proof of violence or physical threats. The point of the two-prong test is to ensure that there is no violence towards the plaintiff.  A final restraining order is meant to protect domestic violence victims from emotional harm and control those affected by the domestic violence offenders. The Appellate Court found no error trial judge’s conclusion and the final restraining order was correctly warranted. The appellate court however found including the plaintiff’s new boyfriend in the restraining order was not correct and the trial court abused their discretion. The defendant in this case followed plaintiff’s new boyfriend on Instagram and wrote one disturbing email to him that he would “smash his face in if he saw him.” The Appellate Court did find this troubling, but the facts are insufficient for a harassment violation and therefore remand the matter about the plaintiff’s boyfriend being part of the final restraining order.  This decision was affirmed as modified and remanded.

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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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