Final Restraining Orders (FRO’s) are permanent in the State of New Jersey, which means that they do not have an expiration date. Without going to court to request a change in the FRO, it will continue to be valid indefinitely. In order to remove, modify, or dissolve a FRO the victim (the person who is being protected by the FRO) or the defendant (the person the FRO is entered against) must go before the court and request that such a change be made.
Once a motion is made to dissolve a FRO, a judge will review the court documents that led to the issuance of the FRO in the first place, and then it will inquire about the current state of the parties relationship to determine whether or not to dissolve the FRO.
The Carfagno Factors
The judge will look to several factors to determine whether there is a good reason to dissolve the FRO. The 11 factors contemplated are taken from the 1995 New Jersey case Carfagno v. Carfagno.
Voluntary Consent of the Victim
The first factor, and arguably the most important factor is whether the victim voluntarily consents to the dissolution of the FRO. If the judge determines that the victim wants to dissolve the FRO, and that consent is being given voluntarily, the court will end its inquiry at this factor and will dissolve the FRO.
If the judge does not find that the victim voluntarily consents to the dissolution of the FRO, the analysis will continue.
The Victim’s Fear of the Defendant
Since FRO’s protect the victims of domestic violence, the fear contemplated by this factor is not limited to physical danger, but also mental and emotional abuse. A judge will seek to determine whether the victim has a reasonable fear of the defendant.
The Nature of the Current Relationship of the Parties
If a restraining order was put in place, then at some point the nature of the relationship between the parties was one that required a court order of protection. The court will try to determine how and if that negative relationship has changed. The key question is whether the defendant has the power to exercise over the victim. If, for example, the parties have a child together, the court may be less inclined to dissolve the FRO. If the parties live far apart, if the parties have each “moved on” with their lives that no longer involve contact between defendant and victim, the judge may find it more appropriate to dissolve the FRO.
The judge will look at whether, and on how many occasions, the defendant has been convicted of contempt for violating the FRO.
Drugs and Alcohol
The use of drugs and alcohol may be an indication that the victim requires continued protection of the FRO, as the use of those substances is often an important factor in domestic violence cases.
Other Violent Acts
If the defendant has engaged in other acts of violence against other parties, it may be an indication that the abuse toward the victim continues to be a threat requiring the FRO to remain in place.
Domestic Violence Counseling
If the defendant has received counseling, that fact may lead a judge to consider that the cycle of abuse.
Age and Health of the Defendant
If the defendant is of advanced age or of bad health, the judge may consider dissolving the FRO appropriate.
Good Faith of the Victim
Here, the judge will consider whether the victim is acting in good faith to oppose the defendant’s wish to dissolve the FRO.
Orders Entered in Other Jurisdictions
Restraining orders in place in other states are entitled to enforcement in New Jersey. If the victim already has a FRO in place elsewhere, the judge will take that into consideration.
Other Factors Deemed Relevant
Finally, a judge will consider any other relevant factors to the case.
If you have a restraining order in place that you wish to modify or dissolve, please contact the Law Offices of Peter Van Aulen for a free consultation.
Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995).