How Do I Obtain a Restraining Order?
Posted on: October 3, 2022
Domestic abuse frequently goes unreported or unresolved. Whether it comes in the form of physical violence, harassment, stalking, sexual assault, or terroristic threats, domestic violence can negatively impact a survivor’s well-being.
Besides physical harm, victims of domestic violence are often left with a sense of fear, depression, or anxiety. Many survivors of domestic violence are either afraid to report it, or are unsure of what course of action to take.
Fortunately, like other states who have in recent decades taken major steps forward to protect survivors of domestic violence, New Jersey has laws and procedures in place that could help prevent domestic violence from occurring or reoccurring.
One way to get protection under the law from domestic violence is to seek a restraining order. A restraining order is a legal document provided by the court to preventthe person named on the document as the defendant from contacting or coming into contact with the plaintiff. If the restraining order is violated, the defendant can be jailed.
The truth is that without seeking help, those living with domestic violence are less likely to escape the situation. It is essential that victims of domestic violence know about restraining orders to remain safe and take advantage of the laws in place.
Who Qualifies to Get a Restraining Order?
First, it is important to remember that although restraining orders are a civil matter, any violation of a restraining order is considered a criminal offense. Restraining orders are normally issued when there has been a relationship of some sort between the plaintiff and the defendant.
Survivors can obtain a restraining order if:
- They are married to or were married to the offender;
- Share children with the offender;
- Are pregnant with the offender’s child;
- Live or previously lived with the offender, granted the victim is 18 years old;
- Or, regardless of age, have or had a dating relationship with the offender, granted the offender is at least 18 years old.
What Type of Crime Must Be Reported to Obtain a Restraining Order?
In order to be granted a restraining order by a judge, the offender must have committed a serious offense, including but not limited to assault, sexual assault, harassment, kidnapping, robbery, stalking, terroristic threats, lewdness, or criminal trespass.
Any crime that places the victim at risk of death or bodily injury is cause to obtain a restraining order. The plaintiff filing a restraining order must be at least 18 years old.
How Does a Person Go About Getting a Restraining Order?
The first step for obtaining a restraining order is to seek a temporary restraining order (TRO). This can be requested from your local police department or a family court.
Seeking a TRO from a police department can be done 24 hours a day, seven days a week. Survivors can go to a police department where the incident occurred, in the town where they live, in the town where they are sheltered, or in the town where the defendant lives.
A police department will have you speak with a municipal court judge over the phone. Once the order is issued, the police will serve the defendant with the TRO, usually within ten days. At that time, the police will provide the defendant with the date of the final restraining order (FRO) hearing, which is likely to take place within a few weeks.
The police are required to seize the defendant’s firearms. A defendant who lives in the same town as the plaintiff will most likely have to move out of town until the hearing. This is also true in the case where the defendant owns the home. An uncooperative defendant may be arrested.
Seeking a TRO from a family court requires filling out paperwork. Afterward, a judge will speak with the plaintiff. Once the TRO is issued, the court will be responsible for making sure that the defendant is served, and the same rules will apply.
What Information Should You Provide to the Judge to Get a Restraining Order?
A judge will not take your situation lightly. Your safety is a judge’s main concern. However, the judge will want to hear as much information as possible to warrant issuing a restraining order, which is considered a serious matter.
You should offer as much information as you can think of. Speaking in detail about the incident is important for both a TRO or FRO. A TRO, however, may be easier to get.
Remember that the judge needs to hear that the accused committed an act in violation of the law. This includes threats to commit crimes not yet committed, which would qualify as terroristic threats. Be as detailed as possible, including a description of any physical or sexual abuse, name-calling, inappropriate touching, stalking, or any other abuses that will add to your case.
Start with the most recent incident, but you should also provide information about previous incidents, starting with the most severe or damaging. Remember that it does not matter whether or not you have previously discussed these incidents with anyone else. Judges are aware that many domestic violence cases go unreported due to the serious effects they often have on victims.
When going to court for your FRO, make sure to bring any evidence that will help, including witnesses, medical treatment for injuries, video or audio tape, etc. Bear in mind, however, that these are not required.
What Happens When You Go to Court for the Final Restraining Order?
Unlike a TRO, the hearing to Obtain a FRO will give both parties the opportunity to testify and submit evidence. For the judge to agree that the FRO should be issued, it must be shown that both parties are or were engaged in a domestic relationship of some sort, including marriage, dating, parenting, or members of the same household.
The judge will need to find that the defendant committed an act of violence, or that not issuing the order could result in future incidents of violence. To issue an FRO specifically for sexual assault, the judge must find that non-consensual sexual contact or attempted contact took place, or that there was a behavior that exhibited the potential for a sexual assault to take place.
What Does a Restraining Order Accomplish?
Although a TRO will prevent contact between the abuser and survivor in any form, a FRO will normally extend much further. The plaintiff can also make requests for provisions that are unique to the circumstances.
In a TRO or FRO, a judge may grant:
- Temporary custody of children;
- Financial support, including rent, mortgage, or other obligations;
- Counseling or therapy;
- Extended protection from violence;
- And prevent the defendant from owning or possessing a firearm.
A judge may also:
- Limit or suspend the defendant’s visitation rights;
- Give you possession of the home in which you currently live, even if you do not own the home;
- Give you possession of a vehicle, even if you are not the owner;
- And give you possession of your children’s important documents, such as birth certificates or passports.
What Happens When a Person Violates a Restraining Order?
If a person violates a restraining order by committing an act that is considered in and of itself a crime or disorderly persons offense, that person is charged with a fourth-degree crime. If a person violates a restraining order in any other way, that person is charged with a disorderly persons offense.
A fourth-degree crime in New Jersey carries a penalty of up to a $10,000 fine and 18 months in prison. A disorderly persons offense carries up to a $1,000 fine and 6 months in prison. A second violation of a restraining order carries a mandatory sentence of 30 days in prison. Multiple violations could result in up to five years in prison.
Freehold Criminal Defense Lawyers at Ellis Law Represent Those Involved in Situations that Warrant a Restraining Order.
If you need representation for a situation for which a restraining order is needed, you need competent legal representation. Our experienced Freehold criminal defense lawyers at Ellis Law will fight hard to get you the protection and any provisions you deserve. Call us at 732-308-0200 or contact us online for a free consultation. Located in Freehold, New Jersey, we serve clients in Freehold, East Brunswick, Jersey City, Middletown, Neptune, Hudson County, Union County, Essex County, and Ocean County, New Jersey, as well as Brooklyn and New York, New York.
