Obtaining a Restraining Order Pursuant to New Jersey's Prevention of Domestic Violence Act
New Jersey’s Prevention of Domestic Violence Act: Requirements for Obtaining a Final Restraining Order
In New Jersey, obtaining a Final Restraining Order (FRO) is a critical legal step for victims of domestic violence seeking permanent protections from their abuser. In New Jersey the legal standard required for a FRO is embodied in the case of Silver v. Silver, which requires proving both a "predicate act" of domestic violence and the need for future protection from the abuser. Understanding these two prongs, and how to prepare a case to address them, is crucial for anyone navigating the FRO process.
The Two-Prong Test for a Final Restraining Order (FRO)
To secure a FRO in New Jersey, a plaintiff must satisfy both parts of the Silver test by a "preponderance of the evidence." This is a legal standard often explained as meaning it's "more likely than not" that the claims are true. That is, the evidence and testimony do not need to be 100% certain, but they must be at least 51% likely. This standard is significantly lower than the "beyond a reasonable doubt" standard used in criminal cases.
Preponderance of the evidence merely requires a convincing presentation of the facts through credible evidence and persuasive testimony from witnesses.
Prong One: Establishing a Predicate Act of Domestic Violence
The first step requires the court to determine if a "predicate act" of domestic violence, as defined by New Jersey's Prevention of Domestic Violence Act (PDVA) (N.J.S.A. 2C:25-17 et seq.), has occurred. A predicate act refers to a specific, defined act of domestic violence that must have occurred recently and which prompted the victim to seek protections from the Court. The statute lists nineteen specific acts of domestic violence that qualify, including the following:
Homicide: Attempted killing of another.
Assault: Physical harm or threat of physical harm.
Harassment: A course of alarming conduct or repeated acts done with the purpose to alarm or seriously annoy another person. This includes offensive communication, offensive touching and other course of alarming conduct or repeatedly committed acts. This may be the most common predicate act alleged by itself or in combination with others. The purpose, or willful intent of the defendant, is a critical factor. That is, the behavior must not only be upsetting, but must have been done with the specific purpose to alarm or seriously annoy the victim.
Terroristic Threats: Threats to commit a crime of violence.
Stalking: A course of conduct directed at a specific person that would cause a reasonable person to fear for their safety or the safety of a third person or to suffer emotional distress.
Criminal Mischief: Damaging property.
Criminal Trespass: Unlawfully being on someone's property.
Criminal Coercion: Threatening a person to force them to do something they do not want to do, or to stop them from doing something that they do.
Sexual Assault/Criminal Sexual Contact/Lewdness: Non-consensual sexual acts or exposure.
False Imprisonment/Kidnapping/Criminal Restraint: Unlawful restriction of a person's movement.
Cyber-harassment: Harassment conducted through electronic communication.
Burglary: Breaking into a building with the intention of committing a crime inside.
Contempt of a Domestic Violence Order: Breaking any rule of a domestic violence restraining order.
Any other crime involving risk of death or serious bodily injury.
The purpose behind the alleged act is paramount, particularly in cases of harassment. The Court must find that the alleged abuser’s harassing acts were made with the purpose to alarm or seriously annoy the alleged victim. Mere awareness that someone might be alarmed or annoyed, is insufficient to establish harassment.
Prong Two: Demonstrating the Need for Future Protection
If a predicate act is proven, the court must then determine if a FRO is necessary to protect the victim from immediate danger or future acts or threats of violence. This assessment takes a "totality of the circumstances" approach, meaning the court considers all relevant factors, including:
The previous history of domestic violence: This includes any prior threats, harassment, or physical abuse, even if they did not lead to charges or restraining orders. A pattern of continued harassment is often necessary to establish a need for protection from future acts of domestic violence.
The existence of immediate danger to person or property: Whether there is an ongoing threat that requires the court's intervention.
The nature of the relationship between the parties: The history and dynamics of the relationship.
Whether the victim fears the defendant: The victim's subjective fear is a significant factor.
If the first prong (predicate act) is based on physical force or violence, the second prong (need for protection) is "most often perfunctory and self-evident." However, for other predicate acts, such as harassment, the court must carefully analyze the prior history of domestic violence, including harassment, between the parties.
If you are seeking an FRO, you will need to prove that a predicate act occurred and that you have a need for the order of protection. To do so, consider the following:
Evidence: Gather all evidence you have that will prove the domestic violence alleged, including witnesses, text messages, photographs, recordings, etc.
Prior History: Detail any and all prior instances of domestic violence -- even if they did not result in a restraining order or charges. Showing a pattern of abusive behavior is important.
Explain Your Fear: Clearly articulate why you fear the defendant and why a FRO is necessary for your safety.
Impact on Your Life: Explain how the defendant's actions have impacted your emotional well-being, daily life, work, or ability to feel safe.
Whether you are the party seeking an FRO or defending against the accusation, the attorneys at Maleski, Eisenhut & Zielinski, LLC are available to assist you to carefully review your situation and help you assess your rights and options.
Important Note: If you are a victim of domestic violence, it is important to seek immediate assistance and legal counsel. You can contact the National Domestic Violence Hotline (1-800-799-SAFE), the New Jersey Domestic Violence Hotline (1-800-572-SAFE), your local police or courthouse for guidance and resources.