In matters involving domestic violence, a restraining order often becomes a reality. In fact, in a prior article, we gave you some statistics concerning the prevalence of domestic violence in family law cases. Nevertheless, restraining orders can create problems when it comes to some employment and license applications. For that reason, the defendant may attempt to get the restraining order dismissed.
Many times, a restraining order is entered during the course of the parties’ marriage or their separation. Of course, it may even be that domestic violence issues are the reason for the divorce. However, there may be a time that things seem to calm down. There’s even the chance that both parties may find that it is no longer necessary to keep the restraining order in place. So, what then?
How Does a Restraining Order Get Dismissed?
First and foremost, there must be a showing of “good cause” for the court to consider the reasons that a dismissal request should be entertained. For this purpose, the judge will be guided by factors described in Carfagno v. Carfagno, 288 N.J. Super. 424, 430 (Ch. Div. 1995) and N.J.S.A. 2C:25-29(d).
According to the statutory requirements, application to dissolve the restraining order must be made to the same judge who entered the original order. The Carfagno case maintains that the following eleven questions must be answered in considering dismissal of a restraining order:
- Has the victim consented to the dissolution of the restraining order?
- How fearful is the victim of the defendant?
- What is the current relationship status of the victim and defendant?
- What are the number of times the defendant has been in contempt of the restraining order?
- Does the defendant have continuing involvement with drugs and alcohol?
- Has the defendant been convicted of other violent acts against the victim or others?
- Has the defendant engaged in domestic violence counseling?
- What is the age and how is his/her health?
- If the victim is opposing the restraining order dissolution, is it done with good faith?
10. Is the victim protected by a court order from another jurisdiction?
11. Are there other factors that the court might find relevant to the proposed dismissal?
The court takes the quality of the answers to these questions in considering whether a defendant has shown good cause for the dissolution of the restraining order. See how the court applied the law in a recent New Jersey case.
Recent Case on Dissolution of Restraining Order
Early last month, the Appellate Division weighed in on the dissolution of a restraining order in TMS-v-WCP, A-4900-15T2. According to the facts of the case, a temporary restraining order was entered against the defendant back in 2006. It became final a little over a month later when the defendant admitted to the act of domestic violence.
A couple of years later, the defendant motioned the court requesting the dissolution of the final restraining order. There is no indication concerning the reason the application was denied. Notwithstanding, the defendant made a subsequent motion seeking the same relief in 2014. Although it appeared that the plaintiff was properly served, she did not appear for the hearing. Her failure to appear was interpreted as no opposition to the motion, and the judge granted a dissolution of the restraining order.
Since the restraining order was no longer in effect, the defendant then sought to vacate the order regarding weapons forfeiture. During the course of that hearing, there was a question concerning whether or not the plaintiff was aware that the final restraining order had been dissolved. As a result, it seemed apparent that the plaintiff was not properly served with the defendant’s application to dissolve the restraining order. Consequently, the court itself made the decision to reinstate the restraining order.
The ruling did not sit well with the defendant. He argued that the court could not just arbitrarily restore a restraining order. Instead, he felt that it was up to the plaintiff to request it remains in effect. The defendant relied on the Prevention of Domestic Violence Act to back up his argument.
After the restraining order was reinstated, the judge ordered a new Carfagno hearing. However, a different judge was assigned to the case. The defendant’s request to vacate the final restraining order was turned down. Subsequently, a motion for reconsideration filed in 2016 was also denied.
Defendant Appeals Family Court Decision
As a result of the Family Court’s decision, the defendant brought the matter up on appeal. He addressed a couple of issues. For one, the case was not heard by the same judge who granted the original final restraining order. It was his contention that domestic violence laws require that the same judge hear the case from beginning to end.
In making the decision to reverse the Family Court’s decision, the Appellate Division took a look at the State of New Jersey Domestic Violence Procedures Manual. The document’s language states that when a defendant applies to dismiss a restraining order, “t]he court shall make reasonable efforts to find and notify the plaintiff of the request for dismissal but unless good cause is shown, the court cannot hold a hearing on this application unless the plaintiff is given notice and an opportunity to be heard."
Based on that information, it would appear the restraining order should not have been dismissed in the first place. After all, it was up to the court to serve the plaintiff as her address was to remain confidential.
Notwithstanding, the same manual also contains information regarding the procedure for reinstating dismissed restraining orders. Of interest, is that for a plaintiff to reopen a vacated restraining order, the plaintiff must file an application with the court. The exception is when there is a new act of domestic violence.
The Appellate Division did not find an issue with the fact that the defendant’s motion was heard by two different judges. This is indicative of the busy schedule of the courts. Since the second judge had access to the original record, it was not a problem. Although the defendant was concerned about “double jeopardy,” this was not considered an issue because the domestic violence case was not a criminal matter. Double jeopardy does not apply to civil cases.
In the end, the Appellate Division decided that the restraining order should not be reinstated unless the plaintiff made a motion requesting it.