DOMESTIC VIOLENCE/ RESTRAINING ORDER
To obtain a restraining order an alleged victim has to prove by a preponderance of the evidence (that it is more likely than not) that:
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​1. The Court has jurisdiction. The Plaintiff and Defendant are/were spouses, domestic partners, in a dating relationship, or household members, or have or are having a child together. The Courts have expanded the definition of “household member” at times to include an employee who comes into the household, or a relative or former relative who resides in the same complex.
2. The Defendant commit an act of domestic violence as set forth in the statute below. The most common acts are assault, harassment, terroristic threats, and/or criminal restraint. However, now if a Defendant violates the temporary restraining order issued before final hearing, the Plaintiff can amend his/her complaint to allege contempt of the Restraining Order.
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​3. The Restraining order has to be necessary to protect the Plaintiff. A history of domestic violence and any prior acts committed by a Defendant against a Plaintiff will help prove the restraining order is necessary. A Plaintiff must be afraid of the Defendant.
The statute in NJ that governs a Domestic Violence Restraining Order is
2C:25-19
a."Domestic violence" means the occurrence of one or more of the following acts inflicted upon a person protected under this act by an adult or an emancipated minor:
(1)Homicide N.J.S.2C:11-1 et seq.
(2)Assault N.J.S.2C:12-1
(3)Terroristic threats N.J.S.2C:12-3
(4)Kidnapping N.J.S.2C:13-1
(5)Criminal restraint N.J.S.2C:13-2
(6)False imprisonment N.J.S.2C:13-3
(7)Sexual assault N.J.S.2C:14-2
(8)Criminal sexual contact N.J.S.2C:14-3
(9)Lewdness N.J.S.2C:14-4
(10) Criminal mischief N.J.S.2C:17-3
(11) Burglary N.J.S.2C:18-2
(12) Criminal trespass N.J.S.2C:18-3
(13) Harassment N.J.S.2C:33-4
(14) Stalking P.L.1992, c.209 (C.2C:12-10)
(15) Criminal coercion N.J.S.2C:13-5
(16) Robbery N.J.S.2C:15-1
(17) Contempt of a domestic violence order pursuant to subsection b. of N.J.S.2C:29-9 that constitutes a crime or disorderly persons offense
(18) Any other crime involving risk of death or serious bodily injury to a person protected under the "Prevention of Domestic Violence Act of 1991," P.L.1991, c.261 (C.2C:25-17 et al.)…
d."Victim of domestic violence" means a person protected under this act and shall include any person who is 18 years of age or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present household member or was at any time a household member. "Victim of domestic violence" also includes any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant. "Victim of domestic violence" also includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.
See Silver v Silver which is an Appellate Division case setting forth that the issuance of a Restraining Order must be necessary.
Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).
When obtaining a temporary restraining order, a victim should be detailed, start with the most recent incident which prompted the need for a temporary restraining order, and then recite all prior incidents. A victim must ensure that all incidents are encompassed in the complaint. If a victim does not include all incidents, he/she may not be permitted to testify about omitted incidents at hearing, and may have to request an adjournment to amend his/her pleadings.
Where to file for a Restraining Order:
If there is an incident in the evening or on a weekend, call 911 or go to your local police station.
If you apply during the day, between 9AM-approximately 3PM Mon-Fri, go to your county courthouse, family part, domestic violence unit.
Restraining orders are serious.
They can provide a victim with protections and the Court has broad discretion to grant a laundry list of relief at final hearing including support, possession of a home, custody, damages, attorney fees, etc.
Moreover, a Defendant will be registered and could have problems with employment, professional licenses, etc.
All parties should consult with experienced counsel before the final restraining order hearing of a domestic violence complaint.