Restraining Orders and How they Work

What are Restraining Orders and How do They Work?

"Restraining Orders" are meant to protect victims of "Domestic Violence" from those who have committed an act or acts of domestic violence against the victim.  The offenses, which form the basis of a Restraining Order frequently are "harassment" and "assault," but can include "homicide, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass and stalking."

An application is frequently made by a party to the court or to the police who direct the party to a judge. The judge then determines if a "Temporary Restraining Order" is warranted. If so, the Defendant is served with the TRO, removed from the living quarters and other financial relief may be temporarily granted, until the time of the hearing. At the hearing, which normally takes place within ten days, the Court takes testimony and admits exhibits. It is a "quasi-criminal" proceeding that takes place in the Family Part of the court, as violations may lead to incarceration. Separate criminal actions may be filed in the municipal or superior court criminal part.

As an example, as to harassment, under N.J.S.A. 2C:33-4, a person commits the crime of harassment if, with the purpose to harass another s/he:  (a) Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or in any other manner likely to cause annoyance or alarm; (b) Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or (c)Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

Courts have held that arguments between spouses in the midst of a divorce are merely "domestic contretemps" and do not rise to the level that require a restraining order.  However, each case is fact sensitive and turns on specifically what was said and done and what threats, if any, were made by the aggressor, as well as history of any domestic violence between the parties.  The court hears testimony and admits exhibits as in any trial. Credibility of the parties is frequently an issue.

If the court finds that an act of domestic violence was committed and that a Final Restraining Order is warranted, an FRO is issued. The offending party is barred from direct or indirect communication with the victim, and possibly other family members. As well, other relief in the form of support, custody, and parenting time as well as counsel fees is available.

If a person feels threated because of actions or communication made by a spouse or significant other, or other member of a family, the threatened person should contact the police.  The police will help and provide instruction on the appropriate authorities to contact should you want to obtain a restraining order.   It is a good idea to keep records and recordings of any written or spoken communications coming from the aggressor to support your claim.  As well, local support groups offer counseling and advice.

Final Restraining Orders can complicate divorce proceedings and may result in increased counsel fees. This is partly because all communication relating to the divorce must be made through counsel due to the prohibition on the Defendant communicating with the victim. 

Parties should never use a restraining order as a weapon to gain advantage in a divorce or to remove a spouse from the marital residence without just cause.  This is not an appropriate use of the process and is an abuse of judicial resources.    

If a restraining order is not the appropriate remedy, yet parties are in a stressful situation, if there are resources, alternative living arrangements may be the solution, with "civil restraints." This often involves a consent order wherein the parties agree on limited communication except as provided for in the agreement.  However, civil restraints do not carry the same level of protection to a victim and do not result in immediate responses by the Courts or the Police if there is a violation of the civil restraints. The violation of a restraining order will result in the aggressor's arrest and possible jail time.  In contrast, a violation of a civil order for restraints must be brought to the court's attention by filing a motion.  It does not receive immediate attention and generally results in non-criminal punishment such as a monetary sanction.

For legal assistance, contact Maleski Eisenhut & Zielinski, LLC at 908-237-9711 or online.