Essex County Domestic Violence Defense Lawyer.

If you were served with a temporary restraining order in Essex County, New Jersey, it is important that you have proper legal representation at your hearing to avoid entry of a final restraining order that will have far reaching consequences. The case will usually be heard within 10 days of the date that the temporary restraining order is issued. At the hearing, evidence will be submitted by both sides and either party may call witnesses. At the end of the hearing the judge will either enter a final order of protection or dismiss the application.

The Consequences

If the judge enters a final restraining order, you will be barred from having contact with the alleged victim including both direct contact and electronic contact. You may also be prohibited from returning to your home, regardless of whether you have an ownership interest in the home. A final restraining order has no expiration date. It remains in effect until a court dissolves it. That is a serious matter because a final order means firearms disqualification in New Jersey. There is also a federal firearms ban triggered by an order for protection.

A restraining order puts your name in a statewide domestic violence registry that police can see. Unlike a criminal charge, there is no expungement. If there are children in the home, a final restraining order can result in temporary custody going to the non-abusive parent. This can affect the later custody case.

A lot of people think about a restraining order’s impact on where they can go and what they can do, but they should think about the consequences for their jobs. A final restraining order is not a criminal charge, but it can be just as damaging to a career, especially a career in law enforcement, the military or a licensed profession.

Your temporary restraining order was granted by a judge without your side having a chance to tell its story. The police serve it, and the court will give you no lawyer, but you can hire one and ask for a new hearing date. The restraining order hearing is in the Family Part of the Superior Court, within 10 days after the complaint, by law but can be postponed; a final order means fingerprinting, in addition to other consequences.

To get a final restraining order, a person must show two things.

• First, that an offense like harassment or assault occurred.
• Second, that a restraining order is necessary to stop further abuse.

In deciding a restraining order, a judge uses the civil standard, preponderance of the evidence, rather than the criminal standard, beyond reasonable doubt. The average couple has arguments now and then. The fact that these occasionally become loud does not justify a court order. On the other hand, a serious physical attack can make the need for an order self-evident.

The Essex County Prosecutor’s Office has a Domestic Violence Unit that can seek forfeiture of guns and gun permits in addition to prosecuting violations of a domestic violence order. This unit was founded in 1992. Violation of a restraining order can be a criminal matter rather than simply civil. An act that is also a separate offense like harassment can result in a fourth-degree contempt charge, which carries penalties of up to 18 months in prison, while other violations can result in a disorderly persons charge, punishable by up to six months in jail. State law creates a presumption against Pretrial Intervention in cases of domestic violence in which the alleged act involved actual violence or happened when a restraining order was in place.

Public defenders can represent people who do not have the funds to hire an attorney on their own. This service is available for indictable charges but not for restraining orders themselves. The court makes the decision on the 5A form.

Defending an Application

In most applications for a restraining order, there is genuine concern about abuse. There are also some cases where the order is a tool for leverage in a divorce or custody fight. Judges hear that accusation a lot and seldom find it convincing on its own. In defending an application, you will need to attack the statutory elements, not just respond that the order is leverage.

You should obey the terms of any temporary order to the letter and resist the temptation to contact the other party even if to apologize or to clear up a misunderstanding. An act of communication might give the other side the best evidence it has that a final restraining order is necessary. Do not contact the other person even through a friend.

A restraining order case is decided in open court at a hearing, and it is wise to use the days before it to save texts, emails, call logs, and photos relevant to the dispute and to jot down names of witnesses and events from the time period of the dispute. At the hearing, witnesses from both sides will testify, and you and the accuser will have the right to cross-examine each other. The hearing functions much as a mini-trial does, and that is why it is wise to prepare accordingly.

Whatever you do, attend your hearing. A missed hearing date invites the worst result because the judge may enter a final order by default with all of those consequences and little second chance. If a final restraining order is entered, you may file a notice of appeal with the appellate division within 45 days of the signed judgment.

Removing a restraining order is not automatic after a set period. It takes a formal application to the court after which a judge will consider factors like whether the victim still fears you and will consent to remove the order and whether you have completed any counseling. The victim’s position weighs heavily in the court’s decision.