If there are acts of domestic violence, a victim can seek a restraining order. The parties have to be in a familial, dating, or marital relationship. Such an action is usually started by a call to the police. Where there are allegations of domestic violence, the local judge or Superior Court family division will issue a temporary restraining order (TRO).
Tanya Helfand at Schenck Price has prevailed on numerous domestic violence actions. Domestic violence consists of homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, or stalking. The alleged perpetrator is barred from contact with the victim. A final hearing date will be set in which the allegations of domestic violence must be proven by a preponderance of the evidence. The same charges can also be additionally adjudicated but in a separate action in municipal court or criminal court, where the allegations must be proven beyond a reasonable doubt. Both actions are heard separately. The courts are sensitive to the fact that in divorce actions, a domestic violence complaint can be used to gain an advantage in a divorce. Normally, the accused will not admit domestic violence. After a hearing, the court will decide if the victim has met the burden of proof by a preponderance of the evidence to obtain a final restraining order (FRO).
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If this has occurred, the perpetrator will be under court order to have no contact with the victim permanently. If there are children, the court may order a risk assessment, which affects custody and parenting time. In a divorce setting, for example, this can mean the perpetrator is permanently barred from entering the house. He/she may be required to continue to support the household. He/she may not be able to have custody mediation or any mediation because the parties cannot speak to one another. If one violates the FRO, it is contempt of court and will lead to arrest and sentencing.
If a divorce is filed, it may be prudent to enter into a civil consent order under the divorce docket number rather than getting a FRO for domestic violence. Schenck Price has negotiated civil restraints in appropriate situations. Civil restraints can also be agreed upon in which there is no communications; one party leaves and agrees to other conditions to ensure safety and peace without the disadvantage that may come with a FRO. However, when needed, the FRO is more strongly enforceable. Additionally where there is dangerous aggression the FRO should be obtained.
People are angry and upset when divorcing, and sometimes have to be under the same roof for an extended period of time until the divorce is resolved. Civil restraints, if accepted by the parties, can help avoid domestic violence.