Our legislature has aimed to ensure victims of domestic violence have “the maximum protection from abuse the law can provide.” N.J.S.A. 2C:25-18. In doing so, they have created a civil remedy in the form of the ability to obtain temporary and Final Restraining Orders (FRO) to provide protections outside of the criminal arena.
To obtain an FRO, you must show, by a preponderance of the evidence:
You qualify as a victim of domestic violence
There are two broad categories that qualify someone as a “victim of domestic violence,” the definition of which is found within N.J.S.A. 2C:25-19. In the first category, you must be a person over the age of 18 or an emancipated minor, and your abuser must be your spouse, former spouse or a current or former household member (the definition of household member has gotten wider and wider as the years have gone on), on order to provide victims with the “maximum protections” promised.”
In the second category, age of the victim is not a qualifier. In these circumstances, your abuser must be someone whom you have a child in common, anticipate having the child in common or have (or had) a dating relationship with. Again, “dating relationship” is incredibly broad, and has even included a relationship based purely on “sexting.”
Your abuser committed a predicate act of domestic violence
Acts of domestic violence are found in N.J.S.A. 2C:25-19 and are based on criminal statutes. There are currently 19 such predicate acts: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, stalking, criminal coercion, robbery, contempt, cyber harassment or “any crime, if it involved the risk of death or serious bodily injury to any person protected under the prevention of domestic violence act.”
“Harassment,” of course, is the most common predicate act and involves, in general terms, conduct that has no legitimate purpose and is likely to cause the victim annoyance or alarm.
It’s important to note that although burglary is a predicate offense, theft is not. Burglary is the entry of an area that one is not permitted to enter with the intent to commit another criminal offense. It is commonly associated with theft (i.e., illegally entering a home and then stealing something), but any criminal offense can count.
“Assault” includes both simple and aggravated assault, which for all intents and purposes means you only need to show even the most minor of injuries or pain in order to demonstrate this predicate offense. Keep in mind that simple assault includes any “attempt to cause…bodily injury to another,” so if someone attempts to hit their victim and misses, that will still qualify as an assault.
It’s important to recognize that Temporary Restraining Orders (TRO) can be amended if contempt has been committed after a TRO has been entered. If a contempt occurs, it will significantly strengthen your domestic violence case and increase the likelihood of obtaining an FRO.
Remember, “predicate offense” is important language here. It may be that acts of domestic violence have been committed in the past, but timing matters. While there is no brightline rule as to the timing for obtaining a TRO after a predicate offense occurs, the closer in time to the offense, the more likely you are to be successful. Conversely, the further in time from an offense, the more a defendant should argue same does not qualify as a predicate offense.
You need a domestic violence restraining order
The seminal case on this matter is Silver v. , but the basis for this is found in N.J. .A. 2C:25-29. That section of the statute discusses that at an FRO hearing, the court shall “consider the necessity of ordering a restraining order,” and consider 7 different factors:
- History of domestic violence.
- Existence of immediate danger to person or property.
- Financial circumstances of the plaintiff and defendant.
- Best interests of the victim and any child.
- Protection of the victim’s safety when determining custody and parenting time.
- Existence of any other order of protection in any jurisdiction.
- Pattern of coercive control.
These factors are all important, although Silver and its progeny also teach us that when the domestic violence is physical in nature, the need for a restraining order will largely be self-evident and the analysis of the factors will be perfunctory in nature.
Coercive control is the newest part of this statute, only added in the last couple of years. The full definition is in the statute, and there are specific examples given of what could constitute coercive control should also be reviewed.
One final tip: keep in mind that domestic violence FRO hearings are summary proceedings. You are not entitled to discovery.
