In New Jersey, there are two types of restraining orders: temporary restraining orders (TRO) and final restraining orders (FRO). TROs and FROs prevent another person from coming within a certain distance of the victim and prevents future communication. First, there are criteria a “victim” of domestic violence must meet in order to seek a TRO and then an FRO.
Temporary restraining orders and final restraining orders are granted to individuals believed to be victims of domestic violence. In order to be a “victim”, you must be a in qualifying relationship which includes current/former spouse, current/former household member (includes adult children), current/former dating partner, or biological or adoptive parent. The individual must be over the age of 18. If you do not fall into one of these categories, you will most likely not be able to proceed with a TRO or FRO.
Predicate Act of Domestic Violence
Once you meet the requirement of a qualifying relationship, the victim must show that they are a victim of a predicate act of domestic violence. The predicate acts of domestic violence include:
- Terroristic threats
- Criminal restraint
- False imprisonment
- Sexual Assault
- Criminal Sexual Contact
- Criminal Coercion
- Criminal Mischief
- Criminal Trespass
- Cyber Harassment
- Crimes involving risk of death or serious bodily injury to anyone protected under the Prevention of Domestic Violence Act 1991
- Contempt of a Restraining Order
The victim need only show that they were subject to one of the predicate acts listed above, however, often several occur at the same time.
Restraints Necessary for Protection of the Victim
Finally, a victim must demonstrate that a restraining order is necessary for their protection. This area is broad, and many considerations are taken into account. This could include prior history of domestic violence, nature of the parties’ relationship, proximity of residences (often times the parties live in the same household), and the nature of the predicate act.
Temporary Restraining Orders (TRO)
If a person believes they are the victim of domestic violence, they can make an application for a temporary restraining order (TRO) at the local police department or Superior Court. An intake process will occur where the victim will be asked questions regarding a qualifying relationship, the predicate act, and other details regarding the incident and the relationship with the other party. The application will then go before a judge. If the application was made to a police department, the hearing will be before a municipal court judge. In Superior Court, the hearing is in front of a Hearing Officer, and if the victim disagrees with the Hearing Officer’s decision, a Superior Court Judge will hear the matter.
During this entire process, the alleged perpetrator of domestic violence is not noticed and does not participate in the TRO hearings.
If the Judge determines the victim is likely one with a qualifying relationship, a sufficient predicate act of domestic violence occurred, and a TRO in necessary for the protection of the victim, a TRO will be granted. Once granted, the perpetrator and now defendant must stay away from the victim now plaintiff until the final restraining order (FRO) hearing. Until that time, if the defendant goes too close to the plaintiff, or tries to contact the plaintiff, the defendant could be found in violation of the TRO and subject to criminal prosecution.
Because of the nature of TROs, an FRO hearing is scheduled within 10 days of the entry of the TRO. What’s more, if the parties reside in the same household when a TRO is entered, the defendant may be escorted by police to vacate the home and the defendant is forbidden to return as long as the TRO remains in effect.
The Court will serve the defendant with the TRO. If the defendant cannot be located, or has fled the area, the Judge may enter an indefinite TRO, keeping the restraints in place until the defendant is located.
Final Restraining Orders (FRO)
Once the TRO is served, a hearing for a final restraining order (FRO) will be scheduled within 10 days. Here, the defendant will have an opportunity to defend against the entry of an FRO, unlike the TRO hearings that are uncontested.
After taking testimony and evidence, the Judge will determine whether an FRO is appropriate based on the factors outlined above: 1) whether there is a qualifying relationship; 2) whether a predicate act of domestic violence has occurred; and 3) whether an FRO is necessary for the protection of the plaintiff.
The plaintiff has the burden of proving be a preponderance of the evidence (51%) that the predicate act occurred and that the restraints are necessary for an entry of an FRO. If the plaintiff cannot meet this burden, the application for the FRO is dismissed and the TRO is dismissed as well, as if nothing ever occurred, leaving the plaintiff with no protections.
If a plaintiff is successful with the FRO application, the restraints of the TRO will remain in effect forever, with very few exceptions. There are many other effects an FRO has on a defendant if they are found guilty of domestic violence including: prohibition of owning firearms, problems with international travel, and other administrative issues such as losing professional licenses.
If you are a victim or have been accused of harassment, stalking, assault, or something similar, contact Hark & Hark immediately. Temporary Restraining Orders (TRO) and Final Restraining Orders (FRO) are serious matters and can have significant consequences. Hearings are also scheduled very quickly, as these matters are considered emergent. There is often little time to act. Call now!
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