Understanding the Process of Defending Restraining Orders in New Jersey


Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Domestic Violence Attorney

page_3Dealing with local police because of a temporary restraining order or alleged violation of a final restraining order is intimidating and frightening. Anyone accused (man or woman, but likely a man) will be arrested and a request for bail made. The lawyers at Hanlon Niemann are prepared to defend you. Our law firm is statewide in practice including Monmouth County, Ocean County, Middlesex County, Mercer County, Somerset County, Union County, and Burlington County. Understand the issues concerning issuance of a temporary restraining order and a final restraining order in this site. For more information on this topic and what happens when a restraining order as discussed.

To better understand the process of defending a charge of domestic violence, you first need to understand the procedure for obtaining a restraining order in New Jersey

The procedure in New Jersey for obtaining a Restraining Order is discussed at length in NJ Court Rule 5:7A. This rule recites (in pertinent part) that:

(a) Application for Temporary Restraining Order

An applicant for a temporary restraining order must appear before a judge personally to testify (under oath) about what happened or by a sworn complaint reciting the facts about the complaint. If a judge believes the applicant to be in danger of domestic violence, the judge will (after consideration of the domestic violence affidavit, complaint or testimony) order temporary emergency relief called a temporary restraining order.

Issuance of Temporary Restraining Order by Electronic Communication

Sometimes a judge will issue a temporary restraining order upon the sworn oral testimony of a person who is not physically present before the judge. Such sworn oral testimony may be communicated to the judge by telephone, radio or other means of electronic communication. The judge and/or policeman who is present with the applicant will contemporaneously record the person’s sworn oral testimony if available; otherwise, adequate long hand notes summarizing what allegedly happened will be made by the judge.

Issuance of a Temporary Restraining Order Without Notice to an Accused

A judge will issue a temporary restraining order when a person (victim) reasonably appears to be in danger of domestic violence. The order may be entered even without the knowledge of the accused if the judge assigned to the case believes it to be necessary to protect the life, health, or well-being of a victim on whose behalf the relief is sought.

Issuance of a Final Restraining Order (FRO)

A final order restraining an accused will be issued when a judge concludes after a hearing with specific factual findings that domestic violence did in fact occur or upon a stipulation by the accused that he or she committed an act of domestic violence.

Procedure For Arrest of a Suspected Domestic Violence Without a Warrant

Whenever a policemen makes an arrest without a warrant on a complaint brought under the Domestic Violence Act (N.J.S.A. 2C:25-17 et seq.) bail may be set (at the discretion of the court). New Jersey Court rule requires a showing of “domestic violence”. What must happen is that, a municipal court or Superior Court judge must find there to be credible evidence that an act of domestic violence occurred. The definition of “domestic violence” is found in New Jersey Statute and requires the commission of one or more of the following offenses:

  1. Homicide;
  2. Assault;
  3. Terroristic threats;
  4. Kidnapping;
  5. Criminal restraint;
  6. False imprisonment;
  7. Sexual assault;
  8. Criminal sexual contact;
  9. Lewdness;
  10. Criminal mischief;
  11. Burglary;
  12. Criminal trespass;
  13. Harassment; and
  14. Stalking

Where a reasonable basis exists to believe that one or more of these offenses has occurred, a temporary restraining order will be issued by the court. The entry of a restraining order bars any contact between the parties. Failure to obey the restraining order constitutes a criminal offense that can result in another arrest and criminal charge. It should be noted that New Jersey requires that all temporary restraining orders provide for the seizure of weapons in the possession of defendant. The police officer serving the restraining order is also required to “seize any firearm purchaser identification card or permit to purchase a handgun issued to the person accused of the act of domestic violence”.

Within ten (10) days of issuance of the temporary restraining order, a hearing is to be conducted by a Superior Court Judge in the Family Court to determine whether or not the temporary restraining order is to become a final restraining order. This is the time and place for the Hanlon Niemann attorneys to represent your side of the case. It is imperative that you defend yourself because issuance of a final restraining order has significant implications including, but not limited to, the fact that you will be arrested for a criminal offense in the future if the accused alleges a violation of the restraining order.

New Jersey is very serious in its attitude to domestic violence. The police or County Sheriff’s Officer(s) are required to arrest you if the accuser — a wife, girlfriend, cohabitant, or any family or household member — shows any sign of injury. Even without evidence of the above, a person may still have you arrested when there is no obvious sign of injury. In response to an accusation of domestic violence or spousal abuse, a municipal court judge will often issue a restraining order against you as an accused person. There is no presumption of innocence.

If accused of domestic abuse or wish to make an accusation of domestic violence, contact a NJ domestic violence lawyer immediately.

You may not realize how serious a charge of domestic violence is. Do not make the mistake of giving any statement to the police or your accuser/victim without an attorney present. You may innocently state something that will have long-lasting consequences for yourself personally, your family and your financial well-being. If you would like to speak with an attorney from our office, contact the Law Offices of Hanlon Niemann at fniemann@hnlawfirm.com or call us toll-free at (855) 376-5291. An attorney from our office will be assigned to defend you.

Domestic Assault and Civil Restraining Orders

At any time of day or night a municipal court judge or Superior Court Judge can, on minimum evidence, issue a Restraining Order against a person which can have a devastating effect on your finances and rip your family apart. The order may require you to:

  • Leave your home
  • Refrain from contact or communication with your accuser and your children (even telephone or e-mail contact)
  • Compel you to make mortgage or rent payments and pay support, even though you are not able to enter your home

A second Violation of a Restraining Order automatically results in a jail sentence. Whether the charge of domestic violence resulted from an angry argument or you are in the midst of an ugly divorce and your spouse is trying to force you to accept a property or child custody agreement, you cannot ignore it. As your legal counsel, our lawyers will represent you and try and resolve the matter with your accuser. Domestic violence charges can be withdrawn, and at that point the court may terminate the restraining order. The prosecutor and court may agree to drop charges if you participate in anger management classes. We will work to get you reasonable visitation with your children, and protect your rights in all legal proceedings while your case is pending.

Domestic violence charges are often filed in connection with other crimes or as leverage in emotionally charged domestic relations cases, i.e. divorce, separation, guardianship, competency hearings, etc. At Hanlon Niemann, a goal of our attorneys will be to work with you and the accuser to have the charges reduced through plea bargains or dismissed altogether, or if the facts warrant, be prepared to defend you of the domestic abuse or assault charges filed in connection with:

  • Harassment
  • Terroristic Threats
  • Stalking
  • Spousal abuse
  • Marital rape
  • Juvenile offenses
  • Property crimes such as malicious mischief or trespassing
  • Assault and threat crimes
  • Violations of protection orders or restraining orders
Fredrick P. Niemann Esq.

Fredrick P. Niemann Esq.

Contact Fred Niemann personally today to discuss your domestic violence case. I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns. You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com.