The Final Restraining Order (FRO) Hearing
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Domestic Violence Attorney
Obtaining a Final Restraining Order (FRO) involves a two stage process. First, the court must determine whether the victim is legally entitled to protection under the Act. If the court determines that protection is warranted, the court then engages in a second stage of fact finding determining what relief the FRO should contain.
An accused always has the right to testify and defend himself or herself at a hearing before a judge. This is a fundamental constitutional right. All parties to the case must be given the right to cross-examine the other party and any witnesses, no matter what.
Standard and Burden of Proof in a FRO Hearing
The victim has the initial burden of proof in establishing an act of domestic violence in a Final Restraining Order hearing. This means the victim needs to prove the allegations made against the accused by a preponderance of the evidence. Preponderance of the evidence means that the allegations made against the accused are more likely to have taken place vs. not taken place.
There Must Be a Victim Under the Act to Award a Final Restraining Order (FRO)
A victim is defined in the Domestic Violence Act, to include three categories of persons:
A Souse, Former Spouse, Household Member of Former Household Member. “Victim” means any person subjected to domestic violence, which is at least 18 years old, or emancipated and aggressor is a spouse, former spouse, present or former household member. The victim must be over 18 years old or emancipated in all situations except for dating relationships.
Those who have a child or will be having a child together. Regardless of age, “victim” includes any person subjected to domestic violence who has a child or who “anticipates having a child” with their aggressor. Presumably, the Legislature intended “anticipates” to mean actually pregnant, although no published case discusses the issue.
Those within a dating relationship. The statute also provides no reference to age in the third category of protected persons but merely provides that a “victim” also includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.”
A “dating relationship” is covered under the Act and also includes same-gender relationships. Because the “dating relationship” under the law does not refer to the age of a victim, a person under 18 may be able to obtain a restraining order against an aggressor if they are in a dating relationship and the aggressor is less than the age of 18 and emancipated. The definitions of the law define “domestic violence” as the occurrence of an act by an adult or an emancipated minor. Although teenage victims may be able to obtain an FRO against an aggressor who is over 18, under the current New Jersey law, teenage victims who are dating other teenagers under 18 do not have that protection.
Household Members as a “Victim” under the Domestic Violence Act
Unlike the definition of spouse or former spouse, the definition of a “household member” can be more difficult to define or describe. What is clear is that the person seeking the FRO must be over 18 years of age in order to file. Beyond that, to establish jurisdiction a plaintiff victim must demonstrate that the parties have a “family like” relationship.
While the term “household” is not defined in the Act, the New Jersey Supreme Court, has often disregarded the restrictive definition of a “family living together” found in Black’s Law Dictionary” where the parties did not live together for years but lived on the same block and interacted on a daily basis. The Appellate Division found the term “household” flexible enough to include non-related cohabitants. Clearly, the Domestic Violence Act contains no requirement that a household member be of the opposite sex, it applies to gay and straight equally.
Minors as Defined in a Domestic Violence Action Juvenile Justice Courts
Minors under the Act present special challenges. Generally, our courts look at the age of the aggressor. If the aggressor is over 18 (or 18 but not emancipated), a court may issue a restraining order if the victim meets the definition of a victim of domestic violence. If the aggressor is not yet 18 or emancipated, courts cannot issue a restraining order, unless the underlying crime is stalking. Other than in stalking situations, the victim will have to file for civil restraints, perhaps in juvenile court. But remember, the aggressor can also be charged with the underlying crime in juvenile court.
A court may grant a restraining order to an emancipated minor if he/she has a child, or anticipates having a child with the aggressor. An under-age victim may also receive an FRO if there is a dating relationship with the aggressor, as long as the aggressor is emancipated or over 18. Despite much media attention to the topic of teenage dating violence, currently in New Jersey, teenage dating relationships are not covered under the Act.
Again, the one exception is stalking. Any person regardless of age may get a protective order for stalking against another who is under 18. The court uses the same basic procedures as a domestic violence restraining order hearing, but assigns the matter a special “FO: docket number.
For young people under the age of 18,
“Domestic Violence” means the occurrence of …. Offenses that are inflicted by an emancipated minor upon a person protected under the Domestic Violence Act. “When one or more of these offenses is inflicted by an emancipated minor upon a person protected under this act, the occurrence does not constitute “domestic violence,” but may be the basis for the filing of a different petition or complaint.
“Emancipated minor” means a person who is under 18 years of age but who has been married, has entered military service, has a child or is pregnant, or has been previously declared by a court or an administrative agency to be emancipated.”
Here’s a quick reference to figure out who can obtain a final restraining order:
|Victim’s Age||Aggressor’s Age||Able to Obtain Final Restraining Order (FRO)|
|Over 18||Over 18||Yes|
|17 or younger||Over 18||Yes|
|17 or youngerNot emancipatedNor child in common||17 or youngerNot emancipatedNor child in common||**No except stalking|
** Typical dating relationships among teenagers are not covered under the Act.
Contact me personally today to discuss your violation of restraining order charge. You’ll find the members of our office to be easy to talk to, very approachable and we can offer you practical, legal ways to handle your matter. You can reach me toll free at (855) 376-5291 or e-mail me at firstname.lastname@example.org. I welcome your inquiry.