In the case of Silver v. Silver, 387 N.J. Super. 112 (2006), the appellate court set forth a two-part test to be applied by a trial judge in determining whether the entry of a Final Restraining Order (FRO) is appropriate.
First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in the statute. A preponderance of the evidence is whether it is more likely than not. The trial court should make this determination in light of the previous history of violence between the parties.
The predicate acts of domestic violence are found at N.J.S.A. 2C:25-19:
(1) Homicide N.J.S.2C:11-1 et seq.
(2) Assault N.J.S.2C:12-1
(3) Terroristic threats N.J.S.2C:12-3
(4) Kidnapping N.J.S.2C:13-1
(5) Criminal restraint N.J.S.2C:13-2
(6) False imprisonment N.J.S.2C:13-3
(7) Sexual assault N.J.S.2C:14-2
(8) Criminal sexual contact N.J.S.2C:14-3
(9) Lewdness N.J.S.2C:14-4
(10) Criminal mischief N.J.S.2C:17-3
(11) Burglary N.J.S.2C:18-2
(12) Criminal trespass N.J.S.2C:18-3
(13) Harassment N.J.S.2C:33-4
(14) Stalking P.L.1992, c.209 (C.2C:12-10)
(15) Criminal coercion N.J.S.2C:13-5
(16) Robbery N.J.S.2C:15-1
(17) Contempt of a domestic violence order pursuant to subsection b. of N.J.S.2C:29-9 that constitutes a crime or disorderly persons offense
(18) Any other crime involving risk of death or serious bodily injury to a person protected under the “Prevention of Domestic Violence Act of 1991,” P.L.1991, c.261 (C.2C:25-17 et al.)
(19) Cyber-harassment P.L.2013, c.272 (C.2C:33-4.1)
Second, the court must determine whether a restraining order is necessary, upon an evaluation of the factors set forth in the statute to protect the victim from an immediate danger or to prevent further abuse in the future. In many situations it is clear that if there was a predicate act, then the FRO is necessary. While it may seem obvious that once the court has determined that an act of domestic violence has occurred that the court would grant a FRO is not automatic. Rather, the court has very specific fact finding that it must make to grant the order. This determination must be made based on a totality-of-the circumstances analysis.
The statute provides that the court shall grant any relief necessary to prevent further abuse. The inquiry is fact specific, requiring consideration of the following factors: the previous history of domestic violence between the plaintiff and defendant, 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 interests of the victim and any child; if custody and parenting time is a factor then the protection of the victim’s safety; and the existence of a verifiable order of protection from another jurisdiction.
When the predicate act is an offense that inherently involves the use of physical force and violence, the decision to issue an FRO is most often perfunctory and self-evident. But the trial court must still evaluate the factors noted above to determine whether an FRO is warranted to protect the victim from an immediate danger or to prevent further abuse. Courts have also considered whether a court may refuse to issue restraints despite finding that a defendant committed one of the predicate acts listed in and held that they can.
Establishing all of these factors for the court are complicated. Defending against these factors is likewise complicated. The entry of a FRO is permanent and the violation of the FRO is a criminal contempt charge that may lead to incarceration. If you have obtained a restraining order or been served with a restraining order, contact the experienced attorneys at Baker Legal Group for a consultation to discuss your options.