What the Court Needs to Know When Granting a Restraining Order

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Each and every year, New Jersey courts decided whether temporary restraining orders should become final.  In the meantime, it’s not just about proving predicate acts of domestic violence. Nor, is it solely about showing a prior history of abuse. Indeed, there’s more that the court needs to know when granting a restraining order.

First, a quick review of domestic violence laws in New Jersey. Protection under the Prevention of Domestic Violence Act is available to individuals involved in or, formerly part of some intimate relationship. If you’re not sure if you qualify for an order of protection, you should consult with an experienced family law attorney.

In the meantime, NJSA 2C:25-19 provides insight into what constitutes predicate acts of domestic violence. Notably, New Jersey recognizes 19 separate acts as reasons for protection. All correspond to a criminal statute, meaning the perpetrator may also face charges outside family court.

More than likely, you already know that final restraining orders (FROs) hold the potential for serious consequences. Therefore, it’s no surprise that the court does not grant them without careful consideration.  Again, current circumstances matter, as does a history of prior acts of domestic violence.

In deciding whether orders of protection are necessary, the New Jersey courts actually consider six factors as follows:

  • Previous history of domestic violence between the plaintiff and defendant, including threats, harassment, and physical abuse
  • Existence of immediate danger to person or property
  • Financial circumstances of the plaintiff and defendant
  • Best interests of the victim and any child
  • In determining custody and parenting time the protection of the victim's safety
  • Existence of a verifiable order of protection from another jurisdiction

Was this Restraining Order Improperly Granted?

In Silver v. Silver, the court pointed out the difference between ordinary domestic contretemps and domestic violence.  The Silver case requires proof that the victim is in imminent danger and fearful of the potential of another bad act.

Earlier this month, the New Jersey Appellate Division considered a case concerning a final restraining order. The court used the initials A.M. and M.P. to protect the identities of the parties. Also, the opinion does not address a new area of law and does not represent precedent. However, the facts may interest you.

A.M. and M.P. never married, although they have two children together. The children live with their mother, A.M. and see their dad on weekends.

In April of 2018, A.M. filed a domestic violence complaint in municipal court. The local judge granted a temporary restraining order (TRO.) A.M. stated that she and her children’s father had issues regarding their son’s football team and a tax situation.

It is not known why the TRO also prohibited M.P. from contacting the two children, as there are no allegations that he threatened them or harmed them.

When A.M. and M.P. appeared in Family Court for the FRO hearing, both presented evidence of text messages exchanged between them. The court characterized the father’s messages as “angry, racist, sexist, obscene, demeaning, and immature.” Additionally, one of M.P.’s texts threatened to “drag their son off the football field” if A.M. showed up to watch a particular game.

Meanwhile, the court found that A.M. took a more cautious approach in responding to her children’s father. That said, she also accused M.P. of throwing temper tantrums when things didn’t go his own way.

Was the Plaintiff Fearful?

During the court proceedings, A.M. described prior acts of domestic violence that occurred during the period that the couple lived together in the same household. She attributed the defendant’s propensity to rage as related to his use of steroids.

A.M. told the court that M.P. threatened to get her fired from her job. Notwithstanding, she did not mention this in her original complaint. A.M. described how stressed she felt when the defendant became hostile over trivial matters.

The trial found that the defendant’s text messages were offensive. Taking it a step further, the judge also determined that the texts “clearly went over the top” and were sent to harass A.M. For this reason, the court found it necessary to grant the plaintiff a FRO.

In the meantime, one element of the necessary considerations seemingly was overlooked. The judge came to no conclusions regarding whether or not A.M. was fearful of M.P. Additionally, there was testimony regarding what purported to be a prior history of domestic violence. However, the court made no findings concerning those acts.

When the court granted the final restraining order, it limited M.P. from contacting A.M.  He was not restrained from seeing his children but could only use email to communicate with A.M. about the children.

On Appeal

M.P. appealed the entry of the FRO, citing a few issues. For one, he questioned whether the text messages actually constituted an intent to harass. The Appellate Division found that basing a final restraining order on offensive texts alone required “factual findings about the context in which the communications were made.”

By the same token, the courts also take into consideration the subjective reactions that a victim might have to messages. Evidence must support that the purpose of the messages was to “alarm or annoy.”

The Appellate Division determined that the judge made insufficient findings as to the history of abuse and whether the plaintiff was in danger. The Appeals Court remanded the case to the trial court, which might need to hear further testimony to decide whether the FRO should continue.

Contact Us

At the Law Offices of Sam Stoia, we recognize that formerly intimate parties can experience difficulties. We advise and represent clients for family court matters, which can include restraining orders for unmarried and married individuals. Contact us to see how we can help you during this stressful time.