T.M.S. v. W.C.P. - Reinstatement of a Dismissed Restraining Order

The New Jersey legislature and courts have prioritized creating and enforcing laws to protect victims of domestic violence. The Prevention of Domestic Violence Act contains provisions providing for victims of domestic violence to obtain protection immediately as well as protection extending into the future. The Act allows victims to seek and obtain a permanent restraining order against their abusers. In some situations, permanent restraining orders can be modified in the future. In TMS v. WCP, the issue of dismissing and later reinstating a domestic violence restraining order came before the appellate court in New Jersey.

In that case, in 2006, the Plaintiff obtained a permanent restraining order against the Defendant. Later on, the Defendant sought to vacate the restraining order, based on the factors set out in Carfagno v. Carfagno and New Jersey Statute 2C:25-29(d). According to the rules set out therein, a court may dismiss and dissolve a permanent restraining order where there is “a change in circumstances such that the continued enforcement of the injunctive process would be inequitable, oppressive, or unjust, or in contravention of the policy of the law.” The court must also consider the factors set out in Carfagno, which include whether the victim is afraid of the defendant, the nature of the relationship between the parties at the time of the hearing, the number of times the defendant has violated the order, and a variety of other important factors designed to help continue to protect a victim of domestic violence. In this case, the Plaintiff did not appear at the hearing and the court dismissed the restraining order. The plaintiff’s attorney later appeared at a subsequent hearing wherein the defendant sought to lift the weapons forfeiture restriction, and stated that the plaintiff was never served notice of the request to dismiss the restraining order. The judge then sua sponte reinstated the restraining order. The appellate court reversed the trial court. The appellate court determined that the trial court could not take this action on its own. Instead, the plaintiff was required to file her own motion requesting reinstatement of the order. The appellate court determined that to allow a judge to reinstate the order under his or her own action was a violation of the defendant’s constitutional rights.

If you have questions about restraining orders and the impact of domestic violence on your case, contact us today at (732) 529-6937. We can review your case together and answer your questions on possible outcomes.
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