If you have been harassed or feel threatened by your spouse, a family member, or another person, you have a right to seek a restraining order that prevents the person from coming near you. These legal tools, unfortunately, can come in handy in divorce and related cases. New Jersey’s Superior Court recently explained some of the issues that judges consider when a person subject to a restraining order tries to get the order lifted.

0261049001617900955.jpgHusband and Wife had two kids before they divorced in October 1999. A court granted Wife a temporary restraining order against Husband nine years later. That decision was based largely on a six-page email that Husband had sent to some 30 family members and friends. Husband’s email was apparently in response to Wife’s claims that he wasn’t paying child support and was a bad parent. Although the exact statements made in the email were unclear, a trial judge found that the message was intended to harass and threaten Wife. As a result, the judge granted Wife’s request for a restraining order.

A court held a brief oral argument in 2014, when Husband went back to court and asked that the restraining order be lifted. The judge noted that Wife opposed scrapping the restraining order. Although the judge didn’t allow anyone to testify, she also said Wife’s filing in opposition to Husband’s request clearly showed that Wife still feared him. Wife spoke at this point in the proceedings, saying “Yes, I do.” The judge ultimately held that Husband’s request was “too early” and “not warranted at this point.”

Reversing the decision on appeal, however, the Superior Court said the judge failed to adequately consider Husband’s request. The Court explained that the “linchpin” in considering whether to lift a restraining order is “whether there have been substantial changed circumstances” to justify undoing the order. Courts in New Jersey are expected to take a number of factors into account when making that determination. Those factors include whether the victim consents to scrapping the order, whether the victim still fears the person restrained by the order, the nature of the parties’ relationship, and whether the person seeking to have the order lifted has violated it in the past. Courts also consider any history of violence or drug or alcohol abuse by the person seeking to have the order lifted.

In this case, the trial judge appeared to base her decision on Wife’s opposition to scrapping the order and her apparent fear of Husband. But the judge didn’t make any objective findings of fact on that fear, other than taking Wife’s word for it. “The judge cannot accept that statement at face value,” the Court said. “The judge must explore the objectivity of [Wife]’s remark and make a finding of fact as to it.” As a result, the Superior Court remanded the case back to the trial court with instructions to conduct a hearing and to consider the factors to determine whether Husband’s request was warranted.

It is vital that a person considering a divorce or grappling with restraining orders and other issues seek the counsel and advice of a seasoned family law attorney. The New Jersey divorce lawyers at Helfand & Associates have more than 100 years of combined experience representing clients in a wide range of divorce, child custody, and support cases. Our lawyers work diligently to ease the stress on clients in what can be a trying process by building persuasive cases for the people whom we represent. Our offices are conveniently located in Whippany and New York City. We are happy to offer clients a consultation in family law and other matters. Contact us online, call our New Jersey office at 973-539-1000, or call our New York City office at (646) 213-9053 to set up an appointment with one of our attorneys.