A final restraining order can have serious consequences on a person. On the other hand, it can possibly save the life or improve the life of a domestic violence victim. Either way, male or female, husband, boyfriend, girlfriend and so forth, the courts follow case-law and the domestic violence statute. Aside from the obvious, whether you were dating, were married, are married, have children together or not, there are twelve key factors in determining whether a temporary restraining order should become, final. Crimes that are covered under the prevention of domestic violence act are:
- Assault N.J.S.A. 2C:12-1
- Criminal Mischief N.J.S.A. 2C:17-3
- Harassment N.J.S.A. 2C:33-4
- Terroristic Threats N.J.S.A 2C:12-3
- Criminal Sexual Contact N.J.S.A. 2c:14-1 and/or 2C:14-3
- Sexual Assault N.J.S.A. 2C:14-1
- Kidnapping N.J.S.A. 2C:13-1
- Stalking N.J.S.A 2C:12-10 and/or 10.1
- Lewdness N.J.S.A. 2C:14-4
- Criminal Trespass N.J.S.A 2C:18-3
- Burglary N.J.S.A. 2C:18-2
- False Imprisonment N.J.S.A. 2C:13-3
So while these are the list of crimes that are covered in domestic violence cases, committing one crime does not necessarily mean that a final order will be issued. A domestic violence hearing is not a criminal proceeding but a civil one held in the various family courts in New Jersey. Criminal charges can be filed at the police station if the victim feels the need for immediate police intervention or even after the incident occurred. In the local area we serve: Judge Mark Baber, Judge Gerard Breland and Judge Maureen Mantineo of Hudson are the judges who decide restraining order hearings. Elswehere, Judge Beacham, Judge Epstein, Judge Harris, Judge Gaus, Judge Siegel hear the cases out of Essex and Bergen.
To determine whether a final order is required, the Judge must view all the admitted evidence (police reports, medical records, pictures, recordings, and any other evidence you may have). The victim will testify first and try to make the case as to why a final order is needed. The victim is also permitted to testify to whether there has been a history of domestic violence between the parties whether reported or unreported. The Defendant then has the opportunity to cross-examine the witness or witnesses. A witness’s credibility is a key factor and is on center stage as to whether the Judge believes the testimony. At that point, the Defendant can take the stand, can call witnesses to refute or impeach the testimony of the victim and then the Judge will decide.
The factors a judge must consider as to whether a final order should be granted aside from credibility, proof and other factors is:
- The previous history of domestic violence between the parties, including threats, harassment and physical abuse;
- The existence of immediate danger to person or property;
- The financial circumstances of the plaintiff and defendant;
- The best interest of the victim and any child;
- The existence of a verifiable order of protection from another jurisdiction.
So while you may think yelling at the victim in the past or getting into an argument with the victim was simply a relationship dispute, if framed correctly, it can be damning. It is critical to prepare for a final restraining order hearing because once a final order is issued, it is final absent good cause shown.