It’s not something you are exactly proud to admit. When you broke up your engagement, things got ugly. In fact, they rose to the level of domestic violence. Ultimately, the court executed a final restraining order (FRO) against you. However, that was then. You’re pretty sure that a restraining order is no longer necessary. Your goal is to have it lifted, so it’s no longer shows up as a blemish.
It’s not just that you are embarrassed. At the time, you were angry and gave every indication that your former fiancé had reason to be afraid. The judge explained that the FRO was designed to protect the victim from additional harassment or harm. For whatever reason, you didn’t understand how long it would be in place. Also, it didn’t really occur to you that anyone else could learn of its existence. In fact, you were unaware that under New Jersey law, there is a central registry of all domestic violence restraining orders.
For many, an FRO remains in place indefinitely while both parties go about their lives. But what if you or your ex wants to have the FRO modified or lifted? While it is possible for a court to amend or lift an FRO, New Jersey law sets a high bar in order to protect the victims of domestic violence.
First, you should know that a final restraining order may only be dissolved or modified by the judge who entered the order. If that judge is unavailable or no longer on the bench, the statute requires that the new judge must have a complete record of the hearing upon which the FRO was based. All things considered, it just makes sense.
A complete record includes the entire court file, the FRO, and a transcript of the FRO hearing. If the party seeking the change in the FRO fails to include with their motion the complete record the court has no choice but to deny the request. But what if the transcript of the hearing is unavailable? Is it possible to reconstruct the record?
Transcripts Were Unavailable: What Now?
The New Jersey Appellate Division was recently called upon to determine what happens when transcripts are unavailable. G.M. v. C.V. is a published decision and is therefore considered precedential law. The case uses the party’s initials to protect their anonymity.
After a ten year marriage, G.M. and C.V. divorced in 2004. A few months after their divorce, G.M. obtained a restraining order against his former wife. Proofs were offered that showed a pattern of harassment, with possible allegations that C.V. was stalking him and assaulted G.M. The restraining order restricted C.V. from contacting her ex-husband’s girlfriend and place of employment. Contact between G.M. and C.V. was to be limited to non-harassing conversations related to their children.
Years passed, and circumstances changed. G.M. moved to Florida; he also remarried. In 2016, C.V.made an application requesting reconsideration of the FRO. In her certification, C.V. stated that she had the support of G.M.’s former girlfriend to lift the restraining order. C.V. further indicated that her ex-husband was no longer afraid of her.
In making the motion to vacate the FRO, C.V. supplemented her submittal with an email. She was unable to include the transcript of the 2004 hearing because the court told her that one of the tapes was blank. A second tape only included the Judge’s decision.
During the hearing to remove the restraining order, G.M. requested that it stay in place. He characterized C.V. as "violent, irrational, and mentally unstable.” Additionally, G.M. stated that he was still fearful of C.V. Meanwhile, other evidence was produced that might be viewed differently. For example, G.M. stayed in a hotel room with his ex-wife and children even after the restraining order was in place.
The trial judge denied C.V.’s motion for reconsideration, stating that it without the original hearing transcript, there was “almost no record on which to rely” concerning the legitimacy of G.M.’s fears. However, it was not C.V.’s fault that she was unable to produce the transcript.
Upon appeal, the Appellate Division held that a party’s failure to include a completed record could have a negative impact. However, a transcript that was unavailable due to no fault of the moving party could not. In this matter, the Court held that a defendant’s due process rights were violated because the Court’s clerical error prohibited her from consideration.
What should happen instead? The court held that if the transcript was completely unavailable through no fault of the moving party, other steps were in order. This included the necessity to provide evidence to establish a change in circumstances. It would then be up to the court to attempt to “reconstruct the record” of the FRO hearing. This process is designed to provide as complete of a record as possible to the proceedings that led to the granting of the FRO.
Guidelines For Reconstructing the Record
The concept of reconstructing the record of a hearing isn’t new to New Jersey law. In fact, in their decision, the Court simply expanded an Appellate Court rule related to reconstructing a record to apply to domestic violence cases where a hearing transcript is unavailable.
The process for reconstructing the record is flexible and driven by the judge. The goal is to recreate a record that provides “reasonable assurances of accuracy and completeness.” The decision suggests that a judge start with determining what facts if any, that led to the issuance of the FRO can be stipulated by both parties. Meanwhile, this ruling also gives the judge leeway to have the parties testify under oath or provide written statements regarding the underlying facts of the FRO hearing.
Do you have concerns about the modification or removal of an existing restraining order? Contact the Law Offices of Sam Stoia to see how we can assist you. There is no charge for our initial consultation.