What Proof Do You Need to Get a Restraining Order?

It is very easy to file a temporary restraining order against someone and much harder to have one removed. In New Jersey restraining order cases, the defendant has to go above and beyond to prove their innocence.

Restraining orders can cause job loss and extreme changes in daily life. Defendants will also lose their firearm rights. In certain cases, the defendant can lose custody of their children. The court can order them to leave their home and still pay the mortgage or rent and other financial support. Restraining orders can also impact what the defendant pays in child or spousal support.

To fight against a restraining order, it is crucial to work with a criminal defense attorney to build a defense for the final restraining order hearing. The first step will be evaluating the evidence and allegations used to file the temporary restraining order.

A Temporary Restraining Order vs. A Final Restraining Order

There are two distinctive types of restraining orders in New Jersey. They include domestic violence and sexual assault. In this article, we will focus primarily on domestic violence restraining orders.

A temporary restraining order is implemented until a court hearing is complete. The final restraining order takes effect after that court hearing and remains permanent. The only way for a final restraining order to be void is if the judge grants the victim’s request to vacate the order or a motion is filed to dissolve the restraining order.

Defining Domestic Violence

The State of New Jersey defines domestic violence as a pattern of “physical, emotional, verbal, and sexual abuse, which includes, but is not limited to, threats, intimidation, isolation, and/or financial control.” It can occur to anyone of all backgrounds. The legal definition of domestic violence specifically means that the violence occurs one or more times and could include any person protected under the Prevention of Domestic Violence Act of 1991 P.L. 1991, c.261 (C.2C:25-17 et al.)

Temporary Restraining Order

A temporary restraining order (sometimes called a TRO) goes into effect right away. It is issued in situations where the court believes a victim of domestic violence is in immediate danger. It will continue until the final hearing of the restraining order occurs. An ex parte TRO permits the judge to put the order in place even without hearing from or notifying the defendant in the case.

Final Restraining Order

A Final Restraining Order Hearing (FRO) occurs after a judge issues a TRO. A judge uses the hearing to allow the defendant to testify, call any witnesses they have, and present evidence that shows they do not deserve the alleged domestic violence charges or the FRO. Once a judge issues a final restraining order, it can remain in effect forever.

What Are the Grounds to File a Restraining Order in New Jersey?

There is a difference between the grounds necessary to file a TRO and an FRO. Obtaining a temporary restraining order is easier. All that is necessary is for a judge to believe there is sufficient evidence to prove a domestic violence crime occurred. Most of the time, just the victim alleging this with no real evidence is sufficient for the judge to issue a TRO.

To obtain an FRO, more in-depth requirements exist with higher legal standards. The standard of proof is still lower than it is in a criminal trial, though. Rather, it requires that a judge find by a preponderance of evidence to issue the FRO. The judge does not have to find beyond a reasonable doubt that an act of domestic violence occurred or that the FRO is needed to protect the victim.

What is a Preponderance of the Evidence?

A preponderance of evidence means that there is evidence that demonstrates that the criminal act occurred and is more likely true than not true. In the FRO hearing or any civil case, the evidence and testimony must convince a judge that the act probably occurred.

Types of Evidence Needed To File a Final Restraining Order

There are several types of evidence commonly found in domestic violence cases. If you were charged with domestic violence and have protective orders against you, it is critical to work with a restraining order lawyer.

Direct Evidence

Direct evidence proves a fact. It can include:

• Physical evidence of the incident
• Surveillance footage
• Photographs
• Text messages
• Recorded phone calls
• Witness testimony

Direct evidence tends to be fairly obvious. It may include text messages that demonstrate terroristic threats. Typically, this type of evidence is clear-cut and hard to disprove. The issuance of a TRO requires a lower level of evidence than an FRO. In a FRO, a judge sees what is occurring and believes the Court needs to put in place protections. A skilled defense attorney is able to make strategic decisions on how to attack direct evidence and cross-examine witnesses effectively.

Circumstantial Evidence

Circumstantial evidence requires a person to draw an inference to conclude that the incident actually occurred. This type of evidence may not be clear. For example, having a history of domestic violence could make one party seem as though they are more likely to engage in actions like this. Circumstantial evidence could also include a text message that does not directly relate to an incident but could infer an event.

In a civil case, including a temporary restraining order for domestic violence, there must be clear evidence that this type of incident took place.

How Long Does a Restraining Order Last in New Jersey?

A TRO can be issued immediately and remains in place for ten days. After that, it can be renewed as needed. Most of the time, it remains in place (with renewals as needed) until a hearing occurs and a judge makes a decision.

An FRO does not expire in New Jersey. Once a judge issues it, the only way it can be dismissed is through a process within the court. This is one of the key reasons to seek out a defense law firm if you are facing criminal charges for an act of domestic violence in New Jersey.

Build Your Case Against a Restraining Order

Once a temporary order is in place, a hearing is set up to discuss the domestic violence restraining order. This hearing allows for all evidence to be brought to the court to consider. It is beneficial to have legal representation in this situation.

Once all parties share their evidence for the criminal offense or defense against it, a judge will use a two-step process to decide whether or not to issue a FRO. That includes:

1. Determining if the act of domestic violence or other offense actually took place
2. Determining if a domestic violence restraining order is beneficial and necessary for a person or a piece of property

Criminal Defense Attorneys Provide Legal Guidance

When working with legal representation, your attorney will provide legal advice specific to your criminal offense. Generally, we provide several bits of guidance during this time.

• Do not text, call, or otherwise contact the person in any way.
• Stay away from the person no matter what. If you see them in public, leave.
• Do not go to the house to pick up the mail or otherwise visit the property.
• Remove yourself from that person’s life.
• Avoid deleting any text messages, emails, or other forms of communication with the person. Instead, provide this information to your attorney.

If possible, your attorney may work with you to come to a civil restraint agreement with the other party. That means the other party agrees to drop the charges and move on with usually an agreement not to contact each other. It is critical that you personally do not engage in this process yourself because it could lead to additional charges including contempt.

These steps allow you to prepare for the hearing. You should also gather and keep all evidence available in the case and avoid anything that could be seen as a violation of the court order. Evidence that may be used to build your case could include:

• Phone calls
• Text messages
• Location information or GPS data
• Witness testimony

Enlist Our Help in Building Your Restraining Order Case Today

Remember, a final restraining order is forever. Hiring an experienced attorney can help build your defense by gathering evidence and understanding the court process. You can make an appointment with a Lackey & Miller criminal defense attorney by calling 856-399-0089 or contacting us online.