For many New Jersey residents in unsafe home situations, a restraining order is an important part of an overall safety plan. Restraining orders can be appealed through court process. While this is a necessary part of a fair legal system, it means the order isn’t necessarily finalized once the judge approves it. By understanding the New Jersey restraining order process, plaintiffs can be better protected from challenges made on appeal.
The New Jersey Revised Statutes allow a victim of domestic violence to seek a temporary restraining order against the person who has committed an act of domestic violence. Such an order may be issued ex parte, meaning the defendant is not present at the court, and has no right to be heard on the matter before the order is issued. This procedure is an important safety mechanism for victims who are in immediate danger.
However, because ex parte orders are inherently unfair to the defendant, such orders can be immediately appealed. Section 2C:25-29 of the New Jersey Revised Statutes lists six factors which a court shall consider at a hearing on the defendant’s appeal. These include: any previous history of domestic violence between the parties; any immediate danger to a person or property; the financial circumstances of the parties; the best interests of the victim and any children who are involved in the dispute; the protection of the victim’s safety in resolving matters of custody and parenting time; and any other protective orders which exist in other jurisdictions. A court tasked with hearing a defendant’s appeal of a restraining order shall consider these factors, but is not limited to only evidence on these issues.
Knowing the factors a court must consider does not ensure a plaintiff can successfully use them to defend a restraining order, with the help of a Somerset family law attorney. Challenges are heard on a case-by-case basis, and the outcomes of such hearings will be highly dependent upon the facts under which a particular restraining order was issued. A recent opinion issued by the Appellate Division of the state Superior Court on December 15, 2017, demonstrates how judges can apply the facts of a case to appellate challenges. In the case of H.G. v. E.G., a wife sought a restraining order after a fight escalated into physical confrontation, and her husband prevented her from leaving. She was forced to lock herself in a bedroom and call for police assistance. The wife applied for – and was granted – a temporary restraining order the next day. In her application, she listed the extensive history of abuse she had suffered at the hands of her husband. This extensive control over the money she spent and the food she ate. Her husband had reportedly placed her on a diet without meat or dairy which consisted of only two meals per day.
The husband challenged the order and denied that he had ever attempted to stop his wife from leaving the house. The court acknowledged that the acts of domestic violence on the day of the confrontation were “weak,” and could very easily be construed as domestic disputes. Nonetheless, the judge upheld the restraining order due to the “alarming history” between the couple. When the husband appealed this finding to the Appellate Division, it, too, deferred to the judge’s finding of a history of abuse. Contrary to the husband’s arguments, the history of abuse between the parties did not have to be physical. Because harassment is a predicate act listed in the New Jersey domestic violence statutes, the need to prevent further harassment will support an affirmation of a restraining order. The Appellate Division affirmed that the history of controlling conduct by the husband constituted such harassment.
Because the circumstances surrounding domestic violence can vary so greatly, it is important that plaintiffs seek the advice of an experienced New Jersey restraining order attorney who is skilled in defending protective orders.
If you need assistance in obtaining or defending a restraining order, contact the Somerset County family law attorneys at Rozin|Golinder Law LLC by calling (732) 377-3367.
