Part 2 Of Our Domestic Violence Series
This blog is intended to explain how a person in a Domestic Violence situation can get a Restraining Order. If you are a Defendant, (meaning someone got a Restraining Order against you), you will find this information helpful as well. We recommend that you read Part 1 first.
How do you get a Restraining Order?
This process begins by obtaining what is referred to as a “Temporary” Restraining Order (TRO). What this means is that you have obtained a temporary order restraining the perpetrator of the abuse from contacting you or being in your physical presence. It’s “temporary” until it has been determined by a judge whether it should either be converted to a Final Restraining Order, which is permanent, or whether it should be dismissed. (More on that below).
The way to obtain a TRO, under normal circumstances, is to go to your local courthouse and apply for one, if it’s during normal business hours. There is usually a domestic violence unit that can assist you as well as a domestic violence counselor. Keep in mind that these people are not attorneys and they are not qualified to give you legal advice. If it’s outside of business hours, then you should go to your local police station to apply.
Right now, as of this writing on April 2, 2020, we are in the midst of the Coronavirus pandemic, which requires social distancing and shelter-in-place rules. At this time, anyone who is in need of a TRO must go to their local police station to apply, which can be done anytime day or night. We strongly encourage anyone who feels unsafe and has been the victim of domestic violence to seek help from their local police and apply for a TRO.
So you got your Temporary Restraining Order (TRO). Now what?
Just by virtue of its name, it’s not permanent. It is only temporary until there is a final hearing at which time the judge will decide whether it is dismissed entirely or if it is converted into a Final Restraining Order (FRO). The reason for this is because when you apply for a TRO, the Defendant is not present, doesn’t know anything about it and doesn’t have an opportunity to tell his or her side of the story. That is the purpose of the Final Hearing.
What Happens at a Final Restraining Order Hearing in NJ?
You (the Plaintiff) will be expected to present your case. You might think you already did that when you applied for the TRO. However, this time, the Defendant (or his/her attorney) is permitted to be present and can respond to the allegations by cross-examining you, cross-examining any witnesses you may have testifying that day on your behalf, and by submitting his or her own evidence to the Court in his or her defense. Note that if the Defendant does not have an attorney, the questions for cross-examination will go through the judge. He or she is not permitted to address you directly to avoid potential harassment or intimidation.
Let’s examine what you have to do.
You have to prove by a preponderance of the evidence (that means it’s more likely than not that things happened the way you say they did) that a “predicate act” occurred. A “predicate act” is the event (or multiple events) you allege occurred that gave rise to the Restraining Order, such as an assault or harassment. (Note that this separate from the prior history, discussed more below).
Even if you have alleged multiple predicate acts, you only have to prove one of them by the preponderance standard to satisfy this first requirement. Since there are so many possible predicate acts, we cannot explain in depth here how to prove all of them. However, each act is described by statute. You should refer to the applicable statute as a starting point.
Next, you will have to testify as to the “prior history” of domestic violence, if any, that you have described in the TRO. These are important because the judge has to consider the totality of the circumstances, including any history of domestic violence, to evaluate whether there is a continuing need for a Restraining Order.
If you have evidence of any of these prior acts of domestic violence, you should have it present with you in court. However, this is often difficult to demonstrate. It often results in a “he said, she said” dispute. The judge will consider the credibility of your testimony, as well as the credibility of the testimony of the Defendant, to make findings as to whether these prior events occurred.
It is important to have any objective evidence available at trial, if it exists, such as an eye-witness who can testify about the events, or photographs, text messages, call logs, etc., relating to the predicate act(s) and any prior acts. Also note that if you have any police reports, these are generally considered inadmissible hearsay and will not be permitted as evidence. You will need the officer who prepared the report to testify at the hearing for you.
After you have presented your case, which includes presenting all of your evidence and your witnesses, the Defendant will have an opportunity to cross-examine you. That means he or she can ask you questions about any of the information you have testified to and any other information or events that are relevant to the proceeding. If the Defendant does not have an attorney representing him/her that day, he/she will tell the judge what questions to ask you and will not be permitted to talk to you directly. This may seem odd, but the intention is not to allow the perpetrator of domestic violence to have an opportunity to harass or intimidate you during this process.
Testimony generally occurs in a question-and-answer format by the attorneys. (If you have seen Law & Order, then you already know how this party works, but it’s never as easy or exciting as it looks on television). The Defendant, either through the attorney or the judge, will have an opportunity after you are done with your case, and after he or she has finished cross-examination(s), to present his or her case in the same fashion that you just did, i.e. testimony, witnesses, etc. That also means you can cross-examine him or her (and any witnesses) as well.
Once all of these Q and A’s have been concluded, if there are attorneys, they will usually present closing arguments summing up their respective clients’ testimony and persuasively presenting it in the context of the law that is applicable to the case. Then the judge makes a decision.
If the Court finds that a predicate act occurred and that there is a need for a Restraining Order to continue in effect (this is why the prior history is relevant) then the judge will enter a Final Restraining Order. However, if the court does not find that there is either a predicate act or that there is any need for a continuing order to prevent future acts of domestic violence, the judge will dismiss the Temporary Restraining Order and it goes away completely. If it’s dismissed, that means you no longer have the protection of a Restraining Order.
Do You Need a Lawyer for a Restraining Order Hearing?
We are often asked, “Do I need an attorney to represent me for this?” Well, it’s probably similar to pulling your own tooth. You could probably do it yourself, but you won’t really know what you’re doing and it will be a lot more painful.
You can see just from this description that this is a fairly technical proceeding that does require some level of expertise and skill to be presented in the most persuasive manner possible. There are plenty of people who go to court on their own and are successful; however, there are also people that come into our office after the Temporary Restraining Order has been dismissed. By then, it’s too late. You only get one chance to do it.
We also need to emphasize that the explanation provided here is an oversimplified explanation of this process and the applicable law. We couldn’t possibly explain the entire procedure in this blog. Therefore, you should not rely upon this information in place of legal advice. At the very least, you should consult with an attorney prior to the hearing to advise you and then you can decide whether you want to hire an attorney to do the work for your or go it alone.
Contact us for a consultation if you would like to know more.