Domestic Violence Series — Part I
You may have heard the expression that a grand jury could indict a ham sandwich. Well, it is not a great leap to say the same about a temporary restraining order. It’s just not that hard to get one. This series will give you some general information about the process of obtaining a Restraining Order beginning with the Temporary Restraining Order (TRO) and the procedure that follows to determine whether the TRO is converted to a Final Restraining Order (FRO).
If you are the applicant, you can go to your local courthouse during business hours and make an application for a temporary restraining order. You will go before a judge that day, provide testimony and any other evidence available at that time about the incident(s) that have caused you to make the application and the judge will decide at that time whether there is sufficient cause to enter a temporary restraining order at that time. If you want to make the application when the courthouse is closed, then you can go to your local police department to do that.
Most of the time, requests for a temporary restraining order are granted. However, you do have to do a little more than just show up. There are some requirements that must be met. You must allege acts that satisfy at least one of the predicate acts of domestic violence enumerated in the Prevention of Domestic Violence Act. It is a popular misconception that “domestic violence” is limited to assault or physical violence. The acts that can amount to domestic violence as provided by the statue are as follows:
- Terroristic threats
- Criminal restraint
- False imprisonment
- Sexual assault
- Criminal sexual contact
- Criminal mischief
- Criminal trespass
Each one of these requires specific conduct as defined by the law. If the person who is being accused of domestic violence has engaged in conduct that meets the legal definition of at least one of these, it is very likely that a temporary restraining order will be granted. The conduct must also have been perpetrated against a person who is at least 18 years of age. Therefore, the applicant cannot obtain a temporary restraining order only to protect a minor child. If you are applying for a temporary restraining order solely to protect a minor child, DCP&P (formerly DYFS) is the designated agency to handle such matters.
Generally, the applicant must also demonstrate that he or she is in fear of his or her safety. However, that requirement can be easily satisfied through testimony at that time. Since the Defendant is almost never present when these applications are made, there is no one present to refute or deny any of the applicant’s allegations. This is the very reason that a subsequent court date is scheduled at which time the defendant is entitled to respond to the allegation.
Prior to a final hearing, the local police will be provided a copy of the temporary restraining order entered by the Court and will be responsible for serving the temporary restraining order on the defendant. The temporary restraining order usually allows the protected party to continue to reside in the home, which means if they are both living together, the defendant will be removed from the home pending the results of the final hearing. Our next two installments of this series will explain what happens at the final hearing and how you can protect your interests, whether you are the plaintiff or the defendant.
A temporary restraining order is a serious matter which can have a tremendous impact on your life, whether you are the plaintiff or the defendant. If you are contemplating applying for a temporary restraining order, time is of the essence. Due to the emergent nature of a temporary restraining order, you shouldn’t wait long to make an application if a domestic violence event has occurred. If you are seeking guidance on what information you should have in order to be properly prepared to make a temporary restraining order application, contact us. Or if you have been served with a temporary restraining order and need advice about the final hearing, contact us.