Legal Requirements for Issuance of a Restraining Order

Aberdeen NJ Restraining Order Lawyers

Obtaining a temporary restraining order is not a matter of simply signing a domestic violence complaint in New Jersey. The law imposes requirements which must be met in order for a “victim” to prove that they are entitled to the protections afforded by a restraining order. While there is admittedly a propensity that we find on the part of judges to lose sight of each and every element of the law when it comes to making the call as to whether or not a restraining order should initially be issued, this is where a skilled criminal lawyer can be so important. By focusing on the requirements of the law and continually pounding this point home, our restraining order attorneys can frequently restore the situation to one that is much more fair and, more importantly for your purposes, one where the plaintiff is forced to satisfy his or her burden as required by the law. Call our firm at 732-450-8300 for a free consultation regarding a restraining order issued in Freehold at the Family Division or in a municipality like Aberdeen, Colts Neck, Fair Haven, Hazlet, West Long Branch or Union Beach.

Proving a Temporary Restraining Order

To obtain a temporary restraining order, the plaintiff must: (1) prove that he or she is a protected victim under the domestic violence act; (2) that they have been subjected to “domestic violence”; and (3) that the issuance of an emergency ex parte restraining order (i.e. an order prior to hearing the defendant’s side of the story) is necessary to protect the life, health or well-being of the plaintiff. Domestic violence has occurred for purposes of (2) where one of the following has been inflicted: homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual contact, lewdness, criminal mischief, burglary, criminal trespass, harassment, or stalking. But it must be kept in mind that it is not enough that a predicate act alone has occurred — the offense must be knowing or purposeful to constitute “domestic violence” . Mere negligence in causing an incident does not constitute domestic violence. In addition, the knowing or purposeful act must be committed by an adult to qualify as an act of domestic violence.

Obtaining a Final Restraining Order

The requirements for continuing the temporary relief on a permanent basis, namely, issuance of a final restraining order, are essentially the same as those previously set forth. The only significant difference is that the defendant has the right to tell his side of the case and present his defense at a final restraining order hearing whereas no opportunity is proved at the time of consideration of the TRO. In determining whether the restraints should become final and permanent, the court is supposed to consider: (1) the previous history of domestic violence between the parties, including prior or existing orders of protection (e.g. order from another jurisdiction); (2) whether there is immediate danger to the plaintiff; (3) financial circumstances between the parties; and (4) best interests of the victim and any children.

Howell Restraining Order Defense Attorney

The impact of a restraining order is dramatic in most cases and is therefore nothing that we would suggest you handle without the assistance of an experienced lawyer. An attorney in our Wall Office, Red Bank Office or Freehold Office would be happy to go over the facts of your case and how we think we can help you. This initial consultation is without charge so do not hesitate to give us a call anytime.