Legal landscape note: This article was originally published in 2015 and describes the law as it stood at that time. New Jersey law changes frequently -- contact us to discuss how the current law applies to your situation.
If you are being hurt or threatened by someone in your home, or you have just been served with a restraining order, New Jersey's domestic violence process moves quickly and the early steps matter. What goes into the complaint, and what happens at the first hearing, can shape everything that follows. Here is how the law works.
The New Jersey Domestic Violence Act was enacted by the Legislature “…to assure the victims of domestic violence the maximum protection from abuse the law can provide.” As used in the Act, “domestic violence” means one or more of these acts of violence:
- Homicide
- Assault
- Terroristic threats
- Kidnapping
- Criminal restraint
- False imprisonment
- Sexual assault
- Criminal sexual assault
- Lewdness
- Criminal mischief
- Burglary
- Criminal trespass
- Harassment
- Stalking
These acts of violence are offenses defined in the New Jersey Criminal Code. In a criminal prosecution, the State must prove beyond a reasonable doubt that the defendant committed each element of the crime. The Legislature recognized that this standard of proof is difficult, if not impossible, for victims of domestic violence to meet because most acts of domestic violence take place in private. Therefore, the New Jersey Domestic Violence Act creates civil remedies for victims of these acts of violence. The Act sets a lesser standard of proof for restraining orders, affording protection to victims who present evidence that it is more likely than not that the act(s) of domestic violence occurred.
Temporary Restraining Orders (TRO)
Temporary Restraining Orders are issued by New Jersey Courts to protect individuals who have shown that they have been victims of domestic violence and need protection from their abusers. Whenever the police respond to a domestic violence call and find probable cause to believe that an act of domestic violence has occurred, they must arrest the individual who perpetrated the violence and file a criminal complaint. The police make an arrest and file a complaint whenever a victim has suffered bodily injury, the individual who committed an act of domestic violence may be in violation of an existing restraining order or a weapon was used. The police file the complaint even if the victim will not. Victims may seek ongoing protection from future domestic violence by applying to the Court for a TRO.
What a victim says in the TRO complaint form is crucial, because the complaint establishes the boundaries of the case to be heard by the Court. The Court can consider only the acts of domestic violence that are alleged in the complaint to have occurred, and can order only the protections that the complaint asks be put in place.
TROs are issued ex parte, meaning that the judge hears only an applicant’s side of the story. Before issuing a TRO the judge must find that the Court has jurisdiction over the parties, that it is more likely than not that the defendant has committed one or more acts of domestic violence against the individual making the complaint, and that the individual making the application needs the Court’s protection. Among the protections a judge may include in the TRO are:
Prohibiting the defendant from committing future acts of domestic violence.
Prohibiting the defendant from returning to the scene of the violence, including a residence shared by the defendant and the plaintiff, the plaintiff’s home and workplace(s), and the homes or workplaces of other people who may be named and afforded protection in the TRO.
Prohibiting the defendant from having any form of contact or communication with the plaintiff, which generally includes prohibiting the defendant from having anyone else make harassing communications to the plaintiff. This prohibition can include other people who may be named and afforded protection in the TRO.
Prohibiting the defendant from stalking, following or threatening to harm, stalk or follow the plaintiff. This prohibition too can include other people who may be named and afforded protection in the TRO.
Ordering, or revising, child custody and parenting visitation arrangements.
Ordering that money be paid to named individuals. This may include money for:
- “Emergent monetary relief”;
- Compensation for medical bills and other damages;
- Continuation of medical, automobile and homeowner’s insurance;
- Mortgage and rent payments;
- Counseling for the victim of domestic violence and for children present when the domestic violence occurred; or
- The victim’s attorney’s fees.
The defendant can be subject to intake monitoring and conditions that may include drug testing and counseling.
Granting temporary possession of specifically described personal property, which can include automobiles and animals as well as personal effects.
The defendant can be “prohibited from possessing any and all firearms or other weapons and must immediately surrender these firearms, weapons, permit(s) to carry, applications to purchase firearms and firearms purchaser ID card…” Failure to surrender these items to the police officer(s) who serve the TRO may result in arrest and incarceration. The TRO may include a “Warrant to Search for and to Seize Weapons for Safekeeping”.
TROs remain in effect until the Court takes further action.
The Court obtains jurisdiction over a defendant when the police or sheriff personally serves the individual with the TRO. Each TRO directs both parties to appear in Superior Court Family Part in the county where it was issued on a specified “return date”, a day and time that is usually within ten days of when the TRO was issued. That is when a judge will hear the case and decide whether or not to dissolve the TRO or make the terms and conditions included in the TRO permanent by issuing a Final Restraining Order.
Final Restraining Orders (FRO)
Call 800-709-1131 to speak with one of our NJ Domestic Violence lawyers if you need assistance prosecuting or defending an FRO action.
Violations of Restraining Orders
Violations of restraining orders issued in domestic violence cases can be heard as civil contempt cases in the Family Part of the Chancery Division of the Superior Court. However, if the conduct that violated the restraining order is itself a crime or a disorderly persons offense, violation of the order may be prosecuted as an indictable fourth degree offense in the Criminal Part of the Superior Court Law Division. Call 800-709-1131 to speak with one of our attorneys if you have been charged with violating a restraining order.
Domestic Violence and Matrimonial Cases
Do not be disadvantaged in your divorce case by provisions that are, or are not, included in the FRO. Call 800-709-1131 to speak with one of our attorneys if domestic violence may be a factor in your divorce.
Domestic Violence and Vulnerable Populations
Institutionalized elderly and disabled adults are protected under other laws. However, because elderly and disabled adults in noninstitutionalized or community settings may find themselves victimized by family members or others upon whom they feel compelled to depend, the Legislature declared in the New Jersey Domestic Violence Act that violence against the elderly and disabled, including criminal neglect of the elderly and disabled “must be recognized and addressed on an equal basis as violence against spouses and children in order to fulfill our responsibility as a society to protect those who are less able to protect themselves.” Call 800-709-1131 to speak with one of our attorneys about an elderly or disabled adult who is a victim of physical abuse, psychological abuse, sexual abuse, or economic abuse.
Domestic Violence and the Lesbian, Gay, Bisexual, and Transgender (LGBT) Community
Gay, bi-sexual and transgender people experience intimate partner violence with the same, or perhaps even higher, frequency as heterosexual couples. No race, ethnicity, class or socioeconomic status group is immune. LGBT victims of intimate partner violence are entitled to the same protections as heterosexual victims under the New Jersey Domestic Violence Law. Nevertheless, societal homophobia often makes the situation for LGBT victims more difficult, causing fewer LGBT victims to report the abuse. Perpetrators of intimate partner violence often take advantage of discrimination against people who do not identify as heterosexual, and the attendant social isolation they may feel, to impose and maintain control over their victims. LGBT victims of intimate partner abuse deserve strong advocates who will help them find protection and connections with people and resources to reclaim their rightful place in the community. A NJ Domestic Violence lawyer will help you get the protections to which you are entitled by the law, no matter how you identify.
To request a consultation, call (800) 709-1131 or use the contact form. The intake team will review the request before any consultation is confirmed.