Articles Tagged with nj restraining order

There is no shortage of cases concerning NJ Restraining Orders, and the most recent appellate case on this topic just came down on June 5. In T.M.S. v. W.C.P., the issue was whether the court abused its discretion by reinstating a final restraining order against the plaintiff, T.M.S, sua sponte, or on its own. The appellate court held that the lower court did in fact abuse its discretion and denied the defendant due process under the law. It reversed the court’s ruling. The (somewhat confusing) procedural facts are as follows:

A temporary restraining order (TRO) had been put in place due to domestic violence which TMS had admitted to. A final restraining order (FRO) was implemented, which TMS moved to vacate. He was denied. He filed again to dismiss the FRO, and WCP did not appear for the hearing, despite being properly served with notice. As a result, the court granted the unopposed application to vacate the FRO. With this victory, defendant then moved for relief from having to forfeit his weapons. At this hearing, there was a question of whether plaintiff was actually properly notified of the original dismissal of the FRO, and so, the court reinstated the FRO (and so, the weapons forfeiture matter was dismissed).

In determining whether a final NJ restraining order can be dismissed, the court relies on eleven factors from the Carfagno case if there is good cause for dismissal. The factors are: (1) whether the victim consented to lift the restraining order; (2) whether the victim fears the defendant; (3) the nature of the relationship between the parties today; (4) the number of times that the defendant has been convicted of contempt for violating the order; (5) whether the defendant has a continuing NJ restraining order because she wasn’t there – but the trial court did note that the defendant had never violated the order, defendant’s consistent sobriety, attended domestic violence counseling, and suffered from health problems that made it difficult for him to inflict any violence, even if he had wanted to. Therefore, on the basis of these factors, the judge determined that the FRO was no longer required to protect the plaintiff.

involvement with drug or alcohol abuse; (6) whether the defendant has been involved in other violent acts with other persons; (7) whether the defendant has engaged in counseling; (8) the age and health of the defendant; (9) whether the victim is acting in good faith when opposing the defendant’s request; (10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and (11) other factors deemed relevant by the court. Continue reading

Restraining orders are legal orders that protect a person or multiple people from another person. Restraining orders are issued where the defendant has committed an act of domestic violence, and orders him or her not to contact the victim or else be subject to arrest. Different states have different procedures in place for securing a restraining order. Obtaining a NJ restraining order has two main steps. In the first step the plaintiff (the person who wishes to obtain the restraining order) files a complaint with the court, and the court either grants or denies a Temporary Restraining Order (TRO). In the first step, the court only considers the plaintiff’s side of events without yet hearing from the defendant, which is why it is only temporary. If the court orders the TRO in the first step, the second step is a hearing with both parties, usually within 10 days after the TRO was ordered. During this hearing, the court will consider whether to make the restraining order permanent, called a Final Restraining Order (FRO).

Silver v. Silver – Two-Step Test for NJ Restraining Orders

Silver v. Silver is a seminal New Jersey case that articulates the two-step test that a court applies in determining whether to order a FRO. First, the defendant must have committed an offense (called a predicate act) that is prohibited by the New Jersey Prevention of Domestic Violence Act. Second, the court must find that a FRO is necessary to protect the Plaintiff from future harm or threats of violence.

A.M.C. v. P.B.  – The Facts

It is the second step of determining whether to make the NJ restraining order a permanent one, and the second step of the Silver test that is at issue in the October 21, 2016 New Jersey case of A.M.C. v. P.B. In A.M.C., a wife sought and received a TRO against her husband, a NJ police officer. At the FRO hearing the wife and her estranged husband were present, and the wife alleged that her husband had assaulted her on at least two separate occasions during a three-week period that culminated in her fleeing their home to seek refuge at a women’s shelter and that he verbally threatened to harm her in the future. The husband denied the allegations. Continue reading

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