Fighting a Restraining Order in New Jersey
When divorce proceedings are especially heated, particularly where children are involved, allegations of domestic violence may arise. If you are suddenly facing untrue allegations of domestic violence and a protection order keeping you from your spouse or children, how can you respond? What rights do you have? Continue reading to learn how to defend against a restraining order in a New Jersey divorce and reach out to an experienced New Jersey domestic violence family law attorney for help with a New Jersey family law matter.
Grounds for a restraining order
In order to get a restraining order against you, the petitioner must prove (1) that you were in an intimate relationship with them, now or in the past, and (2) that you committed one of the underlying crimes warranting the issuance of a restraining order, such as harassment, assault, or stalking. Note that a restraining order and criminal charges are completely different and separate matters; no criminal charges need to be filed in order to give rise to a claim for a restraining order.
If you were not married to the person seeking the restraining order and you do not share any children, you may be able to argue that you were not in the kind of dating relationship necessary for a restraining order. Assuming you are dealing with a spouse or other significant other, however, your defense will focus on disproving the allegations of underlying criminal activity.
For example, if your spouse accuses you of physical violence or harassment, you and your attorney will work to undermine those allegations. The person seeking the restraining order has the burden of proving the underlying abuse or harassment. You and your attorney will, in turn, defend against these allegations as you would in a criminal matter. You will be able to present evidence and witness testimony on your behalf. Unfortunately, these matters often turn on the credibility of witness testimony. Any prior history of domestic violence will weigh strongly in favor of a restraining order.
TROs and FROs
A party seeking a restraining order can immediately get a temporary restraining order (TRO) to prevent the alleged abuser from having any contact with the alleged victim. The court can issue a TRO without a hearing and without even notifying the alleged abuser until afterward. The court must, however, schedule a hearing within ten days of the TRO, unless additional time is requested. At the hearing, the alleged abuser can challenge the order. If the court believes the order is necessary to protect the alleged victim, the court can convert the TRO into a final restraining order (FRO).
Do not violate the order
It is extremely important that you do not violate the court’s protection order while the matter is being resolved. If you are subject to a temporary or final restraining order, regardless of whether you know the allegations to be false, you cannot simply violate the restraining order and approach your former spouse or your kids. Violating the order is only going to strengthen the case against you and ruin your chances of having the order lifted. Moreover, violating a restraining order can subject you to criminal charges and jail time.
You must fight the order in court, through the proper channels. Let your attorney handle any communications that you must direct to your ex. The only way to have the order lifted and avoid any additional complications is to fight the order in the appropriate venue.
Call a New Jersey Domestic Violence Family Lawyer for Help
If you’re in need of knowledgeable, compassionate, and talented legal help with alimony, child support, or other family law matters in New Jersey, contact the Union offices of family law attorney John B. D’Alessandro at 908-964-0102.