A final restraining order can have serious consequences on a person. On the other hand, it can possibly save the life or improve the life of a domestic violence victim. Either way, male or female, husband, boyfriend, girlfriend and so forth, the courts follow case-law and the domestic violence statute. Aside from the obvious, whether you were dating, were married, are married, have children together or not, there are twelve key factors in determining whether a temporary restraining order should become, final. Crimes that are covered under the prevention of domestic violence act are:
- Assault NJSA 2C: 12-1
- Criminal Mischief NJSA 2C: 17-3
- Harassment NJSA 2C: 33-4
- Terroristic Threats NJSA 2C: 12-3
- Criminal Sexual Contact NJSA 2c: 14-1 and / or 2C: 14-3
- Sexual Assault NJSA 2C: 14-1
- Kidnapping NJSA 2C: 13-1
- Stalking NJSA 2C: 12-10 and / or 10.1
- Lewdness NJSA 2C: 14-4
- Criminal Trespass NJSA 2C: 18-3
- Burglary NJSA 2C: 18-2
- False Imprisonment NJSA 2C: 13-3
So while these are the list of crimes that are covered in domestic violence cases, committing one crime does not need to mean that a final order will be issued. A domestic violence hearing is not a criminal proceeding but a civil one held in the various family courts in New Jersey. Criminal charges can be filed at the police station if the victim calls the need for immediate police intervention or even after the incident occurred. In the local area we serve: Judge Mark Baber, Judge Gerard Breland and Judge Maureen Mantineo of Hudson are the judges who decide restraining order hearings. Elswehere, Judge Beacham, Judge Epstein, Judge Harris, Judge Gaus, Judge Siegel Hear the cases out of Essex and Bergen.
To determine whether a final order is required, the Judge must view all the admitted evidence (police reports, medical records, pictures, records, and any other evidence you may have). The victim will testify first and try to make the case as to why a final order is needed. The victim is also allowed to testify to whether there has been a history of domestic violence between the parties wherever reported or unreported. The Defendant then has the opportunity to cross-examine the witness or witnesses. A witness's credibility is a key factor and is on center stage as to whether the Judge believes the testimony. At that point, the Defendant can take the stand, can call witnesses to refute or impeach the testimony of the victim and then the Judge will decide.
The factors a judge must consider as to whether a final order should be granted as from credibility, proof and other factors is:
- The previous history of domestic violence between the parties, including threats, harassment and physical abuse;
- The existence of immediate danger to person or property;
- The financial circumstances of the plaintiff and defense;
- The best interest of the victim and any child;
- The existence of a verifiable order of protection from another jurisprudence.
So while you may think yelling at the victim in the past or getting into an argument with the victim was simply a relationship dispute, if framed correctly, it can be damning. It is critical to prepare for a final restraining order hearing because once a final order is issued, it is final absent good cause shown.