Temporary Restraining Order, the Basics in New Jersey

January 25, 2010

If you have been issued a temporary restraining order in New Jersey, I am sure that you have many questions. I am  a NJ and Newark New Jersey criminal defense lawyer who defends those facing Final Restraining Order hearings (FRO), and if contacted early enough, can challenge the issuance of the temporary restraining order or TRO. I will address some of the more common questions that I am asked by clients inquiring about the restraining order procedure in NJ.

One of the initial questions I am asked is who decides whether a temporary restraining order is issued, and does the respondent have a right to be there for that determination? A judge or hearing officer typically makes the initial determination if a TRO should be granted to the plaintiff. Take note that restraining order proceedings are civil in nature, not criminal. The complaining party is called the plaintiff. I will talk more about this later in the article. Typically speaking, the party who is alleging the need for a restraining order will contact the police or family court directly. They will be interviewed by an officer of the court, possible a domestic violence advocate, or police officer. The accusations will be recorded and presented to a judge or hearing officer. The applicant will usually be present for the determination and tell the judge or hearing officer why it is they are seeking the order. However, the accused will almost never be present when the decision to grant a TRO is made. This may seem unfair, and to a certain extent it is. The legislature in the State has taken a better safe than sorry mentality, but the series of events that this determination triggers can be life altering.

In order for the TRO to issue,  the judge must find that 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.  This is a very elastic burden, and since the determination is made based upon the testimony of the applicant alone, TRO’s are not very difficult to obtain.

In addition, the applicant may also seek to file a criminal complaint against the respondent in connection with TRO. This means that the accused individual will not only be facing a civil final restraining order hearing, but also criminal charges in either the municipal or superior court, depending on the nature of the charges against him/her. These are separate proceedings with different burdens of proof, before different judges, etc. BUT the bottom line is if criminal charges are filed, the defendant will be have TWO cases, not one.As a result the defendant may be arrested and put in jail pending a bail determination

In some instances, the plaintiff will not file criminal charges. However, this is rare. In the event that criminal charges are not filed, the predicate act on which the TRO was issued will still be the subject of FRO hearing testimony. A predicate act is an element that the plaintiff must prove during a FRO. Simple assault, harassment, stalking, are examples of predicate acts.

Once the TRO issues, the defendant will be served. Sometimes service is not achieved. This does not relieve the defendant of the TRO. If service cannot be achieved, then the TRO could remain in place indefinitely (hypothetically). Violation of a TRO could result in the respondent’s arrest, even if he/she were unaware that the TRO issued. Obviously, failure to properly serve the respondent can be raised as a defense, but violation of a restraining order is a CRIMINAL OFFENSE, and will complicate things tremendously.

Upon issuance, the TRO will be scheduled for a FRO hearing within ten days.  It is during this period that the respondent can file an emergent application and challenge the issuance of the TRO. This is a time sensitive motion. However, in most cases, the first opportunity the respondent will have to rebut the allegation will be at the Final Restraining Order hearing.

The TRO and FRO procedure and hearing is a complicated legal process. It can be very confusing for a pro se litigant. The issuance of a FRO can affect employment, immigration status, etc. It is HIGHLY recommended that the accused contact an attorney who has experience in these matters. In my opinion,  it is highly unlikely that the self represented individual will have the same success that a trained lawyer can achieve. I am available 24/7 for free consultations and will answer all of your questions.