TO VACATE OR MODIFY A DOMESTIC VIOLENCE RESTRAINING ORDER
- posted: Jan. 10, 2020
A final domestic violence restraining order is granted by the court after a trial in which the Court determines by a preponderance of evidence that an act of domestic violence took place. There is no consent to restraining orders in New Jersey. The Order is granted to protect the victim and can include but not be limited to: 1) restrictions on contact with the victim; 2) restrictions on contact with the victim’s close relatives; 3) custody or parenting time orders; 4) temporary support; 5) legal fees.
A domestic violence restraining order can be issued not only for people in a dating or marital relationship but can be granted to family members or persons sufficiently connected to the household to be subject to a domestic violence restraining order. Where the parties have children, the Court can order a risk assessment relevant to parenting time and custody.
TO VACATE A RESTRAINING ORDER
In some cases, there may arise good cause to vacate a final restraining order. If the Defendant wants the Order to be vacated, an application must be made to the Court and preferably to the Judge who has heard the original case. A copy of the trial transcript should be provided to the Court. The Court considers the facts and circumstances of the case within the context of the legislative intent to protect victims.
In cases where the motion Judge did not enter the final restraining order, the “complete record” requirement of the statute includes the pleadings, Orders, the Court file and transcript of the final restraining order hearing. The Court will address the previous history of domestic violence between the parties, the totality of the circumstances of the relationship and the reasonableness of the victims continued fear of the perpetrator, if there is opposition.
Once a moving party has met the burden of making a prima facie case to dismiss the restraining order, the Court will determine if there are facts in dispute requiring a plenary hearing.
Where the applicant shows a significant change of circumstances from that at the time the restraining order was entered, the Court will consider a dismissal.
When Defendant moves for dismissal, the Court must consider factors identified in Carfagno v. Carfagno, 288 N.J. Super. 424:
“To accomplish the goal of protecting the victim, courts should consider a number of factors when determining whether good cause has been shown that the final restraining order should be dissolved upon request of the defendant: (1) whether the victim consented to lift the restraining order; (2) whether the victim fears the defendant; (3) the nature of the relationship between the parties today; (4) the number of times that the Defendant has been convicted of contempt for violating the order; (5) whether the Defendant has a continuing involvement with drug or alcohol abuse; (6) whether the Defendant has been involved in other violent acts with other persons; (7) whether the Defendant has engaged in counseling; (8) the age and health of the Defendant; (9) whether the victim is acting in good faith when opposing the Defendant’s request; (10) whether another jurisdiction has entered a restraining order protecting the victim from the Defendant; and (11) other factors deemed relevant by the Court.”
If there are facts in dispute that are relevant to a resolution to the application to dismiss the final restraining order, the Court will conduct a plenary hearing.
In one case where the Motion was denied, the Defendant, two (2) years after the final restraining order, moved to dismiss because it was preventing him from getting a career in law enforcement. The Plaintiff opposed the Motion with a detailed history of mental and physical abuse and the psychological damage it caused her. The Defendant did not provide a copy of the final restraining order transcript. Kanaszka v. Kunen, 313 N.J. Super. 606
In another case, an unmarried mother with a child obtained a final restraining order after a volatile relationship with incidents of assault and harassment. The parties reconciled and the mother told the court that she “reconsidered” her relationship because the Defendant stopped bothering her. The Court denied the Motion. Subsequently, the Plaintiff filed a new domestic violence complaint because the Defendant threatened to kill her. This Complaint was dismissed because the original final restraining order was still in effect. The parties had a child and Defendant sought enforcement of his visitation rights. He testified that they lived together. Plaintiff denied living with him but admitted to having sexual relations with him. The parties apparently continued to reconcile and the Court vacated the final restraining order on the grounds that it was a waiver of rights under the domestic violence act.
Plaintiff appealed. The Appellate Court concluded that the family part Judge erred by automatically vacating the restraining order because of the parties reconciliation. A.B. v. L.M., 289 N.J. Super. 125.
If a Plaintiff seeks to vacate a Final Restraining Order, the Court will want to ensure that it is done knowingly and voluntarily and that the Plaintiff understands the cycle of domestic violence. The Court will want to ensure that the Plaintiff is not being coerced into dismissing the Final Restraining Order. The Plaintiff and Defendant may be reunited as the significant change of circumstances as the basis. The Court must still evaluate the Plaintiff’s request in the context of the circumstances and the likelihood that violent conduct will occur again.
In another case, the Defendant’s application to dissolve the restraining order was denied when it had only been in effect for eight (8) months. Hardship from the Order was irrelevant. The Defendant was a deputy sheriff and the restraining order had an adverse effect on his job. M.V. v. J.R., 312 N.J. Super. 597.
A final restraining order was successfully dismissed in which the parties were divorced for over ten (10) years. They had no contact with each other. Both parties had moved to Pennsylvania. There were no weapons involved at the time of the harassment incident for which Plaintiff got the final restraining order. The Final Restraining Order did not order forfeiture of weapons. The Plaintiff testified that she was no longer afraid of her ex-husband and had no objection to the dismissal. The Defendant sought to obtain a license to buy a hunting weapon and the final restraining order prevented it. The final restraining order was dismissed.
In sum, once a final restraining order is issued, the Court must carefully review the request to dismiss it. The Court will seek to uphold the purpose of the final restraining order to protect victims of domestic violence.
Helfand & Associates has handled all aspects of Final Restraining Orders and represented both Plaintiffs and Defendants successfully. If you wish to discuss this further, contact Helfand & Associates at 973-428-0800.
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