Do you want to get a final restraining order (FRO) modified or changed?
Has a final restraining order been entered against you? Do you want to get that final restraining order (FRO) modified or changed? Were you unhappy with some of the restraints or prohibitions in the restraining order and you want to get them changed or reduced?
Submitted by New Jersey Civil Lawyer, Jeffrey Hark.
In the recent Appellate Division case of KL v. SL Decided on August 24, 2018 the New Jersey Appellate Division reviewed a request to modify a FRO from a defendant who attempted to go back to court on numerous occasions to change the terms of the final restraining order entered against him from years earlier.
The Appellate Division affirmed the trial judges denial of the defendant’s modification of the terms of the final restraining order ruling that the applicant did not satisfy the procedural burden at the time of the hearing and the trial judge was correct.
The court reiterated the burden the moving party has to dissolve or modify restraining order terms as follows:
“The party attempting to modify the terms of the FRO has a burden to make a prima facia showing that good cause exists for modifying or dissolution the prior ordered restraining order. Considering the application for dismissal the moving party must show substantial change in circumstances from what existed at the final hearing for the court to entertain the application for dismissal in order that the victim was not forced to repeatedly relitigate issues regarding the initial domestic violence which itself could be considered a form of abuse and controlling behavior. The moving party must make the initial showing of a substantial change in factual circumstances prior to a full hearing with testimony in addition to there being faxed of material dispute to resolve the motion. Conclusionary allegations should be disregarded by the court. “
What does this mean? It means that prior to an actual hearing being granted to address the underlying modifications of the restraining order the moving party must prove that there are substantial changes in facts and circumstances that would enable the judge to even grant a hearing. In addition those changed in fact in circumstances must be substantial and not have been present at the time of the final restraining order hearing. Obviously the person that the restraining order is entered against, who wants the terms of the final restraining order changed, must present these in the moving papers filed with the court at the time the motion to modify is filed. This is presented by way of a certifications supported by exhibits and documents that the court can look to to make the initial determination if there does exist, “that substantial change of circumstances.” This court affirmed the trial judges obligation to act as a gatekeeper and enforcer of the initial restraining order based on her/his own prior decision. Why? Because the court views the continued effort of a person who has a restraining order filed against them to come to court and change the terms as additional type a means of the domestic violence and domestic abuse that they must protect again.
These are substantial procedural burden the moving party has to overcome even before a actual hearing is allowed. Do you have the right trial attorney to help you with this issue? Has your attorney you taken the appropriate procedural steps to make sure this initial application to modify the FRO complete and thorough with the supporting documents required to get the full hearing scheduled. Remember you also have to have a copy of the prior hearing transcript ordered and included in the package for the court to review. Has your attorney done this as well?
Jeffrey S. Hark, Esq.