Temporary Restraining Order (TRO) and Final Restraining Order (FRO) when Threatened with Forceable Rape
Docket No. A-3436-18T2
Decided July 20, 2020
Submitted by New Jersey Restraining Order Law Firm, Hark and Hark.
In a recent unpublished decision the Appellate Division overturned a Final Restraining Order (FRO) entered by the Trial Court despite allegations of a forced rape with a gun, and several gruesome details a prior history of domestic violence.
In R.T., the parties cohabitated for about one year, but ended their relationship when plaintiff, B.D., was five months pregnant with the couple’s only child, F.D. Parenting time was not established by court order; plaintiff permitted defendant to visit F.D. three times per week, for one hour per visit, in her home. Plaintiff and F.D. lived with plaintiff’s mother, who often was present during defendant’s visits. The issuance of the FRO relates to acts that occurred during defendant’s visit on January 19, 2019. The visit was prescheduled but, at plaintiff’s request, it occurred earlier in the day than usual. Plaintiff’s mother was not home during the visit.
Plaintiff testified that when defendant arrived, he pushed the front door into her and F.D., causing plaintiff to strike the closet doors located in the foyer behind her. Plaintiff was “stunned” by defendant’s action. She told the court defendant appeared “angry,” “high” on drugs, and “looked like something was wrong.” Defendant “threw his head back in frustration,” stating in an “aggressive and raw” manner, “I’m going to kill her.” Because defendant “had already pushed his way in[to]” her home, plaintiff was “terrified.”
Plaintiff also testified about prior incidents of domestic violence including bullying, strangling, pushing, threatening, pointing a gun at her and threatened to kill her if she did not have sex with him.
Defendant denied pushing the door open on the day in question and did not threaten her, did not force her to have sex with him, and denied incidents regarding the gun.
Plaintiff filed for and received a Temporary Restraining Order (TRO) for terroristic threats, N.J.S.A. 2C:12-3 then amended the TRO to add predicate acts of assault, N.J.S.A. 2C:12-1; N.J.S.A. 2C:25- 19(a)(2), and harassment, N.J.S.A. 2C:33-4; N.J.S.A. 2C:25-19(a)(13).
The trial court found that there had been a forceable rape, defendant pushed his way in the house, and that plaintiff was fearful of him and granted a final restraining order (FRO) and ordered defendant to have a psychiatric evaluation. Defendant appealed.
The Appellate Division found that the trial court failed to sufficiently articulate factual findings and conclusions of law and remanded the case back to the trial court for further review. Specifically, the court’s analysis of the predicate act of offensive touching by defendant pushing his way in the door required the court to analyze whether it was done with the intent to harass the plaintiff. The Court also failed to show whether the plaintiff met the other predicate acts alleged.
If you are involved in domestic violence, either as a plaintiff or defendant, it is vital to contact an experienced attorney for cases involving a Temporary Restraining Order (TRO) or possible Final Restraining Order (FRO). Restraining order hearings are conducted on an expedited basis due to their nature, so you may not have time to wait. There are serious consequences for a defendant if an FRO is entered. As for a plaintiff, there is obviously a need to protect yourself from a defendant who is alleged to have committed domestic violence.
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