What Is Domestic Violence (i.e., a Predicate Act)?
Domestic violence can be a single act or a pattern of physical, sexual or verbal abuse between two parties who are currently or were previously in a romantic relationship, have or are expecting a child together, or have lived together. New Jersey law defined domestic violence as the occurrence of one or more of the following criminal acts between these two groups of people. These are also referred to as “Predicate Acts” of domestic violence:
- Criminal coercion
- Criminal mischief
- Criminal restraint
- Criminal trespass
- Criminal sexual contact
- False imprisonment
- Sexual assault
- Terroristic threats
In New Jersey, gender is not a factor when determining domestic violence cases.
Who Can File for and Be Served a Restraining Order?
The Prevention of Domestic Violence Act protects people who are 18 years or older, or who are an emancipated minor, and who have suffered acts of domestic violence at the hands of:
- A current or former spouse
- A current or former household member
- A person with whom the victim has had a dating relationship with
- A person the victim has a child with, or is expecting to have a child with in the case of pregnancy
Emancipated minors are people under the age of 18 who fall under the following categories:
- Have been married
- Have entered the military
- Have a child
- Is pregnant
- Is declared emancipated by a court or administrative agency
If the abuser is younger than 18 years old and is not emancipated, the case is not considered domestic violence in New Jersey, but is rather a juvenile delinquency case.
Modifying a TRO or FRO in New Jersey
Once a TRO or FRO has been obtained, there is a very specific legal process plaintiffs and defendants must follow to modify the order. Even if the plaintiff and the defendant reconcile, or if the plaintiff chooses to drop charges against the defendant, the restraining order is not automatically dismissed. Either party may file a motion or affidavit to change the order, which a judge must hear in person in court.
If the defendant or plaintiff disagrees with a judge’s TRO or FRO ruling, they may appeal the decision. In addition, either party may also file a motion for reconsideration, which typically happens faster because the same judge who ruled on the restraining order will hear the motion for reconsideration. A motion for reconsideration must be filed within 20 days of the issuance of the FRO. In the case of appeal, the case is sent to the Appellate Division, which is next highest level of court. There, a panel of appellate judges will review the transcripts of the hearing below and review the submissions of your attorney. The Appellate Division will then determine whether the FRO was issued properly or should be amended or overturned.
While New Jersey FROs do not expire, TROs are only temporary. During a final hearing, a judge may choose to dismiss the TRO, extend it or replace it with an FRO. The plaintiff may ask the judge for an extension of the TRO, especially in the case when a court date needs to be rescheduled.
If the plaintiff chooses to drop charges against the defendant, they must formally file a motion for dismissal in the Family Division of Superior Court before a judge. Judges will only dismiss a restraining order if the plaintiff’s testimony clearly indicated the defendant did not coerce or threaten in asking for the dismissal. Defendants may also file for dismissal, which is also known as the “Carfagno motion.” In this case, the judge will consider several factors before ruling, including:
- The plaintiff’s position on the motion to dismiss
- If the plaintiff is still fearful for their safety when near the defendant
- The number of time the defendant has violated the order
- If the defendant has a substance abuse problem
The dismissal of a restraining order does not impact any pending criminal charges the defendant may face, which may occur if the plaintiff filed a request for a restraining order and a criminal charge at the same time.
When a FRO hearing is scheduled, often times the plaintiff does not necessarily want a FRO to be issued. They want to be left alone, but do not want the defendant to have all of the long lasting consequences of a FRO. In those cases, the parties may enter “Civil Restraints”. Entering an order for Civil Restraints is an alternative to entering a FRO. There are benefits and detriments of entering Civil Restraints, which should be discussed and contemplated with legal counsel.
Resources for Domestic Violence Victims
There are several local resources for victims of domestic violence and their children.
In Burlington County, the Providence House/Willingboro Shelter can be reached at their emergency hotline, 609-871-7551.
In Camden County, the Camden County Women’s Center can be reached at their emergency hotline, 856-227-1234.
In addition, victims may call the Statewide Domestic Violence Hotline at 1-800-572-7233.
Obtain Legal Advice From Us Today
The process of obtaining a restraining order can be arduous, and while it can be done individually, it’s recommended both the plaintiff and the defendant obtain legal counsel. The attorneys with Daniel M. Rosenberg & Associates understand how scary, frustrating and confusing this process may be and welcome your questions. Our legal team is competent and experienced when it comes to protecting you and your family’s rights, and are prepared to offer our support, expertise and legal representation for both plaintiffs and defendants alike.