Carfagno Factors and Dissolving A Restraining Order
Docket No. A-5236-18T1
Decided December 8, 2020
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division dissolved a Final Restraining Order (FRO) after the plaintiff engaged in sexual relations numerous times with the defendant during the period the FRO was in effect.
In A.J.C., on March 2, 2013, plaintiff filed a domestic violence complaint pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, and sought a temporary restraining order based on an incident that occurred a month earlier when defendant grabbed her arm and “yanked it back forcefully” after she refused to consent to sexual intercourse. Defendant also pulled “plaintiff’s hair and forcefully tried to kiss her.” The Judge found plaintiff credible and granted her an FRO.
On October 20, 2016, defendant filed a motion to vacate the FRO. Judge Christopher D. Rafano presided over a fifteen-day Carfagno hearing that spanned a period of two years and which included the testimony of plaintiff and defendant. The testimony included significant background information regarding the parties’ interactions while the FRO was in effect. Notably, it revealed that plaintiff and defendant had engaged in an eight-month sexual relationship from March 2013 to December 2013.
During the hearing, defendant sought to admit an audio recording and its accompanying transcript of a conversation that took place between the parties after the FRO was issued. The recording also contained detailed audio of the parties engaging in sexual intercourse. The recording was admitted, and contained evidence that plaintiff admitted she was not afraid of defendant because she had a gun, and she proclaimed that the FRO was like a firearm.
On June 21, 2019, Judge Rafano entered an order vacating the FRO and detailed his reasons in two accompanying oral decisions on June 7, 2019 and June 11, 2019. The court also found the plaintiff’s testimony incredible and her witnesses’ testimony “to be biased, unsubstantiated, overreaching and just not believable.” In contrast, the court concluded that the defendant’s testimony was “credible . . . honest and sincere.” Further, in his June 11, 2019 oral decision, Judge Rafano reviewed the relevant factors for dissolving a FRO identified in Carfagno and concluded that defendant had established good cause to dissolve the FRO.
Plaintiff appealed and the Appellate Division affirmed the trial court’s dissolution of the FRO, ruling the trial judge had appropriately analyzed the Carfagno factors and found that plaintiff was not in fear of defendant as a result of numerous sexual encounters and the audio recording.
In order to apply to dissolve an FRO, the Court must weigh the Carfagno factors in favor of the applying defendant. The factors are to be weighed “qualitatively, and not quantitatively,” and they include:
- whether the victim consented to lift the restraining order;
- whether the victim fears the defendant;
- the nature of the relationship between the parties today;
- the number of times that the defendant has been convicted of contempt for violating the order;
- whether the defendant has a continuing involvement with drug or alcohol abuse;
- whether the defendant has been involved in other violent acts with other persons;
- whether the defendant has engaged in counseling;
- the age and health of the defendant;
- whether the victim is acting in good faith when opposing the defendant’s request;
- whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and
- other factors deemed relevant by the court.
Dissolving a restraining order is no easy task. If you are interested in applying to dissolve, contact the experienced attorneys at Hark & Hark. We help clients with prenups, divorce, custody, domestic violence, child support, alimony, adoptions and more. In recognition of these trying financial times due to COVID-19, we are reducing fees and working with clients to come up with manageable payment plans. While we combat Coronavirus, we are offering special deals for first responders and individuals currently working in the medical field. Initial consultation is always free and we are available remotely.
We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing domestic violence charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Salem counties.
