New Jersey Defense Lawyer & Former Prosecutor
Defending Restraining Orders
An encounter with the police as a result of a temporary restraining order or alleged violation of a final restraining order can be frightening. In either scenario, it is typical for the accused to be arrested and for bail to imposed. The criminal defense lawyers at the Law Offices of John F. Marshall are prepared to defend you. Our law firm is a statewide practice which defends restraining orders throughout the State including Monmouth County, Union County, Hudson County, Middlesex County, Ocean County, Somerset County, Essex County and Mercer County. The following is a summary of the issues concerning issuance of a temporary restraining order and a final restraining order. For information on the related issue of what is involved when a restraining order is violated, please consult our Restraining Order Violations page.
Standard & Procedure for Obtaining a Restraining Order in New Jersey
The procedure in New Jersey for obtaining a Restraining Order is set forth in NJ Court Rule 5:7A, which provides, in pertinent part, as follows:
Application for Temporary Restraining Order.
Except as provided in paragraph (b) herein, an applicant for a temporary restraining order shall appear before a judge personally to testify upon the record or by sworn complaint submitted pursuant to N.J.S.A. 2C:25-28. If it appears that the applicant is in danger of domestic violence, the judge shall, upon consideration of the applicant's domestic violence affidavit, complaint or testimony, order emergency relief including ex parte relief, in the nature of a temporary restraining order as authorized by N.J.S.A. 2C:25-17 et seq.
(b) Issuance of Temporary Restraining Order by Electronic Communication.
A judge may issue a temporary restraining order upon sworn oral testimony of an applicant who is not physically present. Such sworn oral testimony may be communicated to the judge by telephone, radio or other means of electronic communication. The judge or law enforcement officer assisting the applicant shall contemporaneously record such sworn oral testimony by means of a tape-recording device or stenographic machine if such are available; otherwise, adequate long hand notes summarizing what is said shall be made by the judge...
(c) Temporary Restraining Order.
In court proceedings instituted under the Prevention of Domestic Violence Act of 1990, the judge shall issue a temporary restraining order when the applicant appears to be in danger of domestic violence. The order may be issued ex parte when necessary to protect the life, health, or well-being of a victim on whose behalf the relief is sought.
(d) Final Restraining Order.
A final order restraining a defendant shall be issued only on a specific finding of domestic violence or on a stipulation by a defendant to the commission of an act or acts of domestic violence as defined by the statute.
(e) Procedure Upon Arrest Without a Warrant.
Whenever a law enforcement officer has effected an arrest without a warrant on a criminal complaint brought for a violation otherwise defined as an offense under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq., bail may be set and a complaint-warrant may be issued pursuant to the procedures prescribed in R. 3:4-1(b).
Rule 5:7A requires a showing of "domestic violence" for a temporary restraining order to be issued. Essentially, a municipal court or superior court judge must find credible evidence to believe that an act of domestic violence has occurred. The definition of "domestic violence" is contained in New Jersey Statute 2C:25-28 and requires the commission of one or more of the following offenses:
(1) Homicide N.J.S. 2C:11-1;
(2) Assault N.J.S. 2C:12-1;
(3) Terroristic threats N.J.S. 2C:12-3;
(4) Kidnapping N.J.S. 2C:13-1;
(5) Criminal restraint N.J.S. 2C:13-2;
(6) False imprisonment N.J.S. 2C:13-3;
(7) Sexual assault N.J.S. 2C:14-2;
(8) Criminal sexual contact N.J.S. 2C:14-3;
(9) Lewdness N.J.S. 2C:14-4;
(10) Criminal mischief N.J.S. 2C:17-3;
(11) Burglary N.J.S. 2C:18-2;
(12) Criminal trespass N.J.S. 2C:18-3;
(13) Harassment N.J.S. 2C:33-4; and
(14) Stalking N.J.S. 2C:12-10.
Where a reasonable basis exists to believe that one or more of the previously mentioned offenses has occurred, a temporary restraining order shall be granted. The restraining order shall bar any contact between the parties and failure to obey the restraining order shall result in a criminal violation. It should also be noted that New Jersey requires that all temporary restraining orders provide for seizure of weapons in the possession of defendant. The police officer serving the restraining order is also required to "seize any firearm purchaser identification card or permit to purchase a handgun issued to the person accused of the act of domestic violence".
Within ten (10) days of issuance of the temporary restraining order, a hearing is to be conducted by a Superior Court Judge in the Family Division to determine whether or not the temporary restraining order shall become a final restraining order. This is the stage and forum for our criminal defense attorneys to present your side of the case. It is imperative that individuals take advantage of this opportunity because issuance of a final restraining order has significant implications including, but not limited to, the fact that they will be arrested for a criminal offense in the event that the plaintiff alleges a violation of the restraining order in the future.
The defense attorneys at the Law Offices of John F. Marshall are experienced in defending clients at restraining order hearings and shall make sure that you are given every opportunity to avoid imposition of a final restraining order. Please do not hesitate to contact our office for a free initial consultation if you have an issue concerning a temporary or final restraining order in New Jersey, including Ocean County, Monmouth County, Middlesex County, Union County, Somerset County, Essex County, Hudson County or Mercer County.